involuntary intoxication. Some of the decisions that deny the liability of a railroad company for running over a drunken trespasser lying on a track are explainable on the ground that the company owed no duty to keep a lookout for trespassers, and others, as already suggested, upon the ground that the negligence was regarded as continuing. These cases may, therefore, be harmonized, so far as the doctrine of "last clear chance" is concerned, with cases that hold the company liable under such circumstances."

Another class of cases in which there is less difficulty as to the question of continuing negligence (though there is a conflict in the decisions as to the company's liability, owing to the different views as to the duty to keep a lookout) is where a trespasser is overtaken upon a railroad trestle. It is obvious that it is often impossible for a person in that position to escape, by the exercise of due care, from the peril in which he has placed himself by his own antecedent negligence, while at the same time the performance by the engineer of his duty to keep a lookout, assuming that such a duty was incumbent upon him, would have given him the last clear chance to avoid the accident.

Still another class of cases in which the plaintiff's negligence may be regarded as having culminated before the defendant's, is where one negligently turns out stock, which finds its way upon a railroad track. In such a case, if it is held that the railroad company is bound to keep a reasonable lookout for stock (but as to that question there is much conflict), it is obvious that the performance of that duty might have afforded the engineer a chance to avoid the accident after any effort on the part of the plaintiff would have been unavailing. If the view of the doctrine of "last clear chance" herein suggested is correct, it follows that a statement to the effect that contributory negligence will prevent recovery for any but a wanton or wilful injury is, when strictly construed, entirely consistent with the doctrine of "last clear chance," even when the gravaman of the action is negligence. It is probable, however, that in some cases in which such statements are made the court intended to deny any such qualifications of the doctrine of contributory negligence as that involved in the doctrine of "last clear chance." In many of the cases, however, in which such statements are made, it is clear that negligence of the plaintiff, though it began before the defend

ant's breach of duty, nevertheless continued up to the very instant of the accident, and was, therefore, subsequent to, or at least concurrent with, the defendant's negligence. Where that is the case it frequently happens that the court simply applies the doctrine of contributory negligence without referring to any qualification of that doctrine, except that it does not prevent a recovery where the injury is wilful or wanton. While that manner of treatment is perfectly consistent with the doctrine of "last clear chance," if the view suggested is correct, it is nevertheless calculated to mislead one, unless he keeps clearly in mind that the non-continuance of the plaintiff's negligence is an indespensable prerequisite of the doctrine. It would promote clearness of view if the courts in such cases, instead of passing over the intermediate steps and going directly to the doctrine of contributory negligence, would discuss the case from the point of view of the doctrine of "last clear chance," and show that while one of the indispensable prerequisites of that doctrine-namely, a breach of duty on defendant's part, occurring after the commencement of plaintiff's negligence-was present, the other condition necessary to make the doctrine operate in plaintiff's favor-namely, the cessation of plaintiff's negligence at some time before the defendant's-was lacking, and, therefore, that the doctrine could not apply at all, or, if applied would operate against the plaintiff, because he, and not the defendant, had the last clear chance to avoid the accident. In most jurisdictions under the doctrine of "last clear chance," the plaintiff may recover, although he has negligently exposed himself to danger, if he is in a place where he has a right to be, without being a trespasser, if the defendant discovered, or ought in the exercise of reasonable care and caution to have discovered, his exposed condition in time by the exercise' of such care to have avoided injuring him and failing to exercise such care by which the injury would have been avoid. ed.18 Judge Thompson has said that the rule as applicable to street railways is as follows: "Although the driver of a vehicle, a foot-passenger, or a child may, through his own negligence, expose himself to the danger of being run over

(16) Birmingham, etc., R. Co. v. Brantley, 141 Ala. 614, 37 So. Rep. 698; Ming v. St. Louis, etc., R. Co., 108 Mo. App. 553, 84 S. W. Rep. 213; Memphis St. R. Co. v. Haynes, 112 Tenn. 712, 81 S. W. Rep. 374; Richmond, etc., R. Co. v. Gordon, 102 Va. 498, 46 S. E. Rep. 772.

