was claimed under the mortgagee. The court say, at page 46: "Where there is no deed, and affidavits supply its place, they can neither be contradicted nor amended by oral evidence. If they do not show a sale of the mortgaged premises, the foreclosure is not complete. Without either a common-law or a statute conveyance, the title can not pass." In Cohoes Co. v. Goss, 13 Barb. 144, Cady, J., giving the opinion of the court, held: The affidavits are a substitute for the deed, and until made and recorded, no title passes. The statute gives no effect to a foreclosure by advertisement, unless conducted as prescribed in the statute. Layman v. Whiting, 20 Barb. 559, holds the same doctrine fully, and also holds that, where an affidavit of service of notice on the mortgagor is made after commencement of action, the plaintiff will fail to show title in himself at the time the suit was commenced, and must therefore be nonsuited. Also, that making and recording of an affidavit of service on mortgagor, after the commencement of the action, will not vest a title in the purchaser by relation, as of a time previous, so as to enable him to recover. Also that parol evidence of service of notice of sale upon mortgagor is admissible, but it will not dispense with the production of the affidavit specified in the statute. Bryan v. Butts, 27 Barb, 503, held the same doctrine fully. And also that a mortgagor is not divested of his title until all the proceedings to foreclose the mortgage have been completed, and not until all the steps required by statute have been taken; and there is no transfer of title until all the necessary affidavits have been made and recorded, and that it is the recorded affidadavits that operate as the statutory transfer of title. This case presented the precise point involved in the case at bar, and fully covers this case in this respect.

Dwight v. Phillips, 48 Barb. 116, holds the same doctrines, and holds that "the statutory proceedings to foreclose a mortgage are not proceedings in court, so as to authorize the courts to remedy defects in them, and holds, with Judge Hand, that new affidavits might be recorded which would lay the foundation of a new action. Tuthill v. Tracy, 31 N. Y. 157, settles this question. Bunce v. Reed, 16 Barb. 347, was a special-term case, decided by Justice Hand, and while he held that new affidavits might be recorded, he expressed no opinion on the question whether they could be used in a suit pending when made, or whether they could have any retroactive effect. This case decides nothing. Howard v. Hatch, 29 Barb. 297, only decides that the affidavits of sale need not be recorded. That the affidavits when made are evidence of title. This case requires that the proof shall be by affidavit. There was no question in the case, whether defects in the affidavits could be supplied by parol evidence, or whether new affidavits, made after action was commenced, could be used on trial. This is the only case found which holds that affidavits need not be recorded. Justice Balcom wrote the opin. ion.

Mowry v. Sanborn, 62 Barb. 223, was the case at bar on the first appeal. Justice Balcom wrote the opinion. All that he says on this subject is obiter. No such question was discussed on the argument, and no such question was either directly or indirectly involved in the case. As an authority for his obiter remarks, Judge Balcom cites the case of Davis v. Davis (MSs.), decided in the sixth district, some "18 years" before. The case of "Davis v. Davis (MSS.)" and the case of Howard v. Hatch are both over; ruled by the decision of the court of appeals in Tuthill v. Tracy, 31 N. Y. 157. Chalmers v. Wright, 5 Robt. 713, was a special-term case, and the remarks of Robertson, C. J., are obiter. There was no evidence offered except the affidavits of sale. Arthur v. George, 4 N. Y. S. C. R. 635, was a case where service of notice was made on "C. S., administrator, etc.," and on the trial plaintiff proved the mortgagor was dead, and letters of administration to C. S. The party simply proved that "C. S., administrator, etc.," was the personal representative of mortgagor, and the general term held the affidavits were sufficient, and this proof was immaterial. There was no attempt to supply a defect in the affidavits.

Ejectment can be maintained only on the title existing at the commencement of the action. Sacramento Savings Bank v. Hines, 50 Cal. 195; Wattson v. Thibou, 17 Abb. 184; Garrigue v. Loescher, 3 Bosw. 578; McCullough v. Colby, 4 Bosw. 603; Shinners v. Brill, 38 Wis. 648; McKay v. McKay, 25 U. C. Q. B. 133.

Where proof of a fact is required to be made in writing, parol evidence, though admitted without objection, is insufficient to establish the proposition. "A parol agree.

ment should not be received in evidence on the trial to

vary the terms of a written assignment, and if it be, it is not error in the judge to disregard such illegal evidence, without any subsequent order to expunge it, in his final ruling." Durgin v. Ireland, 14 N. Y. 322, 326-327; Bonesteel v. Flack, 41 Barb. 439, 440.

2. A statutory foreclosure must be in strict accordance with the statutory enactments. Such enactments must be strictly complied with, or no title passes. Layman v. Whiting, 20 Barb. 559; Campbell v. Swan, 48 Barb. 108;-so strictly that, where the statute authorizes the mortgagee to purchase the property at the sale thereof by auction, if the auctioneer act as his agent, and bid off the property in the name of the mortgagee, the sale is void because the position of auctioneer, and accepting his own bid as buyer, are inconsistent and incompatible, and such a sale is absolutely void. Campbell v. Swan, 48 Barb. 113, 114.

