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upon the government perpetrated by Capt. As to the guilt or innocence of the accused men Carter. To a reporter of the New York I have not expressed an opinion. I do not know.

Not a scrap of positive proof was offered to me to Evening Post, Judge Brown stated the rea

show that the indictment contained probable cause sons for his decision, which was based solely for action; and under the law as it now stands I upon a question of procedure substantially could do nothing but refuse to issue a warrant of as follows:

removal. The prosecution argued, in this case, that the accused could be removed to Georgia on the

Notes of Cases. single fact that an indictment had been found against them in that State. Relying upon this Infants – Torts. — In Slayton v. Barry, decided view, they persistently refused to produce a single by the Supreme Judicial Court of Massachusetts fact that you could put your finger on as evidence in March, 1900, it was held that where an infant, that the indictment was good. Fraud was charged, by falsely representing himself to be of full age, but not one specific fact was set forth to show in induces another to sell him goods, the seller canwhat the fraud consisted. For two months the not maintain trover against him for the goods. hearing before the commissioner went on, and The following is the opinion: every bit of evidence offered by the defense was The declaration in this case is in two counts. excluded, and the prosecution offered none, it be- | The second count is in trover for the goods deing their avowed purpose to stand alone on the scribed in the first count. The first count alleges, indictment and produce all their proofs when the in substance, that the defendant, intending to decase came up in Georgia.

fraud the plaintiff, deceitfully and fraudulently If the parties had taken the trouble to come to represented to him that he was of full age, and the judge's chambers and ask how he would rule thereby induced the plaintiff to sell and deliver to on that procedure, they could have saved a great him the goods described, and, though often redeal of time. Five years ago this identical point quested, had refused to pay for or return the was decided, in the case of the People v. Dana, | goods, but had delivered them to persons unand counsel knew of that decision. The present known to the plaintiff. The case is here on exopinion is nothing more than a supplement to the ceptions to the refusal of the presiding judge to opinion in the Dana case. The decision, as to give certain instructions requested by the plainthe construction of the Federal statute for re- tiff, and to his ruling ordering a verdict for the moval, is supported by Mr. Justice Curtis and Mr. defendant. The question is whether the plaintiff Justice Miller in the Supreme Court. Lawyers can maintain his action. He could not bring an will recognize the weight of decisions coming from action of contract, and so has brought an action these jurists. Judge Lowell, of Massachusetts, in of tort. The precise question presented has never 1871, decided in the same way. The case decided been passed upon by this court (Merriam v. Cunby Judge Butler, and affirmed in the United States ningham, 11 Cush. 40, 43). In other jurisdictions Court of Appeals, is also in point.

it has been decided differently by different courts. As long as the United States statutes stand as We think that the weight of authority is against they are, this question cannot be decided in any the right to maintain the action (Johnson v. Pie, other way. The law does not permit a man to be i Lev. 169, 1 Sid. 258, 1 Keb. 905; Grove v. Nevill, haled from one end of the country to another i Keb. 778; Jennings v. Rundall, 8 Term R. 335; upon an unsupported indictment, which itself has Green v. Greenbank, 2 Marsh. 485; Price v. Hewno statement of fact indicating probable guilt; and ett, 8 Exch. 146; Wright v. Leonard, ii C. B. an amendment permitting such procedure would [N. S.) 258; DeRoo v. Foster, 12 C. B. [N. S.] be of doubtful expediency. An amendment would | 272; Gilson v. Spear, 38 Vt. 310; Nash v. Jewett, certainly be necessary to effect it. The indictment | 61 Vt. 501, 18 Atl. 47, 4. L. R. A. 561; Ferguson v. shows that the defendants are triable on the prin- Bobo, 54 Miss. 121; Brown v. Dunham, i Root, cipal charges in New York as much as in Georgia. 272; Geer v. Hovey, Id. 179; Wilt v. Welsh, 6

