120; Campbell v. Stiles, 9 Mass. 217; Blake v. Blanchard, 48 Maine, 297; Burrell v. Burrell, 10 Mass. 221; M'Gee v. Barber, 14 Pick. 212; Currier v. Bartlett, 122 Mass. 133; Avery v. Bowman, 40 N. H. 453; Perry v. Whipple, 38 Vt. 278; Willard v. Whipple, 40 id. 219; Phelps v. Ball, 1 Johns. Cas. 31; Bissell v. Kip, 5 Johns. 100; Jackson V. Walker, 4 Wend. 482; Jackson v. Anderson, 4 id. 474; Prescott v. Prescott, 62 Maine, 428. Corthell v. Egery. Opinion by Symonds, J.

[Decided June 17, 1882.]

NEGLIGENCE -DAMAGES-- - BUSINESS OF PHYSICIAN NOT REGULARLY LICENSED.-In an action to recover

for personal injuries sustained by defendant's negligence, where the plaintiff claimed damages for loss of business as a physician, it is not error to instruct the jury that the plaintiff is not prohibited from recovering damages for loss of business as a physician, although he has no such degree from a public medical institution as would entitle him to maintain an action for professional services. "If by the injuries received the plaintiff was deprived of his capacity to perform his ordinary labor, or attend to his ordinary business, the loss he sustained thereby is an element of damages. The true test is what his services might be worth to him in his ordinary employment or business. It is not what sum he might legally recover for such services, but what he might fairly be expected to receive therefor. What he had previously been receiving for his services in his business is proper evidence on this point. A clergyman who has no fixed salary, but is dependent entirely upon voluntary contributions for his compensation for his services, as in some of our churches, may have an income, aud if by an injury he is deprived of his capacity to perform his duties, might lose that income, and suffer as much loss as if he was receiving a salary fixed by contract; and still he could not enforce the payment of any thing from his church or society. The plaintiff was practicing his profession as a physician. If he had received no medical degree or license, still he was not pursuing a business in violation of law. The law would afford him no remedy for the collection of his charges for his services, but if his patients voluntarily paid him therefor, so that he was receiving an income of a certain amount for his services, that was the measure of the value of his capacity to render them, and might be fairly considered as evidence tending to show that he would receive similar compensation in the future. This question was fully considered in England in the recent case, Phillips v. London and South Western R. Co., 42 L. T. Rep. (N. S.) 6. The plaintiff was a physician, and brought his action for a personal injury by which he was incapacitated from attending to his business. At the trial he proved that before the injury he had been receiving large special fees in the nature of gratuities from wealthy patients, which with his regular charges gave him an income of about five thousand pounds per year. The jury rendered a verdict for the plaintiff for sixteen thousand pounds. The case was taken to the court of appeal, and one of the questions was whether the jury was properly permitted to consider the special fees in estimating the value of the plaintiff's business and the court held that it was a proper matter for their consideration." Holmes v. Halde. Opinion by Libbey,