by a street car-if the driver, gripman or motorman sees his exposed condition in time, by the exercise of ordinary or reasonable care in giving him warning or in checking his car, to avoid running over him or injuring him, but nevertheless fails to do so, he is guilty of negligence such as will make the company liable for the injury which follows."17 A few of the courts have refused to apply the rule except where it appears that the employees of the company actually discovered the exposed and dangerous situation of the traveller.18 It is said in Elliott on Railroads,19 in referring to the foregoing rule, "This may be, and we think is, the better rule as to trespassers upon the track of an ordinary commercial railroad company and the like, but not where as is usually true in the case of a street railway company, the track is in the street where others have an equal right to go and must be expected."20 This would seem to be the better rule. The rule which seems best and which is applied by a majority of the courts, is that a defendant is not required to keep a lookout to discover the danger to which a trespasser may have exposed himself in going upon a private right of way, and a defendant in such case will not be liable for the injury unless he actually saw the plaintiff's exposed situation and failed to exercise ordinary care to avoid the injury, while street railway companies are required to use ordinary care to discover the exposed situation of travellers.

Indianapolis, Ind.

GEORGE W. PAYNE.

(17) Baltimore Trac. Co. v. Wallace, 77 Md. 435, 26 Atl. Rep. 518; Higgins v. Wilmington St. R. Co., 1 Mary. (DeL.) 352, 41 Atl. Rep. 86; Will v. West Side R. Co., 84 Wis. 42, 54 N. W. Rep. 30: Huerzeler v. Central Crosstown R. Co., 1 Misc. (N. Y.) 136, 48 N. Y. St. 649; Czezewzka v. Benton-Bellefontaine R. Co., 121 Mo. 201, 25 S. W. Rep. 911; Fenton v. Second Ave. R. Co., 56 Hun (N. Y.), 99, 29 N. Y. St. 962; Zurfluth People's R. Co., 46 Mo. App. 636; Citizens' St. R. Co. v. Stein, 42 Ark. 321; Galveston City R. Co. v. Hewitt, 67 Texas 473, 3 S. W. Rep. 705, 60 Am. R. 32; Central Pass. R. Co. v. Chatterson (Ky.), 14 Ky. L. 663; Owensboro City R. Co. v. Hill, 21 Ky. L. 1638, 56 S. W. Rep. 21; Oliver v. Denver Tramway Co., 13 Col. App. 543, 59 Pac. Rep. 79.

V.

(18) Siek v. Toledo, etc., R. Co., 9 Ohio C. D. 51; Johnson v. Stewart, 62 Ark. 164, 34 S. W. Rep. 889; Houston, etc., R. Co. v. Farrell (Tex. Civ. App.), 27 S. W. Rep. 942; Redfern v. Spokane St. R. Co., 9 Wash. 55, 36 Pac. Rep. 1085; Schoenholtz v. Third Ave. R. Co., 37 N. Y. S. 682; Lyman v. Union R. Co., 114 Mass. 87; Johnson v. Superior, etc., R. Co., 91 Wis. 233, 64 N. W. Rep. 753.

(19) Elliott on Railroads, 2nd Ed., sec. 1096 cq.

(20) Indianapolis St. R. Co. v. Schmidt, 35 Ind. App. 202, 209-214; Indianapolis Trac. & Term. Co. v. Kidd (Ind.), 79 N. E. Rep. 347, 350.

USURY-RECOVERY OF USURIOUS INTEREST.

CULVER v. OSBORNE.

Supreme Court of Illinois, Dec. 17, 1907.