The sale must be in compliance with the statute, and if not, it is irregular. If irregular, it is void. Jackson v. Clark, 7 Johns. 218, 225, 226. If, under the circumstances of the case, the mortgagee can not comply with every requirement of the statute authorizing a foreclosure by advertisement, he can not so foreclose, and any attempted foreclosure will be void. He must resort to equity. Dutton v. Colton, 10 Ia. 408

3. A sale is void, if it is intentionally made or conducted in a manner to deceive or mislead either the mortgagor or his creditors. "Where the advertisement of sale of mortgaged premises, under a power, states a false assertion, as that the premises are to be sold for default of three mortgages, when there were only two-the third being on other land-by which the public might be misled, or purchasers deterred from bidding, the sale will be irregular and void." Burnett v. Dennison, 5 Johns. Ch. 35, 42; Jackson v. Clark, 7 Johns. 225, 226; Joyner v. Third, etc., 3 Cush. 567; Wells v. Burbank, 17 N. H. 412. It is undoubtedly true that a mere mistake in computing the amount due, trifling in its character and not calculated to inflict serions injury upon the mortgagor, or any mistake not calculated to misleadas giving correctly the place and date of recording, but mistakenly specifying the wrong book or page-would not render a statutory sale invalid, provided it be made within the power conferred by the mortgage; or, in other words, do not exceed the amount secured. The statute provides (2 R. S. 545, § 2, subd. 3; 2 Edm. St. 565), that "To entitle any party to give a notice, as hereinafter prescribed, and to make such foreclosure, it shall be requisite that such power of sale has been duly registered, or the mortgage contain ing the same has been duly recorded."

See

So long as the mortgagee does not foreclose for more than the amount secured by the mortgage, he does not exceed the "power," although he may err as to the amount. Jencks v. Alexander, 11 Paige, 619; Klock v. Cronhite, 1 Hill, 107; Bunce v. Reed, 16 Barb. 347; Butterfield v. Farnum, 19 Minn. 85; Menard v. Crowe, 20 Minn. 449. Mowry v. Sanborn, 62 Barb. 223. But the moment he attempts to foreclose for more than the mortgage secures, it is not then a question of mistake, but a clear want of power to do what he is doing, to wit: foreclosure for such amount. The particular foreclosure is not within the power conferred, and is void. McQuestin v. Swope, 12 Kas. 32. In Spencer v. Anon, 4 Minn. 543, the court said: "The record in this case discloses the following facts: The plaintiff held a note against the defendant for $920, dated July 22, 1857, payable six months from date. The amount named included the interest to maturity. The note was secured by a mortgage, containing an ordinary power of sale, on the real estate in controversy. On the fourth day of October, 1858, no part of the note having been paid, the plaintiff proceeded to foreclose the mortgage by advertisement under the statute. At the date of the first publication of the notice of sale, the note, with the interest added, amounted to $964.62 only; yet the notice stated the amount claimed to be due at $1,606.60, or about sixty-five per cent. more than the note called for. The notice was published at the requisite time, and at the time specified therein the property was sold for the sum of $1,386, the plaintiff himself becoming the purchaser, but without paying to the officer making the sale, or to the mortgagor, the overplus, after discharging the note and costs of sale. A sale made under such circumstances ought not to be sustained. When the holder of a mortgage, instead of proceeding to foreclosure by judicial proceedings, wherein all interested are necessary parties, and in which all questions may be regularly determined by a competent tribunal, resorts to the power contained in the mortgage, thus taking the remedy into his own hands, by an ex parte proceeding, it is but