amendment to this Constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published as provided by law for three months previous to the time of making such choice; and if in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment to the people in such manner and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment shall become a part of the Constitution of this State." The house branch of the Iowa legislature in 1880 passed a joint resolution proposing this amendment to the Constitution: "No person shall hereafter manufacture, sell or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented, or vinous liquors, except for medicinal and mechanical purposes.' This was sent to the senate, which according to the senate journal 'passed this substitute: "No person shall manufacture for sale, or sell or keep for sale, as a beverage, or to be used, any intoxicating liquor whatever, including ale, wine and beer." The house concurred in the senate amendments." According to the house journal the committee on enrolled bills reported that such joint resolution was correctly enrolled. Afterward the speaker of the house and the president of the senate signed and the governor approved as the joint resolution this: "No person shall manufacture for sale, or sell or keep for sale, as a beverage, any intoxicating liquors whatever, including ale, wine and beer." There is no constitutional provision requiring a joint resolution proposing to amend the Constitution to be signed by the presiding officers of the two houses, or by the governor, or to be enrolled. The resolution as above signed and approved was agreed to by the next general assembly and ratified by the people at an election. Held, that the journals of each of the two houses, and not the resolution signed by their presiding officers and approved by the governor is the primary and best evidence of the contents of the joint resolution passed by each house; that the house journal failed to show that the house adopted the same resolution as the senate; that parol evidence was not admissible to show that the same resolution was adopted; that the action of the succeeding legislature and of the people did not have the effect to give validity to the action of the former legislature and that there was no valid amendment of the Constitution. The leading and better-reasoned of the cases which hold the enrolled bill is a verity, and that the journals cannot be considered in determining the question, whether such bill was constitutionally passed by the general assembly, or what the contents of the bill were, are People v. Devlin, 33 N. Y. 269; Sherman v. Story, 30 Cal. 254; Pangborn v. Young, 32 N. J. Law, 29; Pacific R. Co. v. The Governor, 23 Mo. 353; Evans v. Brown, 30 Ind. 514. These cases are based on substantially the same reasons which are stated in the New York case, as follows: The journals are not made evidence by the Constitution: they are not made so by statute; they were never made so at common law." In the New Jersey case it is said: They (the journals) are not required to be attested in There is required not a single any way whatever. guaranty to their accuracy or truth; no one need

In

vouch for them; and it is not enjoined that they should be either approved, copied or recorded." the Missouri case it is said: "But there is no provision of law declaring how the journals shall be authenticated, or what shall be their effect." State v. Swift, 10 Nev. 176; Eld v. Gorham, 20 Conn. 7; Green v. Weller, 32 Miss. 650; Division of Howard Co., 15 Kan. 194; Annapolis v. Howard, 32 Md. 471; Clara v. State, 5 Iowa, 509; and Duncombe v. Prindle, 12 Iowa, 1. All that was determined in relation to the question under consideration, in the two last-named cases, was that where there is a conflict between the printed act or statute, and the enrolled act filed in the office of the secretary of State, the latter is the ultimate proof of the true expression of the legislative will. Whether the journals were competent evidence, or their effect, was not considered in either case. See also, Spangler v. Jacoby, 14 Ill. 297; People v. Starne, 35 id. 121; Miller v. Goodwin, 70 id. 659; Burr v. Ross, 19 Ark. 250; State v. Platt, 2 S. C. (N. S.) 150; James v. Hutchinson, 43 Ala. 721; Moody v. State, 48 id. 115; Smithee v. Garth, 33 Ark. 17; Board of Sup'rs v. Heenan, 2 Minn. 330, (Gil. 281;) Southwark Bank v. Com. 26 Penn. St. 446; Op. Justices, 35 N. H. 579. Also, 52 N. H. 622; People v. Mahoney, 13 Mich. 481; Berry v. Railroad Co., 41 Ind. 446; Osborn v. Staley, 5 W. Va. 84. See also, upon the effect of the action of the second legislature on Brittain v. Kinnard, 1 Brod. & B. 432; Betts v. Bagley, 12 Pick. 572; Marston v. Mott, 12 Wheat. 19; Vanderheyden v. Young, 11 Johns. 150; Birdsall v. Phillips, 17 Wend. 464; Ex parte Watkins, 3 Pet. 192; People v. City of Rochester, 21 Barb. 656; Ryan v. Varga, 37 Iowa, 78. Koehler v. Hill. Opinion by Seevers, J. Beck, J. dissented. [Decided Jan. 17, 1883.]

ESTOPPEL- -SILENCE AT PUBLIC SALE OF PROPERTY. 1 Plaintiff, a stranger at a public sale of personal property, knowing only defendant among those present, purchased for value horses which were sold there. Defendant, who had a claim on the horses of which plaintiff was ignorant, recommended plaintiff to purchase other property and made purchases himself, but said nothing as to his claim on the horses, and stated to plaintiff that one of the horses would suit him. Held, that defendant was estopped from asserting his claim to the horses against plaintiff. said in Gregg v. Wells, 10 Adol. & E. 90: "A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterward dispute that fact in an action against the person whom he himself assisted in deceiving." Miles v. Lefi. Opinion by Rothrock, J. [Decided Dec. 9, 1882].

