livered the cotton receipts to the compress railroad companies upon compress platform, company it was to compress the cotton, ob- which is situated on the track of such railtain the insurance, and give the policies to road companies, it shall be the duty of the the agent of the railway company, and ship railroad companies to take charge of and rethe cotton on the cars pointed out by the ceipt for such cotton in the same manner railway company's agent. There is no evi- and on the same terms as they would redence that the compress company ever com-ceive and receipt for cotton when taken at pressed cotton at the orders of the shipper, its own depot or platform erected for such or charged him for the storage of the cotton transactions; provided, however, that the on the platform. The compressing was in shipper or the compress company shall, in fact done by the compress company for the such cases, assume the additional risk of inrailway company, for its convenience, by surance involved by such act of the railits direction, and at its cost. While the road company." cotton was being compressed the compress The rule of the defendant was also put in company was not under the control of the evidence, and reads as follows: railway company in matters relating to the "Rule Eleven. When cotton is tendered mode and manner of compressing, nor were this company upon a compress platform the employees of the compress company un- which is situated on the track of this comder any control by the railway company, but pany, agent shall take charge of and rethe compress company followed the orders ceipt for such cotton in the same manner of the railway company when to compress and on the same terms as he would receive and where to load the cotton after com- and receipt for the cotton if tendered him pressing.

at this company's depot platform or other This customary way of doing business was places assigned by it for such transactions; followed with regard to the cotton in ques- provided, however, that the shipper or the tion. It was received on the platform of the compress company shall, in such cases, ascompress company from plaintiffs, and re- sume the additional risk of insurance inceipts given for it to them. These receipts volved by such act of this company." were taken on September 17, 1900, to the agent of the railway company, who there- Messrs. William H. Arnold, James K. upon signed and delivered a bill of lading Jones, and James K. Jones, Jr., for plainto plaintiffs, acknowledging the receipt of tiffs in error. the cotton to be transported to Utica, New Messrs. David D. Duncan and John F. York, at named rates. The agent of the Dillon for defendant in error. railway company then took these receipts which plaintiffs had handed to him, and Mr. Justice Peckham, after making the delivered them to the compress company, foregoing statement, delivered the opinion and gave written instructions, signed by of the court: such agent, to the compress company on a The plaintiffs, in order to avoid the obform customarily used, and which ran thus: stacle in the agreement in the third clause “I have this day issued on your compress of the bill of lading, providing that defendreceipts bill of lading to W. A. Arthur & ant was not to be liable for damages to the Company for 50 bales of cotton (marks, cotton by fire, contend, as set up in the number of bales, and total weight given). I complaint, that the clause in the bill of ladDomestic. Compress and ship the above ing was received under duress, and that it cotton,” as stated in directions. The com- was unreasonable and without consideration. press company, when its own receipts were These contentions have been answered and delivered to it by the railway company's overruled, upon much the same evidence, in agent, in accordance with its general cus- the case of Cau v. Texas & P. R. Co. 194 tom, caused this cotton to be insured for U. S. 427, 48 L. ed. 1053, 24 Sup. Ct. Rep. the benefit of the defendant company and 663, and need not be further discussed. in the name of that company, and delivered

With the fire clause in force, it became the policies to the agent of the railway company, who forwarded them to division head- necessary for the plaintiffs, in maintaining quarters at Dallas, Texas.

The compress

their action, to show that defendant had company paid for the insurance under the received the cotton, and that it was de. direction of the railway company.

stroyed through the negligence of the deIt was while the cotton was still on the fendant or its agents, as the exemption platform, and not yet compressed, that it would not apply to a case of damage ocwas burned.

curring through such negligence. Bank of The order adopted by the Texas state Kentucky v. Adams Exp. Co. 93 U. S. 174, railroad commission, which was put in evi-23 L. ed. 872. We are of opinion, after dence, reads as follows:

carefully reading the record, that there was “Thirteenth. When cotton is tendered to l evidence enough to be submitted to the jury

upon the question of negligence in the care sponsibility of due care by leaving the cotof the cotton while on the platform.

ton to be compressed and loaded by the This leaves the questions whether there compress company.