The government is just as free as at the begin- Watts, 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jorning to go forward and produce proof of facts dan, 17 Tex. 341; Benj. Sales [6th ed.), 23; Cooley, showing probable guilt. The suggestion to dis- | Torts (2d ed.), 126; 2 Add. Torts, sec. 1314. See miss the present proceeding was in order to give contra, Fitts v. Hall, 9 N. H. 441; Eaton v. Hill, the government a free hand to cure some of the 50 N. H. 235; Hall v. Butterfield, 59 N. H. 354; defects of the present indictment, if it chose, be- Rice v. Boyer, 108 Ind. 472, 9 N. E. 420; Wallace fore going on with its proofs. At its option it v. Morss, 5 Hill 391). can continue under the present indictment.

The general rule is, of course, that infants are No order for the discharge of the accused has liable for their torts (Sykes v. Johnson, 16 Mass. been given. The decision does not mean at all 389; Homer v. Thwing, 3 Pick. 492; Shaw v. Cofthat they are necess essarily to go free.

fin, 58 Me. 254; Vasse v. Smith, 6 Cranch, 226, 3


L. Ed. 207). But the rule is not an unlimited one. to fit the new problem, gradually the unfit are It is to be applied with due regard to the other dropped and the fit remain. Each new application equally well-settled rule, that, with certain excep- of a principle is a logical extension of that which tions, they are not liable on their contracts; and was involved in its original enunciation, — the the dominant consideration is not that of liability principle gradually unfolds itself, but it is never for their torts, but of protection from their con- absolute never at rest; it is a growing truth. tracts. The true rule seems to us to be as stated Because the conditions which call for the appliin Association v. Fairhurst (9 Exch. 422, 429), cation of the principles are never precisely the where it was sought to hold a married woman for same, variations in the presentment of a principle a fraudulent misrepresentation, namely: If the occur each time it is applied, and every time the fraud “is directly connected with the contract, principle is stated some slight change is made in

and is the means of effecting it, and par- | it. These variations may be more or less radical, cel of the same transaction,” then the infant will but great or small, a choice must be made among not be liable in tort. The rule is stated in 2 Kent, ! them whenever a court seeks to do justice in a Comm. (8th ed.), section 241, as follows: * The i given state of facts. In this way those principles fraudulent act, to charge him (the infant), must be fittest to do justice in the great majority of cases wholly tortious; and a matter arising ex contractu, survive, and the others die. The object of this though injected with fraud, cannot be changed paper is to follow the history of one of these variainto a tort in order to charge the infant in trover tions a very radical variation as shown in the or case by a change in the form of the action." records of one State, and to see what light it In the present case it seems to us that the fraud throws on the selective process. on which the plaintiff relies was part and parcel of

The variation may be a departure from the the contract and directly connected with it. The

strict logical consequences of a principle, or it may plaintiff cannot maintain his action without show

be a logical extension of it. It is only the former ing that there was a contract which he was induced

that produces a marked change. In this case one to enter into by the defendant's fraudulent repre

of three results will follow. Either the variation sentations in regard to his capacity to contract,

dies altogether, or it so far modifies the principle and that, pursuant to that contract, there was a sale and delivery of the goods in question. branch off and establish a new principle in sharn

that the latter gradually decays and dies, or it may Whether, as an original proposition, it would be

contrast to the older, meeting conditions that the better if the rule were as laid down in Fitts v. Hall

old failed to touch, in which case both it and the (supra) and Hall v. Butterfield (supra), in New

old principle will subsist in very much modified Hampshire, and Rice v. Boyer (supra) in Indiana,

forms. we need not consider. The plaintiff relies on

The origin of such a variation may be in several Homer v. Thwing (supra), Badger v. Phinney (15 Mass. 359) and Walker v. Davis (1 Gray, 506). In

ways, but the most common are doubtless these Walker v. Davis (supra) there was no completed

two: Either the court is struck by the hardship of contract, and the title did not pass. The sale of deciding strictly according to principle because of the cow by the defendant operated, therefore,