As is

MORTGAGE -PRIORITY BETWEEN MORTGAGES. Defendant's mortgage was executed December 7, and was for purchase-money. It was not recorded until December 24. Plaintiff's mortgage upon the same property was both executed and recorded December 15, and was to secure an existing indebtedness. Held, that even though plaintiff incurred at the time certain expense in transacting the mortgage business, his equity was not superior to that of defendant and defendant's mortgage was a prior lien. Pancoast v. Duval, 26 N. J. Eq. 445; Gafford v. Stearns, 51 Ala. 434: Manhattan Co. v. Evertson, 4 Paige, 276; Vanheusen v. Radcliff, 17 N. Y. 584. Phelps v. Fockler. Opinion by Adams, J.

religiously and politically dishonest; D. H. Bays will steal; D. H. Bays is dishonest." Held, not slanderous per se. It is said in Townsend, Slander & Libel, (2d ed.) 192, that the words "you will steal" import a charge of larceny. Cornelius v. Van Slyck, 21 Wend. 70, is the only case pertaining to the question cited by the author. But it fails to support the doctrine of the text. The words held to be actionable are "you will steal and I can prove it." The conclusion that the words are actionable seems to be based upon those which declare that the speaker could prove that the crime of larceny had been committed by the other party, the court holding that they imply a charge of crime before committed. The doctrine is announced in the decision that an assertion of an intention ou the part of the person spoken of to commit crime, and that he will in the future do a criminal act, is not actionable. Of course it is competent for the plaintiff to show that the words spoken, under the peculiar circumstances attending their utterance, expressed a charge of crime before committed, and if the jury so found, the language should be regarded as actionable per se. Bays v. Hunt. Opinion by Beck, J. [Decided Dec. 12, 1882].

RECENT ENGLISH DECISIONS.

LIBEL NOTICE BY MERCHANT TO CUSTOMERS THAT HE WILL NOT RECEIVE CHECKS ON SPECIFIED BANK.

H. & Sons occasionally received in payment from their customers, checks on various branches of a bank, which the bank cashed for the convenience of H. & Sons at a particular branch. Having had a squabble with the manager of that branch, H. & Sons sent a printed circular to a large number of their customers (who knew nothing of the squabble)-"H. & Sons hereby give notice that they will not receive in paymeut checks drawn on any of the branches of the" bank. The circular became known to other persons; there was a run on the bank and loss inflicted. The bank having brought an action against H. & Sons for libel, with an innuendo that the circular imputed insolvency, held, affirming the decision of the Court of Appeal (Lord Penzance dissenting) that in their natural meaning the words were not libellous; that the inference suggested by the innuendo was not the inference which reasonable persons would draw; that the onus lay on the bank to show that the circular had a libellous tendency; that the evidence, consisting of the circumstances attending the publication, failed to show it; that there was no case to go the jury; and that the defendants were entitled to judgment. Authorities referred to Woolworth v. Meadows, 5 East, 463; Wood v. Brown, 6 Taunt. 169; Wright v. Clements, 3 B. & Ald. 503; Goldstein v. Foss, 6 B. & C. 154; Hearne v. Stowell, 12 A. & E. 719; Capel v. Jones, 4 C. B. 259; Sturt v. Blagg, 10 Q. B. 908; Bradlaugh v. Queen, 3 Q. B. D. 607; Harris v. Warre, 4 C. P. D. 125; Rex v. Shepley, 4 Doug. 73, and 6 id. 164; Hart v. Wall. 2 C. P. D. 146; Parmiter v. Coupland, 6 M. & W. 108; Fisher v. Clement, 10 B. & C. 472; Mulligan v. Cole, 10 Q. B. 549. House of Lords. Aug. 1, 1882. Capital & Counties Bank v. Henty. Opinions by Lord Selborne, Lord Ch. and Lords Penzance, Blackburn, Watson and Bramwell. (L. R. 8 App. Cas. 741).