The latter company was a delivery of the cotton to the railway was, while so acting, the agent of the decompany, and whether the compress com- fendant, chosen by it, and, as such, the depany, at the time of the fire, was the agent fendant was responsible for any lack of of the railway company as to that cotton. proper care of the cotton by the compress

Upon the evidence in this case, was there company. Bank of Kentucky v. Adams Exp. a delivery? The evidence showed that the Co. supra. cotton was not delivered on the platform by It is urged that the case cited does not the plaintiffs for the purpose of being com- cover the facts herein, because in the repressed for them by the compress company. ported case the attempt was to secure the The order to compress was subsequently immunity of the defendant express company given by the railway company. That com- from the consequences of the negligence of pany had no other place for the delivery the railroad in doing the very thing that the of the cotton to it than at this platform, express company had agreed to do, viz., but, as there were three companies with transport the money; while in the case betracks at the platform, with either one of fore us the negligence of the compress comwhich the shipper might contract for the pany (assuming there was such) was not transportation of the cotton, it cannot be in transporting the cotton, which the railheld that there was, at the time of the way company had agreed to do, but in cardelivery of the cotton at the platform, a ing for it while awaiting compression. We delivery to the defendant, especially as the see no difference, in fact, which would lead compress company itself acknowledged the to a different result. receipt of the cotton. But when these re- The compression was done for the conceipts were handed by the plaintiffs to the venience of the railroad company, after the defendant's agent, who took them and is company had received the cotton, and besued a bill of lading to the plaintiffs, the fore the actual transportation had comconstructive possession and the entire con- menced. In order to enable it the more control of the cotton passed to the defendant. veniently to do the work of transportation It could then, if so minded, have taken the it cannot devest itself of its obligation to cotton and loaded it on cars and taken it exercise due care while the cotton is in away without having had it compressed. It the control of the compress company, alwas, however, compressed by its own order, though the latter is an independent congiven in writing to the compress company, tractor, and not under the immediate conand for its own convenience, and at its trol of the railway company while doing own cost, and the insurance was obtained the work of compression in its behalf. by its direction by the compress company, There would be no justice in such holding, in the name of the defendant and for its and we are clear it would violate the genbenefit, and such policies were delivered to eral rule that the carrier, after the freight the defendant and sent by its agent to Dal- has been received by it, must be regarded las. Most probably the cost of compression as liable, at least, for the negligence of its and insurance was paid by the plaintiffs in own servants, and also for that of the servthe rate paid by them for the transportation ants of an independent contractor, employed of the cotton, as that cost was one of the by it to do work upon the freight for its factors which may be supposed to have en- own convenience and at its own cost. tered into the rate of freight charged by the In California Ins. Co. v. Union Compress defendant; but the total sum paid for trans- Co. 133 U. S. 387, 33 L. ed. 730, 10 Sup. portation by plaintiffs left the matter with Ct. Rep. 365, the question was simply as to defendant to compress and insure if it saw the liability of the insurance company on a fit, which it probably would think fit to do in policy of insurance against fire, issued by all cases, as an ordinary business precaution. it to the Union Compress Company upon The fact that in getting the cotton com-cotton in the possession of the compress pressed the railway chose to have it done by company for compression, and which bean independent contractor, over whose acts longed to divers other parties. The policy it had no control while the cotton was be- insured the cotton for the plaintiff while ing compressed, and the fact that it would "in bales, their own or held by them in order the compress company, after compress- trust or on commission.” The defense was ing, to load the cotton on cars selected by that, as the compress company did not own defendant's agent, did not in any way affect the cotton, and the beneficiaries under the the fact that the cotton had been received policy were its owners, that no interest of by the railway company, and that it was any carrier was covered by the policy. The thereafter subject to its full control. The court held that the railway companies were defendant could not devest itself of the re- beneficiaries under the policy, because they had an insurable interest in the cotton, and ance company endeavoring to collect from to that extent were its owners, and that the defendant what it had paid to the ownit was held in trust for them by the plain-ers of the cotton. In that case the cotton, tiff. The railway company had issued bills which had been destroyed by fire, was in of lading upon the surrender of the receipts the possession of the compress company, and of the compress company. It was held that the railway company had never given any where the original depositors of the cotton bill of lading for it. The insurance comhad surrendered to the railroad companies panies had issued policies upon and dethe receipts which they had taken from the livered them to the owners of the cotton, compress company, that those companies be- and when the cotton had been destroyed by came substituted in the relation to the com- fire the companies paid the losses and press company which before had been held claimed that the railway company was liaby the depositors of the cotton; that the ble under the contract which the company railroad companies thus became the bene- had made with the compress company to ficiaries of the trust so far as the compress receive the cotton and transport it over its company was concerned, because they thus railroad across the Arkansas river to the became the persons to whom that company press of the compress company in Argenta, owed the duty of bailment, and the persons a distance of a mile and a half. The insurentitled to demand possession of the prop- ance companies insisted that, by the failure erty from the plaintiff. The policy also con- of the railway company, under its contract tained a provision that it should be void if with the compress company, to transport there were any change in the possession of this cotton as fast as it came in, the amount the insured property, and the defendants of the cotton became so great as to coninsisted that there was such a change, caused stitute a public nuisance, as it was piled by the signing of the bill of lading by the up in the compress company's warehouse railway companies in return for the receipts and overflowed into the adjoining streets. given by the compress company upon the This court held that, as there had been no deposit of the cotton with the latter com- bills of lading issued by the railway company, although no actual change had taken pany for the cotton which had been deplace, and the cotton still remained in the stroyed, the failure of the railway company custody of the compress company. It was, to furnish sufficient transportation for the however, held that the railway companies, cotton to the compress company, while it in acquiring the receipts of the compress may have been a breach of the contract becompany and issuing bills of lading for the tween the railway company and the comcotton, took only constructive possession of press company, yet such breach created no it, and the plaintiff retained actual physical liability in contract or tort to the owners possession of it, and did not lose any ele- or insurers of the cotton or to any other ment of possession necessary to give it the person. The court, at page 237, L. ed. at right to effect the insurance for its own page 158, Sup. Ct. Rep. at page 558, said: benefit and as bailee or agent for the pro- “This cotton, certainly, was in the exclusive tection of the railway companies, although possession and control of the compress comthe railroad companies' was the right to pany. The railway company had not as