some peculiar appeal to its sympathies, and bends

the rule to fit a rough sense of fairness; or some clearly as conversion. Badger v. Phinney

fancied analogy, some kink in the reasoning of the (supra) was an action of replevin and it was held that the property had not passed, or if it had, that judge, makes a literal faux pas in his ratiocination it has revested in the plaintiff in consequence of

and an anomaly arises. the defendant's fraud. The plaintiff maintained

These two methods may be combined: either his action independently of the contract. In may be sufficient in itself, however. And I do not Homer v. Thwing (supra) the tort was only inci

mean that the first way is necessarily a conscious dentally connected with the contract of hiring.

process; it is far more likely to be wholly unconscious, just as we find our consciences with a

thousand reasons for doing something the real THE FATE OF LAWRENCE V. FOX IN reason for which lurks in the very background of NEW YORK.

consciousness, unacknowledged and ignored.

After the departure is once made an extreme THE growth of the law is very like the evolu

case is apt to arise, and a plaintiff or defendant

demands its protection. A limitation is at once struggle for the survival of principles fittest to be out on its application because of the evil feared applied to social conditions which are ever vary- from an overturning of well-established law, which ing in themselves. The process is one of keen would surely follow if it were carried to its strict competition -- the social conditions and the prin- ! logical conclusions. It thus tends to produce inciples applied to them are presented in the form of finite confusion, but from such confusion greater cases - new conditions present themselves, the clearness and accuracy are bound to result. For old decisions hold out their principles competing a long time, however, the issue is doubtful. Ex



ceptions and limitations without number are made. legal right. Why, then, was this plaintiff allowed Ti the original departure has no elements in it which to recover on a promise which was not even made meet needs of the social conditions, the effects of to him, and for which he could show no considerit are annulled little by little by this mass of ex- ation? Doubtless his position of unpaid creditor ceptions, until it becomes a dead letter a sort appealed to the sympathy of the court - it looked of vermiiorm appendix waiting to catch an unwary so very easy to give him this money which his court, perhaps, and do some niischief, until at creditor intended ior him, and thus save his debt length a merciful legislature cuts it off, or it dies tu him. Then, too, there were dicta in cases deof mortification " of its own free will and a cord.'. cided before, and an English case which seemed

li the departure is from a rule of expeuiency or directly in point. In addition to this, two of the the logical consequences of such a rule, and not judges, Johnson and Denio, saw a resemblance to irum fundamental principles involved in the very a case in agency where a principal ratifies the un. constitution of society, the chances are that it will authorized acts of his agent. Gray, who gave the have some elements calculated to meet social majority opinion, compared the case to a trust, needs; a real distinction will be made, and in time and plaintitt to a cestui coming into equity to ena reform in an old rule will follow, much to the force it. Then there was probably another circumbenefit oi the litigious ortion of the community. stanice which had some influence, and that was the The case I have chosen for study is not yet

short time the defendant was to hold the money. determined, but has progressed far enough to show The court evidently thought that this could be of in an interesting way the process, and to suggest but little benefit to defendant, and so felt that the the end.

real intention of the parties was to benefit the Among the numerous anomalies which abound plaintiff. I shall have to refer to this again, so in a profusion so encouraging to its legal proses merely suggest it now. sion in the decisions of New York, none is more The strange part of it is that these considerations remarkable, perhaps, than that of Lawrence v. should have prevailed in the face of Comstock's Fox. The decision itself is remarkable, and the vigorous dissenting opinion. In the first place, he treatment of it by the courts in the forty years showed that the early cases relied on merely since its publication is perhaps still more so. The stated the rule as a dictum, and without exception decision is remarkable because it was a fagrant went off on other grounds. These dicta all took departure from principle, which was clearly pointed their origin in an English case, which was distinout at the time by a very able judge in a powerful guishable, and had been decided two hundred year dissenting opinion. How the treatment of it was before. The English case (Dutton v. Poole, Vent, remarkable will appear later.

