a common-law duty results from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract.' In the leading case of Boorman v. Brown, 3 Q. B. 511, Tindall, C. J., said: "That there is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or nonperformance is indifferently either assumpsit or case upon tort, is not disputed. Such are actions against attorneys, surgeons, and other professional men. * * * Actions against common carriers, against ship owners on bills of lading, against bailees of different descriptions, and numerous other cases occur in which the actions brought in tort or contract, at the election of the plaintiff. * * * The principle in all these cases would seem to be that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort.'

We also fully agree with Judge Jaggard when he says:

"Nor am I able to agree with the minor premise of the majority opinion that 'plaintiff's complaint charges a breach of contract only,' and that, therefore, the rule of damage applicable to cases of tort may not be invoked. I think that complaint charges a violation of a duty imposed by common-law upon a relation which was entered into by contract and constitutes à cause of action in form ex delicto. So far as the allegations of the particular complaint are concerned, there can be, and, as I understand, there is, no doubt that it contains all necessary allegations to make out a cause of an action ex delicto, if such a thing may be. The present question is not the form of the complaint, but whether plaintiff has a right to sue ex delicto on the facts therein stated. It is elementary that, for breach of any duty imposed by law, the person making the contract with the carrier may sue ex contractu or ex delicto, for the violation of the duty." All this being true, the measure of damages must be viewed from the stand

point of a tort, "which is wholly distinct

from a matter of individual contract."

The third point follows logically upon the previous two and it is not necessary that we say we concur in the following: "I am unable to agree with the conclusion of the majority opinion that damages for mental anguish cannot be recovered in the present action. The gist of the previous discussion is not the academical one, as to the mere form of action, but the practical one, as to the measure of damages. Of course, the mere fact that the present action sounds in tort does not necessarily entitle plaintiff to recover damages for mental anguish. In some actions ex delicto such damages are awarded; in others they are excluded. Their allowance or denial depends upon considerations peculiar to the particular action then under consideration, and not upon any general principle applying indifferently to all or most torts, except the obviously proper general disinclination to allow their assessment. The status of a dead body, it is familiar, is anomalous. It is neither a living passenger nor freight. None the less it is within the protection of the law. The carrier undertaking to ship it owes it a duty for the violation of which its custodian may recover damages in an action in tort. There is no controversy as to these propositions. Whether or not the law recognizes a 'kind of quasi property' in dead bodies we need not stop to inquire. The only question here is whether that violation must be wilful or may be negligent. To my mind it follows, from the previous discussion, from principle, and from authority that a cause of action in tort is here made out, justifying the recovery-of sentimental damages, although the wrong is shown to have been merely negligent." It seems to us that it is clear that the undertaking was of such a character that the failure was of itself one that brought the case into the domain of the wilful tort. The agents were presumed to know that all preparations for the funeral were made when they were and what the consequences would be by a failure to perform the undertaking. The allegations in the petition

do we think it necessary that to recover in such a case it was necessary to have done more than to state such facts as in their nature, when proved, would show a reckless disregard of a duty. Chicago, etc., R. Co. v. Stock Farm, 194 Ill. 9, 62 Cent. L. J. 142. In such an event the majority opinion agrees that damages to outraged feelings might be recovered. In England, in case of negligence of a common carrier, the complainant may frame his case either upon the contract, or upon the tort, and if he puts his claim in on one ground and proves it on the other, he is not embarrassed by any rules of departure for the question to be tried is in either case the same. Kelly v. Metropolitan R. Co., 1 Q. B. D. (1895), 944, 65 Cent. L. J. 365.

NOTES OF IMPORTANT DECISIONS.

INSURANCE-DEPOSIT OF POLICY IN MAIL AS DELIVERY.-In a recent case of Travelers' Fire Insurance Co. v. Globe Soap Co. (Ark.), 107 S. W. Rep. 386, it is held that an insurance policy containing no conditions to the contrary, is delivered within the meaning of the law from the time that it is deposited in the mail addressed to the insured. The fire occurred after the mailing of the policy but before its receipt by the agent of the insuree. The court says in part:

"The policy was in the United States mail en route from Chicago to Cincinnati in an envelope addressed by McRae to Drexel, Brown & Co., when the fire occurred.