2. In direct conflict with the above, it is held in other cases that the contract rate ceases at maturity, and thereafter the legal rate prevails.

3. That where the contract by its terms provides for a given rate until the principal should be paid, the contract rate continues until judgment, and such rate being provided for by agreement, no statute subsequently passed, could impair the obligation of the contract, which we think will not be disputed.

4. That a judgment recovered prior to the enactment of the statute of 1879, is not affected thereby, but continues to bear interest at the rate existing at the time of its entry.

5. That a liability for a tort created by statute is not a "contract or obligation made" within the meaning of said act of 1879.

Now, in regard to agreements which do not, in terms, provide for interest after maturitg, we think that the case of Hamilton v. Van Rensselaer, 43 N. Y. 244, which holds that "after the principal sum has fallen due, interest is payable not by the original terms of the agreement, but as damages for a breach of contract," is decisive.

In that case the defendant guaranteed "the punctual payment of the interest " upon a bond payable in six years and six months from date with interest semiannually. The only question in the case, was whether he was liable for the interest accruing after the principal had fallen due, with the payment of which it was sought to charge him; and the court said, p. 247: "By strict legal rules, interest as such, cannot be recovered after default in the payment of the principal, and such interest is not therefore within the language of the contract interest recoverable after the principal became due, whether it is to be regarded as interest upon a continuing contract, or as damages for its nonperformance was not in the contemplation of the parties at the time, and was not the interest specified and provided for in the defendant's contracts."

Strange as it may seem, so far as we by a careful examination of the cases have been able to discover, this case appears to have been entirely overlooked.

See also to same effect, Melick v. Knox, 44 N. Y. 676; and see 30 Am. Rep. 46 (uote).

By

In the province of Ontario an act has been in force ever since 1834, similar to the " singular bill" passed in North Carolina, to which you refer on p. 142. it the father, or if he be dead, the mother of any unmarried female who has been seduced, may maintain an action for the seduction (notwithstanding such seduced female was at the time of her seduction serving or residing with another person); in all cases where he or she could have maintained it if the seduced female had been living under his or her protection. At the trial no proof of any act of service need be given, but the same shall in all cases be presumed, and no proof shall be received to the contrary. If before the seduction the parents had abandoned the party seduced, or reside out of Ontario, or do not bring an action within six months of the birth of the child, then any person, who by reason of the relation of master, or otherwise, would at common law have been entitled to maintain an action for seduction, may still do so.

KINGSTON, ONT., Feb. 26, 1883.

R. V. R. Jr.

CONVERSION BY AGENT.

Editor of the Albany Law Journal:

There is a wide-spread belief in the profession that an agent who fails to pay over money collected in the course of his agency is guilty of a conversion. Accordingly, the attorney usually draws his complaint in such a case by first stating the facts and then adding an allegation charging conversion.

In the case of Ridder v. Whitlock, 12 How. Pr. 208, Ingraham, J., held that where a factor sold goods for his principal and retained the proceeds he was guilty of conversion. Yet it is laid down as one of the essential elements of a conversion that the plaintiff must have been entitled to the possession of the identical property in question (Orton v. Butler, 5 B. & A. 652), and we know, as matter of fact, that agents and factors seldom do turn over the identical moneys received, but that their practice is to account at stated periods and pay over the balance found; due, and the lawfulness of this practice has never been questioned, that I am aware of.

In Harris v. Schultz, 40 Bar. 515, it was said: "The omission or refusal to pay over moneys received by a factor, agent, or trustee in the cause of his agency or trust, will not lay the foundation of an action of trover. He is not bound to pay over the specific money that he receives."

In Walter v. Bennett, 16 N. Y. 250, it was said: "The duty of an agent for sale is to account for the proceeds of his principal's property; but he is not guilty of a conversion if he does not deliver the specific proceeds to his principal.".