318) was one where a child was allowed to sue on The case was as follows: One Holly, at the re- a promise made to her father for her benefit. The quest of the defendant, lent him a sum of money element appealing to the sympathy of the court is for one day, stating that he (Holly) owed it to the plain here, and is expressed by that magic word plaintiff. The defendant thereupon agreed to pay privity of blood. Further, at that time considerait to the plaintiff. The plaintiff now sues on this tion was but little understood. The court in the promise of the defendant to Holly, and is allowed case distinguished it from one involving a stranger to recover. The case then is nothing more than third party. It was clearly anomalous. this: A creditor authorizes his debtor to discharge The early New York and Massachusetts cases the debt in a particular way, namely, by paying it relied on' were cases where the promises were in to a third person. The motive for this authority fact made to the plaintiffs, although they involved was the lact that the third person was a creditor of the payment of a third party's obligation, and the the man giving the authority, and the latter wished question was whether the statute of frauds applied to discharge his debt. There was no novation, to them as promises to answer the debt of anfor the third party was in no way connected with other. the contract. The third party gave no considera- Comstock also indicated the answer to the argu. tion of any sort to either contractor, and yet he ment drawn from the theory of a trust or an was allowed to recover as if he had been a party agency. In the first place, the promisee never into the contract. It is quite clear that this was a tended to create a trust, and the terms of the conglaring departure from the law of contracts, as it tract negatived the trust idea; the defendant was had been ever since the contract came into the merely authorized to discharge his obligation to law under the guise of a tort. The courts haa plaintiff in a particular way, and Holly could agree repeatedly laid it down as law that no promise was with defendant to alter this arrangement by allowenforceable unless the person suing on it showed ing the money to be paid to himself or another some consideration. By consideration was mean creditor, or he could release the defendant. In a detriment, - a parting with a legal right. And regard to the question of agency, it is clear that this was essential because the theory was that the the third party never assumed to act as the agent promise was reparation - at first for a tort, the of the plaintiff, but the defendant did assume to violation of a legal right; next for the loss of a act as Holly's agent. Holly was the promisee, and


the party entitled to the benefit of the promise, part and a promise made to him, if at the time the though it might incidentally also benefit the plain- contract was entered into he was not in such relatitf. Comstock's opinion, however, did not prevail. tion to the promisee that the carrying out of the

If the case had been strictly followed to its log- promise would discharge an obligation between ical conclusions the following results would have them. Or, to put it differently, a third person can been reached:

sue on a contract to which he is not a party when 1. A promise may be sued on though no con- the promise is to discharge an obligation existing sideration was given for it.

at the time between himself and the promisee. 2. A promise may be sued on though not made The question that at once suggests itself is: Since to the person seeking to enforce it, if some benefit the weakness of this third party's position is a would accrue to him from it.

lack of consideration, why should an exception be 3. A promise made to one might give rise to made in favor of the man whose obligation arose several actions, being enforced by several.

before the promise, when as a matter of principle 4. A release by the promisee would only end the he stands in exactly the same position as if it had obligation to himself, and the promisor might still been created afterwards? But the court looked be liable on the promise.

askance at Lawrence v. Fox (referring to it as the 5. An agreement by the promisor and promisee ultima Thule "), and decided the case beiore it to change the method of discharging the obliga- on the old principles. Thus a difference in fac. tion might compel the promisor to discharge the gave rise to a distinct limitation on the new docsame in several ways to several parties.

trine. 6. A man might make another his agent by In one or two other cases about the same time ratifying a transaction between that other and a

Lawrence v. Fox was accepted as law and folthird party where the other never assumed to be lowed. In 1861, in Burr v. Beers (24 N. Y. 171), his agent.

where a mortgagee was allowed to sue a grantee 7. There could be a trust without a specific res of the mortgaged property on the promise of the as subject-matter, since in this case the defendant latter to the mortgagor that he would assume the was to have the use of the money.