. ultimate possession, which passed to them sumed the liability of a common carrier, or by the original deposit of the cotton re- even of a warehouseman, with regard to it; ceipts given by the plaintiff.

had given no bills of lading for it; had no The question of whether there had been custody or control of it and no possession a change of possession within the meaning of it, actual or constructive, and had no of that expression as used in the insurance hand in placing or keeping it where it was.” policy is entirely different from that of In speaking of the issuing of bills of ladwhether immediate control of the cotton ing by the railway company for certain passed to the railway company by virtue of other cotton and what effect it had upon the the delivery of the bill of lading in this rights of the parties, in the case then under case, so as to render the company liable consideration, the court said, page 238, L. for any neglect by it or its agent in regard ed. page 159, Sup. Ct. Rep. page 558: to the subsequent care of the cotton. In “There is nothing else in the case which the case at bar, not only was there a con- has any tendency to show that the railway structive possession by the railway com- company had or exercised any control or pany, but that company assumed full con- custody of the cotton, or of the place where trol of the cotton, and gave directions to the it was kept by the compress company, becompress company what to do with it. fore it was put upon the cars by that com

In St. Louis, I. M. & S. R. Co. v. Company. The railway company evidently neimercial Union Ins. Co. 139 U. S. 223, 35 Lther considered itself, nor was considered ed. 154, 11 Sup. Ct. Rep. 554, the question by the compress company, as having aswas also in regard to insurance, the insur- sumed any responsibility for the care or custody of the cotton, until it had been in-, lading issued under the circumstances of sured in its behalf and loaded upon its cars. this case. We think the argument is not The evidence warranted, if it did not re- sound. The rule of the Texas commission quire, the inference that the bills of lad-applies to a case when the cotton is tening were issued merely for the convenience dered to the railway company, although at of all parties, and with no intention of mak- the time it is upon the compress company's ing any change in the actual or the legal platform. Now, if the railway company did custody of the cotton until it was so loaded." not regard the presentation of these reSuch is not the case here.