Where a note containing usurious interest was assigned by the payee before maturity to an innocent purchaser and the maker was comthe pelled to pay the note to the assignee, maker might in equity recover the usurious interest from the original payee,

On September 19, 1900, John H. Culver, de fendant in error, filed his bill in the circuit court of Macon county against James E. Osborne, plaintiff in error, to obtain a decree for the amount paid by Culver to satisfy a judgment recovered against him in the cir cuit court of said county by Martin L. Osborne on a note alleged to have been given by Culver to James E. Osborne for usurious interest accumulations, and by James E. assigned to Martin L. for value before maturity. The bill alleges, in substance, that on January 13, 1892, complainant borrowed from defendant the sum of $300, giving him a note in exchange therefor, due seven days after date, for the sum of $304.50, with interest thereon at 7 per cent; that various payments were made on said loan from time to time, and the loan was frequently renewed by the surrender of the existing note and the giv ing of another in lieu thereof for the amount unpaid, including usurious interest, until May 23, 1896, when complainant gave to defendant a note for $882, due one year after date, with interest thereon at 7 per cent per annum; that said note last mentioned was assigned, without recourse, by defendant to Martin L. Osborne on July 15, 1896, and that he thereby became a purchaser for value, without notice, before maturity, and that, by reason of such transfer, complainant was deprived of his defense of usury, and has been compelled to pay to said Martin L. Osborne the sum of $1,173.14, the full face value of said note, including the costs of suit; that the entire amount so paid to Martin L. Osborne was, as between complainant and defendant, usury, and the bill prays that the defendant be required to pay that amount to complainant. To the bill defendant filed an answer, denying the allegations thereof. A replication was filed and the cause referred to James J. Finn, master in chancery, to take the proof and report his findings. The testimony was taken by him, but. before making his report, his term of office expired, and he then reported the evidence to the court without his conclusions or findings.

The cause was then referred to W. H. Black, successor to the former master, who made a report finding that the original loan of $300, together with interest at the rate fixed by statute, had been paid in full by the complainant, and that the last payment on said loan had been made by the complainant to defendant on or about May 24, 1895; that on May 23, 1896, complainant gave to defendant a note for $882, due one year after date, with interest at 7 per cent per annum from date, signed by complainant and payable to defendant; that this note included accumulations of usurious interest only, and was assigned before maturity by defendant to Martin L. Osborne, his brother, who became a bona fide purchaser for value, without notice of any defense; that said Martin L. Osborne brought suit on said note, and obtained a judgment against complainant for the sum of $1,141.11 2nd costs, amounting in all to $1,173.14, which has been paid by the complainant; that the equities are with complainant, and that he is entitled to recover from defendant the sum of $1,173.14. Complainant offered evidence which tended to show that the original amount of the loan was $300, and that by the contract between himself and defendant he was to pay $1.50 per week as interest on each $100 loaned, and that the $4.50 included in the first note was for the first week's interest; that the indebtedness along, new notes being given, including accrued usurious interest, and payments made from time to time, until more money had been paid than would satisfy the original loan with interest at the statutory rate, and that the new note assigned to Martin L. was less in amount than the total of the usurious interest with which complainant had been charged up to that time. Defendant offered testimony, tending to prove that the note assigned to his brother was for money loaned and interest at 7 per cent per annum, and that it contained no usury. The objections to the master's report, after being overruled, were refiled as exceptions in the circuit court. Upon a hearing, the exceptions were overruled and a decree was entered by the court in accordance with the recommendations of the master. From that decree plaintiff in error prayed an appeal to the Appellate Court for the Third District. The decree of the circuit court was there affirmed, and James E. brings the record to this court by a writ of error.

ran

SCOTT, J. (after stating the facts as above): The master found that there was usury in the contract, and that the principal of the promissory note, assigned by plaintiff in error to his brother, was not greater than the usurious accumulations of the interest with which

defendant in error had been charged up to the time that note was given. It is here insisted that this finding is clearly against the evidence. We have examined the proof taken as the same is set out in the abstract, and are entirely satisfied with the finding of the master upon this question.