The policy reads, in part, as follows: "Travelers' Fire Insurance Company of Pine Bluff, Arkansas, in consideration of the stipulations herein named and of twenty-two and 50-100 dollars premium, does insure the Globe Soap Company for the term of one year from the tenth day of December, 1904, at noon, to the tenth day of December, 1905, at noon, against all direct loss or damage by fire,' etc. The insurance was absolute and unconditional.

There was no evidence that it was to take effect upon any condition.

Drexel, Brown & Co. were the agents of the appellee. Phoenix Insurance Company v. State, 76 Ark. 180, 88 S. W. Rep. 917; 2 Clark & Skyles on the Law of Agency, p. 1720; Ostrander on Fire Insurance (2d Ed.), Sec, 45, p. 165; 1 Joyce on Insurance, Sec. 414. In procuring the insurance they were not limited to any particular company or in any other manner. McRae was authorized to deliver it to the appellee for appellant. He sent it to Drexel, Brown & Co. by depositing it in the United States mail before the fire and the addressee received it on the morning after the fire. The deposit of the policy in the mail was a delivery to Drexel, Brown & Co. (Mutual Reserve Fund Life Association mer, 65 Ark. 581, 47 S. W. Rep. 850); and, they being the agents of the appellee for that purpose, it was thereby delivered to the appellee."

v. Far

This case is unquestionably in line with the best authority. If the offer is made, and the policy is mailed, that is clearly an offer and acceptance. The contract is complete from the moment the risk is accepted. There does not appear to be any good reason why the rule should be different in insurance cases. The rule as to delivery of a policy of insurance is stated in 16 Am. & Eng. Ency. of Law, 855, as follows: "Whether an insurance policy has or has not been delivered after its issuance, so as to complete the contract and give it binding effect, does not depend upon its manual possession by the assured, but rather upon the intention of the parties as manifested by their acts or agreement. As a general rule, whenever one parts with the custody and control of anything with intention at the time that it shall pass into the possession of another, its delivery to such other person has, in contemplation of law, become complete. The manual possession of the thing which it is intended to deliver is a matter of little consequence. Such possession may exist without any legal delivery, and it may not exist where a legal delivery has been effected. The controlling question is not who has the actual possession of the policy, but who has the right of possession."

THE MAXIM THAT THE LAW DOES NOT REQUIRE IMPOSSIBILITIES.

The Most Usual Mode of Expressing the Maxim. It is an ancient and familiar maxim of the law which is embodied in the

Latin phraseology, Lex non cogit ad impossibilia.1

Literally, the maxim would mean that the law does not coerce to impossibilities, or compel impossibilities. Here there are certain words to be understood. It is not the It is not the impossibilities which the law fails to compel, but the doing or performing of impossibilities. As a matter of fact, however, the law not only does not but cannot compel "impossibilities," where they are such in the strict sense of that term. It could order the performance of such impossibilities, but could not enforce its order. The translation of the maxim is therefore more properly put in the form, which is usually adopted, that the law does not require impossibilities.2

"The law never requires impossibilities" is the phraseology used in the statutes of some of the states.3

Various Forms of the Maxim.-Sometimes the words of the maxim are put in a different order, so as to read ad impossibilia lex non cogit.*

(1) This phraseology is used in State v. Van Wye (1896), 36 Mo. 227, 37 S. W. Rep. 938, 58 Am. St. Rep. 627; Mosley v. Ins. Co. (1887), 55 Vt. 142; Bouldin v. Ewart (1876), 63 Mo. 330; Cahoon v. Coe (1876), 57 N. H. 556; Capp v. Henniker (1875), 55 N H. 179; Wells v. Burbank (1845), 17 N. H. 393; Bailey v. Crespigny (1869), Law. R. (Eng.) 4 Q. B. 180, 38 Law J. Q. B. 98, 19 Law Times (N. S.), 681, 17 Weekly Reporter 494