mortgage. This case was clearly on all fours with The last two considerations are not strictly es- Lawrence v. Fox, and was followed in 1806 in sential to the case, as the courts did not rely on Thorp v. Keokuk Coal Co. (47 Barb. 439). them, but each of these is involved, and is ac In 1861 also the case of Leaman v. Hasbrouck cepted it is clear a vast body of well-established (35 Barb. 151) was decided. There creditors of a law would be overthrown. The courts then imme- grantor of land were allowed to enforce a parol diately begin the process of limiting the effect of agreement against the grantee to pay their debts, the decision. In the forty-one years since 1859, though they were not parties to the agreement, and when the case was decided, it has been cited nearly the consideration for it was the grant of the land. three hundred times in the New York courts of The court here invoked the trust doctrine, and record. Nearly every one of the points above said the money was to be regarded as a fund, made have come up in questions more or less wholly ignoring the fact that no money had been clear, and have been passed on. About one-third set aside.

They also used the agency argument, of these cases came up before 1882, but it is since so that this case accepted two of the anomalies then that the greater number of distinctions have enumerated above. But this case was also within been made.

the distinction made in Hoffman v. Schwaebe, and It was only a few months after the decision that was so closely analogous to Lawrence v. Fox that the court had occasion to make the first distinction. we could only expect the court to decide as it did. This was in 1860, in the case of Hoffman v. The distinction in facts between the two is that Schwaebe (33 Barb. 195). In that case one Smith Lawrence v. Fox was a case where the contract assigned to a man named Miller a contract for the dealt with money, whereas this contract was a sale of land for which Miller gave Smith two transfer of lands, so that there was less excuse in promissory notes. The plaintiff was a surety on this case for speaking of a fund set aside for credthese notes. Miller reassigned the contract to itors. defendant, who agreed to pay the notes. Plaintiff In 1862 it was followed in Adams v. Wadhams had to pay as surety, and sought to hold the de- | (40 Barb. 225), where the third person was heir to fendant on his promise to Miller. The court de- the promisee. Here was something of the privity nied him this relief, and distinguished the case of blood found in Dutton v. Poole, the early Engfrom Lawrence v. Fox on the ground that when lish case, but it is a fact worth noting that only a the defendant made his promise to Miller the latter few months before the English court had decided owed nothing to the plaintiff. This decision, there-Tweddle v. Atkinson (1 Best & Sm. 393), practifore, limited the first two of our logical deduc-cally overthrowing Dutton v. Poole, and holding tions above, and would make them read in that a son could not enforce a contract made by substance as follows: A person cannot sue on a his father for his benefit with a third party. Howcontract without showing a consideration on his ever, the circumstance of kinship was sufficient

appeal to the sympathy of the New York court to The first distinction — that the promisee mus. make them ready to follow Lawrence v. Fox. owe to the third party the very obligation assume..

The doctrine was accepted without modincation towards him by the promisor - was stated in the except for the suggestion of the importance of the following cases, among others: Vrooman v. Turthird party's accepting the agreement, in 1863, in ner, (1877) 09 N. Y. 284; Carrier v. Union Paper Auburn Bank v. Leonard (40 Barb. 119). It was Co., 73 Hun, 287; Cushman v. Henry, 55 How. Pr. not questioned in Butts v. Perkins (41 Barb. 513), 234; Guy v. Landon, 84 Hun, 222; Coleman v. Huber v. Ely (45 Barb. 169) and several other Hiler, 85 Hun, 547 (550); Townsend v. Rackham, cases about this time.