It is next contended that, where usurious interest has been paid, it cannot be recovered. This is not the rule where, as in this case, the promissory note containing the usury has been assigned, before maturity, to an innocent purchaser and the defense of usury thereby cut off, and where the maker has been compelled to pay the note to the assignee.

In Woodworth v. Huntoon, 40 Ill. 131, 89 Am. Dec. 340, it was held that, where a promissory note is given upon usurious consideration and passes into the hands of a bona fide purchaser without notice of the defense and is by him collected, the payment by the maker to the assignee will be regarded as compulsory, and not voluntary, and equity will require the original payee to pay to the maker the usurious interest included in the note. In the case of House v. Davis, 60 Ill. 367, promissory notes containing usury had been assigned before maturity and by the assignee reduced to judgment against the maker, who then filed a bill against the original payee and the assignee, charging that the assignee had notice of the usury at the time the notes were transferred to him, and seeking an injunction to prevent the collection of the usury. In the circuit court it was held that the proof did not sustain the charge that the assignee had notice of the usury when he acquired the notes, and for that reason the bill was dismissed as to him, and thereafter that court rendered a decree requiring that the original payee of the notes bring into court the amount of the usury and that the maker of the notes bring into court the balance of the judgment, by a day named, for the purpose of satisfying the debt to the assignee. The original payee appealed to this court, where the decree of the lower court was reversed for the reason that the case made by the evidence was not that stated by the bli and for the further reason that the court required the payment of money for the satisfaction of the judgment of the assignee after the latter had been dismissed, adu when no control could be exercised over him by the court. It was said, however, that the bill should be amended to correspond with the facts when the maker of the notes should be permitted to bring the amount of the judgment, and interest thereon, into court for the benefit of the asignee, and then he (the maker) would be entitled to recover the usury from the payee. It follows that the judgment of the Appel

late Court is correct, and it will accordingly be affirmed.

Judgment affirmed.

Note. The Recovery of Money Paid Under a Usurious Contract.--Usury has been recognized and denounced as an evil from the earliest times. The practice of exacting usury was condemned by Moses in the books of Exodus and Leviticus, and in the New Testament the usurer is placed in the same category as the drunkard, the murderer and the harlot. Doubtless civilizations older than the Jewish civilization also abhorred the usurer, and in modern literature Shakespeare holds him up to the execration of mankind. Statutes have been enacted from time to time for the purpose of blotting out this pest, but only moderate success has attended the efforts to prohibit the practice and the usurer is with us even to this day. Kent says, in Dunham v. Gould, 16 Johns. 367: "If we look back upon history we shall find that there is scarcely any people, ancient or modern, that have not had usury laws. I believe there is not a nation in Europe at this day without them. In ancient Rome, according to Tacitus, Ann. Lib. 6 Ch. 16, usury was discouraged in the early period of the republic by the twelve tables, which reduced interest to one per cent. It was afterwards lowered to one-half per cent, and finally abolished by the clamors of the people. It was resumed during the ages of commerce and luxury, but placed under necessary restrictions.

But it is not only the civilized and commercial nations of modern Europe, and the sage lawgivers of ancient Rome, that have regulated the interest of money. It will be deemed a little singular that the same voice against usury should have been raised in the laws of China, the Hindu institutes of Menu, in the Xof Mahomet, and, perhaps we may say, in the laws of all nations that we know of, whether Greek or barbarian." The devices for the evasion of the statutes have been innumerable. It is now well settled under the statutes that usury as a defense will avoid liability for the extra-legal interest. In some states the exacting of usury is denounced as a crime; and, quite generally, a mortgage or pledge given to secure payment of usury is void, or at least voidable.