(2) This is the phraseology used in Kentzler v. American Mutual Accident Association (1894), 88 Wis. 589, 60 N. W. Rep. 1002, 43 Am. St. Rep. Ins. Co. 934; Matthews American Central V. (1897), 154 N. Y. 449, 48 N. E. Rep. 751, 61 Am. See also the emSt. Rep. 627, 39 L. R. A. 433. ployment of more or less similar phraseology in Davis v. Grand Rapids Fire Ins. Co. (1895), 35 N. Y. Supp. 792. 15 Misc. Rep. 263 (Buffalo Superior Ct.) affirmed without opinion, in 157 N. Y. 685, 51 N. E. Rep. 1090; People's Fire Ins. Co. v. Pulver (1889), 127 Ill. 246, 20 N. E. Rep. 18; Eggleston v. Council Bluffs Ins. Co. (1884), 65 Iowa 308, 21 N. W. Rep. 652; Brown v. Fraternal Accident Ass'n. (1898), 18 Utah 265, 55 Pac. Rep. 63.

(3) See Cal. Civ. Code, §3531, Dak. Civ. Code §4718, in Comp. Laws, bottom p. 812; 2 Grantham's So. Dak. Code, p. 1479, §5921; Mont. Civ. Code, $4622, in 2 Ann'd Codes, bottom p. 1469.

(4) This is done by way of illustration to refute a suggestion that the cars should turn out for a wagon, in Commonwealth v. Temple (1859), 14 Gray (Mass.), 69; and in explaining in answer to an objection to an English bankrupt law, that if it does not require full pay

The maxim is also sometimes mentioned in a way which while keeping the sense, leaves out the negative word in the Latin."

So the maxim is sometimes made to denote that the law compels "no one" to impossible things, by being put in the form, Lex neminem cogit ad impossibilia.

The familiar maxim on the subject is also put in the form which indicates that the law does not "intend" anything impossible, or in the Latin phraseology, Lex non intendit aliquid impossibile.

What may be regarded as practically a variation of the same maxim is found in the Latin words, Impotentia excusat legem, or literally, Impotence excuses law, which may be freely translated. Want of power is an excuse in law. This form of the maxim is

especially invoked in regard to tenancy by curtesy, where entry by the husband to give seisin is precluded during the life time. of the wife.

Three other modes of expression may also be viewed as variations of the maxim, or at any rate as embodying like ideas. One of these, declaring that An impossibility involves no obligation is in the Latin form, Impossibilium nulla abligatio est. Literally,

ment of the debts as a prerequisite to discharge, this is because such payment may be impossible, in May v. Breed (1851), 7 Cush. (Mass.) 15.

(5) Thus in England, Lord Ashburne has said: "Unless lex cogit ad impossibilia," etc. in Hick v. Raymond (1892), L. R. (1893) App. Cas. 22, 62 L. J. Q. B. 98, 68 Law Times (N. S.) 175, 41 Weekly Rep'r 384, 1 The Rep. 125.

(6) Schroeder v. Hudson River R. R. Co. (1855), 5 Duer. (N. Y.) 55.

(7) This was done in construing a constitutional provision domain regulating eminent which declared that until the compensation shall be paid to the owner, or into court for the owner, "the property shall not be distributed" or the proprietary rights of the owner therein divested. It was considered quite obvious that the words quoted were not to be taken in a literal sense, at least so far as concerns preliminary steps looking to the condemnation of property. In fact, it was pointed out that if such rigidity of meaning be attributed to these words, it would be out of the power of a railroad or municipal corporation to take the necessary initiatory steps to ascertain what land would be required for the purpose in view: St. Louis & San Francisco Ry. Co. v. Evans & Howard Fire Brick Co. (1884), 85 Mo. 307.

(8) Such application of this form of the maxim is made in Jackson v. Sellick (1811), 8 Johns. (N. Y.) 262; Jackson v. Johnson (1825), 5 Cow. (N. Y.) 74.

An Impossible Thing is no tion. Another insists that No one 1S bound to do an impossibility, or, in the Latin form, Nemo tenetur ad impossibile.