ceipts as in fact a tender to the railway comIn Missouri P. R. Co. v. McFadden, 154 pany of the cotton in question, or if it U. S. 155, 38 L. ed. 944, 14 Sup. Ct. Rep. were not a valid tender of the cotton, it 990, the case was decided upon the facts could have refused to sign the bill of lading. therein stated, which were that it was un- The same may be said of rule 11 of the derstood both by the carrier and the shipper company itself. The company evidently rethat the cotton was not to be delivered at garded the cotton as tendered them, and the time the bills of lading were issued, the issued the bill in acknowledgment of the cotton at that time being in the hands of fact of such tender. the compress company, which compress com- We think the evidence in this case made pany was the agent of the shipper, it be- out a delivery to and acceptance by the railing the intention of the parties at the time way company of the cotton in question, and the bills of lading were issued that the cot-that the compress company had the actual ton should remain in the hands of the com- custody of the cotton as the agent of the press company, the agent of the shipper, for railway company, and the question of the purpose of being compressed. These al- whether the persons in whose custody it was legations were made in the answer of the at the time of the fire were guilty of neg. company, which was excepted to, and their ligence was a question which should have truth was therefore admitted. The trial been submitted to the jury. court had, nevertheless, held the company The judgment of the Circuit Court of Apliable for the loss of the cotton. This court peals and that of the Circuit Court shouia said (page 160, L. ed. page 946, Sup. Ct. be reversed and the case remanded to the Rep. page 991): "The case presents the Circuit Court with directions to set aside simple question of whether a carrier is lia- the verdict and to grant a new trial. ble on a bill of lading for property which,

Reversed. at the time of the signing of the bill, remained in the hands of the shipper for the purpose of being compressed for the ship- VICENTE SERRA and Maria Obleno, Piffs.

in Err., per's account, and was destroyed by fire before the delivery to the carrier had been

ADRIANO MORTIGA. consummated." The court held that, under such circumstances, there was no liability Constitutional law—due process of law on on the part of the common carrier, because criminal appeal-Bill of Rights in Philipit had never had the cotton delivered to pine Islands. it, the issuing of the bill of lading being

The refusal of the supreme court of subject to the intention of the parties, and the Philippine Islands, on an appeal in a the cotton remaining in the hands of the criminal case, to entertain an objection to compress company as agent of the shipper. such objection was not raised before final

the sufficiency of the complaint, because The facts in the case at bar are totally judgment in the trial court, does not amount different.

to a conviction of the accused without inStress was laid in the argument before forming them of the nature and character us upon the fact that, under the 13th rule of the offense charged, or to a conviction of the Texas railroad commission, the de- without due process of law, in violation of fendant was bound to sign the bill of lading the Bill of Rights enacted by Congress for when the receipts of the compress company 1902 (32 stat. at L. 691, 692, chap. 1369, U.

the Philippine Islands in the act of July 1, were presented to the railway company, and S. Comp. Stat. Supp. 1905, p. 391), although that, therefore, the defendant cannot be that court, on appeal, has power to re-exheld to have become liable by virtue of the amine both the law and the facts, where, delivery of the bill of lading in question up as a necessary consequence of the facts on such a purely arbitrary order. It is also found, the testimony offered at the trial, urged that the 11th rule of the defendant, without objection or exception in any form, which is set up in the foregoing statement, established every ingredient of the crime. and which is to the same effect as the order of the railroad commission, was adopted

[No. 202.] simply pursuant to that order, and, there. Submitted February 1, 1907. Decided fore, no liability attaches from the bill of

February 25, 1907.

V.