The principal case deals with a question upon which there is some confusion among the authorities, viz: In some jurisdictions it is held that since usury cannot be collected by law, where pleaded and proven in defense, that if it is paid, the payment is voluntary, and that a voluntary payment cannot be recovered back. It has been so held in Illinois (Manny v. Stockton, 34 Ill. 306), Iowa (Smith v. Coopers, Iowa 376), Louisiana (16 La. Ann. 217), and Ohio (Shelton v. Gill, 11 Ohio, 417). In the last case the court said: "The interest, excessive as it was, was paid; and whether we place the case upon the ground of an executed contract, or as one which is against sound morals, or malum prohibitum, and the parties therefore in pari delicto, we know of no principle by which it can be recovered back." These decisions, however, frequently turn on the interpretation of the local statute, and in many instances the statutes have been so amended as to provide for the recovery of usury even after payment. The better opinion would seem to support the proposition that the amount paid in excess of legal interest may be recovered. Indeed, if it be

64

*

true that the law undertakes to protect the borrower from the rapacity and greed of the lender, and that the borrower is under a sort of duress by reason of his necessities, then it would seem that the protection should be complete. If the borrower, by reason of his necessities, is under restraint at the time of making the contract, he is probably under the same degree of restraint, up to the time the obligation is cancelled and he receives back his securities. In Webb on Usury, Sec. 463, the author uses the following language: the theory of the rule at common law, which has frequently received judicial support in the United States, was that the contract under which the usury was paid, being illegal, was void; and, therefore, every act done in its performance was a nullity. It will be observed that the authorities upon the right to recover paid usury are very conflicting in the United States. The probable solution of this condition is that in several of the states the usury the statute renders usurious contract voidable only. Therefore, acts done in the performance of a contract governed by such a statute may have validity and both parties approach near to an equality of delictum when the statute is violated." In 29 Am. & Eng. Enc. of Law, 543, the doctrine is stated as follows: "In England it was held at an early date that a borrower voluntarily paying usurious interest could not maintain an action to recover it back, though in later cases this decision has been frequently disapproved by the courts. In the United States on the theory that payments of usurious interest are made under compulsion and not voluntarily, and that the borrower and the lender are not in pari delicto, it is held in many jurisdictions that a borrower may recover back usurious interest.

The principal case brings out another phase of the question. The lender of the money had sold the note before maturity to an innocent purchaser for value. The purchaser brought suit, and as the defense of usury could not be raised against him, he recovered judgment against the debtor. As a general proposition, supported by the weight of authority, where the lender reduces his claim to a judgment which becomes final, the borrower cannot recover the usury paid. The judgment is conclusive against him. But where, as in the principal case, the lender has placed the note into the hands of an innocent purchaser for value, thereby cutting off the defense of usury, equity will come to the relief of the borrower, who may recover the usury of the lender in a proper proceeding in many jurisdictions.

JETSAM AND FLOTSAM.

GEMS FROM JUDGE ALDRICH'S CHARGE TO THE GRAND JURY.

Judge Robert Aldrich, of Barnwell, South Carolina, was recently elected to the circuit bench. His first charge to the grand jury at Conway was a masterpiece of judicial eloquence much commented upon in South Carolina. It is worthy of a much wider circulation. Judge Aldrich said in part:

What is law? It has been defined to be a rule of conduct prescribed by the supreme power in the state, commanding that which is right and prohibiting that which is wrong, or, in other words, law is right living and people who

do not live rightly can't prosper. It has become more or less common to hold up our people as a lawless people who either commit crime themselves or condone it in others. This is not true; as a state we are a law respecting and law-abiding community. If that were not so we would not feel law-breaking as we have always done, the fact that the commission of crime is so sternly denounced shows that the body of our population are law-abiding and law-respecting, but in some quarters it must be admitted that there is a lawless element among us who give a bad name to the whole stato. And in what I shall say on this head I have no reference to any particular community, but somewhere among us there is an element of our society which does not respect the law, and it is that class that courts are organized to control. In some instances, in some sections, this has not been done and flagrant crimes have gone unwhipped of justice. This is all wrong and we cannot afford to permit it to continue.