The third declares, in antique language, that the law respecteth the possibility of things.10

Sources of the Maxim.-The first appearance of the maxim under consideration in the English reports seems to be in a case decided in 1610 and preserved in Hobart's Reports, which were printed in 1646. The maxim there appears with the omission of the word "ad" (to) before "impossibilia" and in combination with that other form of the maxim "Impotentia excusat legem." The latter form is preceded by the Latin word for "but," ("sed") and so given as a species of equivalent for the maxim in its first form.11

(9) Literally, no one is held to (what is) impossible. See remark of Campbell, C. J., in Regina v. Ambergate, etc. Ry. Co. (1853), 1 El. & Bl. (Eng.) 372, 72 Eng. Com. Law 371.

(10) These expressions, and indeed all the forms of the maxim. are stated and translated by Bouvier in his extensive collection of maxims, arranged alphabetically according to the first word of the Latin or other phraseology used in them. See Bouv. Law Dict. (Rawle's Revision), pp. 361, 356, 360, 365.

(11) Moore v. Hussey, Hob. 93. In this case an action of trespass had been brought for ravishment of a ward, against various parties, including a husband and his wife. The defendants pleaded not guilty. but were all found guilty except the husband and another. The jury awarded damages, and further found that the ward was an infant, and that his marriage was worth eight hundred pounds. The wife being found guilty, the question was whether such a woman covert was liable to pay the value of the marriage and the damages. Against such a conclusion it was urged that the statute inflicts abjuration or imprisonment in case the ravisher cannot satisfy for the marriage and that as the woman is under a necessary liability to satisfy, she was out of the meaning of the statute, and therefore should not be punished with imprisonment or abjuration for not so satisfying. It was accordingly objected "that the woman's disability to pay for the marriage shall excuse her of the imprisonment and exempt her out of the meaning of the law, under that rule, Lex non cogit ad impossibilia, sed impotentia excusat legem." Presenting various considerations against such a view, it was quaintly said by the court: "And the text before cited I allow, but it hath no use for this case, for it is to be understood impotency to excuse the law, where the impotency is a necessary or invincible disability to perform the mandatory part of the law, or to forbear the prohibitory. Now then, who will say that

The source most usually assigned to the maxim in its most familiar form is, however Coke upon Littleton, forming the first part of Coke's Institutes, and of which the fourth edition appeared in 1639. Here the maxim appears in its ordinary phraseology, preceded by the Latin word for "since" ("quia").13

The variation or equivalent of the maxim in the phraseology, Nemo tenetur ad impossibile, appears in a source later than most if not all of these authorities. This is Jenkins' Reports, or Centuries, as he terms them and as they are sometimes cited, because they

the woman is unable to obey the law, she is unable to redeem more than any beggar, and therefore she ought to be more careful not to offend the law. which is in her own power; And therefore, where persons able have a choice, when they offend, to pay or suffer, she knowing she hath no means to pay, did by offending voluntarily (as it seems) yield herself to abjuration or imprisonment." Still, in regard to excuses for not obeying law, it is admitted that various are allowed in the following passage, which is followed by a number of quaint Biblical, classical and other 11-. lustrations: "It is true that all laws admit certain cases of just excuse, when they are offended in letter, and where the offender is under necessity, either of compulsion or inconvenience or else where he is in ignorance invincible; or where the offense is by a mere misfortune, without will or purpose, or where there is a mere impotency to that that it is required." (12) Fishing in the River Thames, 12 Rep. 89a. The maxim was here applied to a statute directed against the use of fishing nets "to stand continually day and night." The question was, whether the use of nets called Trincks "for so long time as the tide did serve" was within the statute. In holding that it was, it was said: "And for this, the word 'continually' shall be taken continually so long as they may stand to take fish, and as the time of fishing endures, be it in the day or night, for lex non intendit aliquid impossibile, for otherwise the law should not be of any effect," etc.

(13) Co. Litt. 231b. This is given as the sense of the maxim in Broom's Legal Maxims (8th Am. Ed.). 242, where the maxim is placed among the fundamental legal principles. Coke uses the maxim in discussing Littleton's remarks about feoffment made by deed poll upon condition, saying: "And if the deed remain in one court it may be pleaded in another court without showing forth; quia lex non cogit ad impossibilia.