IN

N ERROR to the Supreme Court of the adultery, as defined by the articles of the

Philippine Islands to review a judgment Penal Code already referred to, were shown which affirmed, with a modification of the to have been committed. The accused were sentence imposed, a conviction of the crime sentenced to pay one half of the costs and of adultery in the Court of First Instance to imprisonment for two years, four months, of Albay, Eighth Judicial District. Af- and one day. The record does not disclose firmed.

that any objection was taken to the suffi. The facts are stated in the opinion. ciency of the complaint before the trial.

Messrs. Aldis B. Browne, Alexander Brit- Indeed, it does not appear that, by objecton, and Maurice Kelly for plaintiffs in er- tion in any form, directly or indirectly, was ror.

any question raised in the trial court conNo appearance for defendant in error. cerning the sufficiency of the complaint. An

appeal was taken to the supreme court of Mr. Justice White delivered the opinion of the Philippine Islands. In that court error the court:

was assigned on the ground, first, that "the Articles 433 and 434, found in chapter 1 complaint is null and void because it lacks of title 9 of the Penal Code of the Philip- the essential requisite provided by law;" pine Islands, define and punish the crime of and, second and third, because it did not adultery. The articles referred to are in appear from the proof that guilt had been the margin.

established beyond a reasonable doubt. The It is conceded at bar that, under the Phil- conviction was affirmed. The assignment ippine law, the offense of adultery, as de- of error which was based on the contention fined by the articles in question, is classed that the conviction was erroneous because as a private offense, and must be prosecuted, the complaint did not sufficiently state the not on information by the public prosecutor, essential ingredients of the offense charged but by complaint on behalf of an injured was thus disposed of by the court in its party. In the court of first instance of Al- opinion: “The objections to the complaint, bay, eighth judicial district, Philippine Is- based upon an insufficient statement of the lands, Adriano Mortiga, the defendant in er- facts constituting the offense, cannot be conror, as the husband of Maria Obleno, filed sidered here, because they were not prea complaint charging her with adultery sented in the court below. United States v. committed with Vicente Serra, the other Sarabia, 3 Off. Gaz. No. 29." plaintiff in error, who was also charged. The assignments based on the insufficienThe complaint is in the margin.I

cy of the proof to show guilt beyond a reaThe defendants were arraigned, pleaded sonable doubt were disposed of by an analnot guilty, were tried by the court without ysis of the evidence, which the court deemed a jury, and were convicted. The court stat led to the conclusion that all the statutory ed its reasons in a written opinion, analyz- elements of the crime were proven beyond ing the testimony, and pointing out that all a reasonable doubt. An application for a the essential ingredients of the crime of rehearing, styled an exception, was made,

† Art. 433. Adultery shall be punished Maria Obleno, accuses Vicente Serra and with the penalty of prisión correccional in the said Maria Obleno of the crime of adulits medium and maximum degrees.

tery, committed as follows: Adultery is committed by the married That on or about the year 1899, and up woman who lies with a man not her hus- to the present time, the accused, being both band, and by him who lies with her know married, maliciously, criminally, anu illeing that she is married, although the mar- gally lived as husband and wife, and conriage be afterwards declared void.

tinued living together up to the present Art. 434. No penalty shall be imposed for time, openly and notoriously, from which the crime of adultery except upon the com- illegal cohabitation two children are the isplaint of the aggrieved husband.

sue, named Elias and José Isabelo, without The latter can enter a complaint against the consent of the prosecuting witness, and both guilty parties, if alive, and never, if contrary to the statute in such cases made he has consented to the adultery or par- and provided. doned either of the culprits.

(Signed) Macario Mercades,

Attorney at Law. The United States of America,

(Signed) Adriano Mortiga. Philippine Islands, Eighth Judicial Dis- Albay, February 24, 1904. trict:

Sworn and subscribed to before me this In the Court of First Instance of Albay. 24th day of February, 1904. The United States and Macario Mercades, in

(Signed) F. Samson, Clerk. Behalf of Adriano Mortiga,

Witnesses: Adriano Mortiga.

Bernardo Mortiga. Vicente Serra and Maria Obleno.

Eulalio Mortiga. The undersigned, a practising attorney, in

Placido Solano. behalf of Adriano Mortiga, the husband of

Casimira Marias.