Connaughty v. Nichols, 42 N. Y. 83, was against a factor for proceeds of butter, etc., sold for plaintiff. The complaint contained an allegation charging conversion. It was held nevertheless that the complaint was on contract, and that the words of conversion did not change it.

In Greentree v. Rosenbaum, 61 N. Y. 583, the complaint alleged an agency and the failure of the agent to pay over the proceeds, and further contained an allegation charging conversion. Dwight, C., said: The charges of a conversion are mere surplusage. They were a mere legal conclusion drawn by the pleader, which did not logically follow from the facts stated.' "It is not legally true that a commission merchant, who has sold goods and received the price, does by retaining the price convert it to his own use, so as to make him liable in an action of trover."

It is not contended that trover will never lie for money. That point was settled in this State in the Court of Appeals, in the case of Gorden v. Hostetter, 4 Ala. (N. S.) 263; but that was a case of money ab stracted by a clerk from a money drawer. And Porter, J., there stated: "It is true, that under ordinary circumstances the refusal to pay over money had and received to the use of another is not in law a conversion." It appears then to be settled that a principal is not entitled to the identical money collected by an agent as such, that the agent is a debtor to his principal for the amount collected and not a bailee, that his failure to pay an account is not a conversion but a breach of agreement, and that the principal's remedy is not trover, but an action for money had and received.

But it is possible to imagine a closer case than any of the foregoing. Suppose the clerk in the last case had been sent out of the store to collect a bill and had failed to turn over the proceeds; or suppose that a collector, such as are employed by large firms to collect bills, fails to pay over moneys collected. Are these guilty of a conversion?

The answer is-are they agents in the ordinary sense of the word?

I think not. Their position is very different from that of agents. They are less independent. They are really clerks, directly under the eye of their master. I think their authority might be regarded as impliedly limited to the duty of collecting and turning over the identical moneys received, and therefore that a failure in that respect would constitute a conversion.

This distinction between trover and an action for money had and received is not without importance under our practice. Because in the former action the defendant may be arrested on execution against his person without the previous issuing of an order of arrest; in the the latter he cannot.

See Code, § 1487, and § 549, subd. 2 and § 550 subd. 3. CHARLES R: SMITH.

NEW YORK, March 2, 1883.

A MARE'S NEST DISCOVERED.

Editor of the Albany Law Journal:

The general character of your journal for accuracy hardly entitles you to exemption from criticism for the plain error into which you fell in your "Current Topics," upon Senator Nelson's bill. (Vol. 27, p. 102.) A reader has the right to inquire, whether any lawyer has the liberty to take such a stupendous flight, based upon your first error, as did your Liberty correspondant on p. 159, without himself (as is evidenced by his article) having the least idea of the matter in hand.

The part of section 1003, as to disregarding errors, has no application whatever to jury trials as such, that is, to trials of common law actions. (Code Civ. Pro., $968). It applies only to equity actions, and to the trial of specific questions of fact by a jury in equity actions. Court of Appeals, March, 1882.

Machen v. Lamar Ins. Co., 2 McCarty Civ. Pro. R. 81. The verdict in such a case is only in aid of the conscience of the court and does not bind it. Birdsall v. Patterson, 51 N. Y. 43; Vermilyea v. Palmer, 52 id. 471; Watt v. Starke, 101 U. S. 247; Carroll v. Dewine, 13 W. Deg. 401.

Section 1003 (so far as the matter of disregarding errors goes), introduces no rule, but simply declares one older than many a "half a life." 2 N. Y. 563; 34 id. 557; 25 id. 501. A different rule as to the effect of error was held as to the trial of an equity action by the court where no issues were sent to a jury, and it is quite plain that section 1003 only relates to errors on the trial of the specific question of fact sent to a jury. So far as the trial is before the court as such, the rule doubtless remains as laid down in Toole v. Beecher, 78 N. Y. 155; Norton v. Mallory, 63 id. 434

Whether so intended or not, your comments would be clearly understood as meaning that section 1003 had introduced into trials by jury, and by the court, a rule which never before, nor under the new Code, did apply only to the trial of specific questions of fact, in the nature of a feigned issue" by jury. 101 U. S. 250, 255. That such is your meaning, ostensibly, we have Geo. H. C. on 46 jury trials." You are each in ROBERT A. KUTSCHBACH.

error

SHERBURNE, N. Y., March 1, 1883.