143 N. Y. 516 (522); Durnherr v. Rau, 60 Hun, In Martin v. O'Connor ((1865) 43 Barb. 522), 300; 135 N. Y. 219, 222. In Vrooman v. Turner however, a distinction was made. There a lessor the court said: In every case in which the action of lands was entitled to rents under a covenant has been sustained there has been a debt or duty running with the land. His lessee sublet the owing by the promisee to the party claiming to sue premises, and it was held that though the lessor on the promise." There were some cases which might have sued an assignee for the rent, he could bore this out, but there were exceptions, such as not sue the sub-tenant, the benefit of the contract Secor v. Law ([1867] 4 Ab. Ap. 188), where debeing for the lessce. This case limits the second fendant assumed a debt due plaintiff on the part oi of our consequences in this way: The benefit to himself and several associates to whom he made the third party must be mentioned in the contract. the promise; Hogle v. Guardian Life Ins. Co. If the statement had been left there it would have ([1868] 4 Ab. N. S. 346), where, on the authority been consistent with the Lawrence v. Fox and also of Lawrence' v. Fox, a beneficiary under an insurwith the first limitation on the doctrine. But the ance policy was allowed to sue in her own name statement was not so narrow; it was that the ben-(see also Ins. Co. v. Healy, 86 Hun, 530). Then efit of the contract must in terms be for the third there was a distinct exception to the statement in party. Where the promise contemplates a benefit the case of Adams v. Wadhams, above, where to the promisee, though the third party may be privity of blood took the place of privity of conentitled to the performance of that very act, he tract. This statement of Peckham was, however, cannot sue on the promise. The fallacy of this accepted, and in the Union Paper Co. case it was lies in the fact that the court looks on the benefit held that where defendant, under a deed from a of a contract as an enrichment or something of third party, agreed to assume and pay a mortgage that sort, whereas all that the old principle re- held by the plaintiff, the latter would have to show quired is that the promisee should regard the per- that the promisee was liable on it to him before formance of the promise as sufficient benefit to he could recover. This was a distinct limitation him to satisfy him for parting with his legal right. on one of the earliest applications of Lawrence v. He may actually lose money by the performance. Fox, that made in Burr v. Beers (supra). That is nothing. If he has selected that peculiar In Durnherr v. Rau the rule was stated in effect gratification as the equivalent of the consideration thus: For a third party to sue on a promise there he parted with, he is the beneficiary, and the only must be (1) an intent on the part of the promisee real beneficiary, of the contract, whoever else may to secure some benefit to him; (2) some privity be incidentally gratified, enriched or benefited. between the promisee and the third party; some

This distinction, however, is triumphantly hailed legal or equitable claim by the latter on the former by the Federal courts (Nat'l Bk. v. Grand Lodge, to the performance of the promise, or its equiva98 U. S. 123), and they allow a third party to a

lent. So in this case, although the plaintiff was contract to recover on it only when the promise wife of the promisee, she was not allowed to encontemplates in terms a benefit to him. This is force the contract, as he was not legally or equidirectly contra to the first distinction made by the tably bound to give her the benefit of it. She was New York court, which limits Lawrence v. Fox to suing for dower on a promise by a grantee of cases where the promisee engages to do towards lands to pay off encumbrances. This promise was the third party what the promisor was bound to held to be strictly intended to benefit the grantor. do towards him, thus releasing the promisor and Now we come to the most important limitation. benefiting him. But the New York court make a one that enables the court in almost every instance felicitous combination of the two. They say the to defeat the application of Lawrence v. Fox and promise to pay the third party is an express benefit return to sound principle. This is the rule that to him. True, it may incidentally benefit the the promise must be for the benefit of the third promisee, but what of that? The contract must party. The rule was stated in 1872 in Garnsey v. directly contemplate this benefiting of the third Rogers (47 N. Y. 233), where it was held that a party, then he can sue on it.

stipulation in a mortgage that the mortgagee should We have now to trace the history of these two pay a prior mortgage was for the benefit of the limitations, leaving to one side the limitations on mortgagor, and could not be enforced by the prior the third, fourth and fifth of our enumerated mortgagee. This was followed at once in several anomalies.

similar cases — in 1877 in Miller v. Winchell (70

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