Can it be prevented? Can all men in our state be made to know that no man is above the law, that no man can violate the law with impunity? Certainly it can be done; to say that it cannot be done is to admit that our government by the people is a failure. In monarchical countries if the king neglects his duty bad government follows, in a free republic like ours, where the people are the sovereigns, if the people neglect their duties bad government will follow, so that the way to suppress crime in our state is for the good people to say that it must stop, and when they say so mean it. The means by which the people carry on their government is through their agents and servants, and if these agents of the people, the office-holders, are given to understand that the people will hold them to a strict accountability and at the recurring elections will retain those who are faithful and turn out those who are not, then you will soon see an efficient enforcement of the laws, but if good men are neglectful of their privileges rest assured bad men will not be; then bad men will give their tone and character to the government, the servant will not rise higher than his master and law and order will give place to wickedness and vice.

The pivot upon which the whole fabric of justice revolves is the jury which tries the cases. The magistrates and constables may do their duty, the solicitor may do his, the grand jury may do their duty and the judge may do his, and yet all come to naught and crime run riot in the land if the jury fails to do its duty. No greater reproach can come upon any state than a failure to protect the lives and the rights of its people. Our people have always stood ready to fight, and if need be to die in defense of their state and country; in times of political revolutions they have displayed the highest devotion. We make the proud boast that in defense of South Carolina we stand ready with our lives and our fortunes, and yet all of these things are as soun ing sad tinkling cymbals if we fail to uphold the law, if we fail to make the people secure in their lives, their liberty and their property. The law is no respecter of persons, the law has one measure for all, and the time has come when we should alter the old political slogan and proclaim from the mountains to the sea that this is a good man's country, where every good man white and black alike, can find a home, in fact as well as in name; where every good man can live and work and enjoy the fruits of his labor

in tranquility and peace, and where every bad man must mend his ways or go elsewhere to pursue them.

When I say that the spirit of the law should be observed, and only men of sound judgment and free from all legal exceptions shall serve on juries, I must not be understood as intimating that such men can be found only in any particular class of life. I know that they are to be found in all classes. I have lived very near to the plain people of our state. I have stood by them and they have stood by me in war; I have worked with them in the most trying periods of our history, and the most splendid specimens of manly worth I have ever known have come from the cottages of the poor, while some of the most abandoned scapegraces that ever existed have come out of the mansions of the rich. "Honor and fame from no condition rise," and we can find, if we look for them, good men and true in every class of life who will "act well their part," there all the honor lies.

CORRESPONDENCE.

IS OURS A "NATIONAL" GOVERNMENT. Editor Central Law Journal:

Homer sometimes nods, say the critics, and it appears to the writer that the Supreme Court of the United States, speaking through Mr. Justice Brewer, in Kansas v. Colorado, 206 U. S. 46, followed that illustrious precedent, and fell into a strange inadvertence.

"It is well, therefore," says Mr. Justice Brewer, "to consider the foundations of our jurisdiction over controversies between states. It is no longer open to question that by the constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of states. Whatever powers of government were granted to the nation or reserved to the states (and for the description and limitation of those powers we must always accept the constitution as alone and absolutely controlling) there was created a nation, to be known as the United States of America, and as such then assumed its place among the nations of the world."

In support of that proposition the learned justice appeals to the precise language of the first resolution adopted by the convention, and says, "the first resolution passed by the convention that framed the constitution, sitting as a committee of the whole, was 'Resolved. That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive.' 1 Elliott Debates. p. 151."

It is submitted with all respect and deference, that however sound and justifiable may be the opinion of that exalted tribunal that the convention planned or established a nation or a national government, such may not be proven by an appeal to "the first resolution." The resolution quoted was undoubtedly adopted, but, upon the authority of Mr. Madison, it was just as undoubtedly amended three weeks later so as to cut out the words, "a national government ought to be established," and to substitute therefor the words "that the government of the United States ought to consist," which, oddly enough, seems to have been overlooked by Mr. Justice Brewer.

The "first resolution" was adopted on the fifth day, May 30, 1787, by the votes of six