[We shall leave our "Liberty correspondent" to settle his own scores with Mr. K. It strikes us that Mr. K. is by far “too previous." We decline to admit that we were in error, and are reluctant to be impeached of error solely through the fervor of Mr. K.'s imagination. We described Senator Nelson's bill accurately. We were speaking of section 1003. We suppose Mr. K. is not the only lawyer who knows its tenor, or at all events that all lawyers are capable of turning to it and reading it. Mr. K. should not infer that we meant something that we did not say, and should not criticize us for that imagined meaning.

We do not see that our "Liberty correspondent" misunderstood us. ED. ALB. LAW JOUR.]

TENANCY BY THE ENTIRETY.

Editor of the Albany Law Journal:

In last week's issue, you refer to Freet v. Buckley, 28 Hun (which I have not seen yet) holding, upon the authority of Meeker v. Wright, 76 N. Y. 262, that tenaucy by the entirety is abolished by the married women's acts. I do not quite understand your remark, in regard to Meeker v. Wright, that "it does not hold anything of the sort, although it looks that way." As I understand Meeker v. Wright, lands were conveyed to husband and wife in 1865; in 1870, the husband conveyed all his estate in the same premises with others to his wife, and took from her a purchase money mortgage upon the same premises. The deed from the husband to the wife also purported to convey certain personal property. The administrator of the husband foreclosed the mortgage for non-payment of a balance, claimed to be due thereon. The principal (though not the only) question in the case was the effect of the deed to the husband and wife in 1865, in view of the married women's acts, and especially the act of 1860. Danforth, J., held that lands conveyed to husband and wife since 1860, jointly (without specification in the deed of the interest or estate granted), are held by them as tenants in common, and not as tenants by the entirety, and that as to such lands so conveyed tenancy by the entirety in this State is abolished.

In this opinion, Rapallo and Miller JJ., concurred; but the majority of the court did not pass upon the question, but concurred in the result upon other grounds.

Whether this was a decision of the Court of Appeals upon this vexed question or not, in other words, whether it became res adjudicata in our highest court, certainly the effect of the decision was and has been to upset and unsettle numerous titles all over the State, which had theretofore rested undisturbed under prior decisions almost uniformly the other way.

Other than this case of Freet v. Buckley, which you refer to, I have not been able to find any instance of an appellate tribunal in this State, since Meeker v. Wright, supra, which has adopted and followed that case, but one, viz.: Zorntlein v. Brom, N. Y. Superior Court, January, 1883 (not yet reported), where a divided court held the same as in Freet v. Buckley, without a discussion of the authorities, and quoting Meeker v. Wright. In this opinion Russell, J., did not

concur.

On the other hand, the following cases have come to my knowledge, all decided since Meeker v. Wright, 76 N. Y., and with that case before them, it not being recognized as an authority of the Court of Appeals, and the question not being considered as res adjudicata in that court, viz.: Forsyth v. McCall, Supreme Ct., 4th Dept., Rochester, June, 1880; Bertles v. Nunan, same court and dept., Rochester, March, 1882; and Meeker v. Wright (on its way up a second time), Supreme Ct., 3d Dept., Ithaca, April, 1882. Very singularly there is no opinion in either of these cases, but each is on its way to the Court of Appeals (and I believe the latter is true also of Zorntlein v. Brom, supra).

Forsyth v. McCall, was an affirmance on the report and opinion of a referee below. Bertles v. Nunan, was decided by the same court as Forsyth v. McCall. Meeker v. Wright, went down for a new trial, and I understand all minor and subordinate questions were eliminated from the case, and the objection of the unsettlement of titles was strongly urged. The Special Term on the new trial (I am informed by counsel in