reasonable that he should be kept strictly within the terms of the power, and held to a rigid observance of all the requirements of the statutes which regulate its exercise. The published notice that the property will be sold is all the notice that parties interested have of this proceeding, and this notice, the statute declares, must contain certain specifications, any one of which it would be fatal to omit. One of these specifications is, that the notice shall state the amount claimed to be due upon the mortgage at the date of the notice. We do not hold that it is absolutely necessary to state with certainty the exact amount legally due; for a party under a mistake of law or fact may honestly claim more than by law he would be entitled to; and if the other party is not shown to be prejudiced thereby, the sale should not be disturbed. The mortgagee may be ignorant of, or contest, certain alleged payments. He may estimate the amount according to the strict terms of the contract, or may err simply in a computation of the interest; and if, under such circumstances, he claims more than he could legally recover, it does not necessarily vitiate the sale. Perhaps any amount within the terms of the contract may, in good faith, be claimed without affecting the legality of the notice. But we do hold that a party can not arbitrarily or wantonly claim in his notice a sum which neither the terms of the contract nor any legitimate calculation based thereon will justify. An excess of trifling amount, arising from a mere error of computation, would not be deemed material; but we can not regard the present case as one of that kind; for here the sum claimed exceeds, by more than onehalf, the amount which any calculation based upon the note would produce; and whether this was done arbitrarily and wantonly, or through ignorance merely, it can not be excused. We think the notice given by the plaintiff was not in accordance with the statute, and that it tended to preju. dice the mortgagor, and to discourage competition at the sale. In stringent times, such as the people of this state have experienced for the last three years, real property, at a forced sale, seldom brings anything near its actual value. When the creditor enters the list as a bidder at a sale, he has an advantage over all others, inasmuch as he may bid to the extent of his claim without paying out any money except for costs, while others bid knowing that they must respond in money to the full extent of their bids, unless they can arrange as to the excess, after the claim is satisfied with the party entitled thereto. The greater the amount therefore, due the mortgagee, the greater the amount required of others to enable them to compete with him, and consequently the narrower the circle of bidders. If property worth a thousand dollars is offered at public sale to satisfy a mortgage of a hundred dollars only, I may arrange with the mortgagor, to whom the surplus is coming, so that I can bid, knowing that I have really but one hundred dollars, the amount of the claim, to pay at the time; and as soon as enough is bid to satisfy the mortgage, I am on equal terms with the mortgagee. But, if his mort. gage is five hundred dollars, I may be deterred from attempting to procure so large an amount, and no one, un able to pay at once a sum equal to that claimed to be due, will attempt to bid at the sale. To the extent, therefore, of the amount due on the mortgage, the mortgagee, it seems to me, has an advantage over all competitors, and if he may arbitrarily claim any sum he pleases, to be due, the advantage is still more apparent, especially if the sale made to him should be held valid without his paying over the excess."

This case was approved in Ramsey v. Merriam, 6 Minn. 168, where the court held a trifling excess would not vitiate the sale, but that the amount claimed must be "within the terms of the security." So, that the mortgage will be foreclosed "for the purpose of foreclosing the right in equity of the mortgagee," instead of the mortgagor, is fatal. It is liable to mislead, and the statute must be strictly complied with. In Abbott v. Banfield, 43 N. H. 152, 155-6, the court said: "It is suggested in argument that the error in the publication should not be regarded as material; but the general doctrine, both in legal and equitable proceed. ings, seems to be, where a statute directs the publication of notices having reference to personal rights or property, the requirements of the statute are to be strictly pursued. Nothing that can be reasonably made certain and definite is to be disregarded. So in relation to legal process, tax titles, laying out highways, etc. 6 Cushing, 256; 28 Miss. 354; Gray v. May, 16 Ohio, 66. The party may not have been misled by the notice as published; it is sufficient that it did not conform to what the statute did require, and that its tendency was to mislead the reader or him who was

directly interested to redeem the mortgage. The publication can not be, therefore, adjudged a sufficient compliance with the law in this case." See, also, People v. Becker, 20 N. Y. 354.

Both the mortgagee and the purchaser have the power before them, and are bound to know its extent, or when they lose jurisdiction. Although a party may not be subjected to loss on account of a mistake, yet where he does an unauthorized act, knowing what he does, but mistaking the law or legal effect thereof, he must abide the legal consequences of the act. Bank of Utica v. Wager, 2 Cow. 712, 769.

It would be a poor answer to say to the mortgagor that if too much is claimed, he may, by a suit in equity and an injunction, restrain the sale. The fact that equity will prevent injustice and stay the rapacity of the creditor gives him no statutory right to perpetrate and carry out such injustice. If more than the mortgage provides for be claimed, and the mortgage foreclosed therefor, the foreclosure is without jurisdiction, and must necessarily be void. A judgment for $4,800 by a court, with a jurisdiction limited to $3,000, would concededly be void. Why should not similar unofficial and irresponsible action by the party in interest be equally void? The sale is under and to carry out the power given by the mortgage. The power of sale is expressly required by the statute to be in writing, and to have been duly recorded" before the sale is attempted. 2 R. S. 545, § 2, subd. 3; 2 Edm. St. 565. If it be not, the sale is void. Wells v, Wells, 47 Barb. 416.

4. A material mistake in the notice or other proceedings would render a statutory foreclosure void. It is a question of power, and if the omission to affix the true notice was a mistake, it will not aid plaintiff. In the language of Judge Bronson, in Sharp v. Speir, 4 Hill, 88: "Honest error can not confer power." The intention of the mortgagee, however clearly expressed, without showing that he has performed the acts necessary to that purpose, will be ineffectual to establish a foreclosure." Morris v. Day, 37 Maine, 386, 388; Freeman v. Attwood, 53 Maine, 473, 474-5.

There being no sufficient affidavit of service of notice of sale on the mortgagors, and no affixing in the book kept by the clerk, etc., of a copy of the notice of sale, the sale was not conducted as prescribed by the statute. The affixing the notice in the book kept by the county clerk is one of the modes provided by law for giving notice of sale. The remarks of Justice Gridley in Van Slyke v. Sheldon, 9 Barb. 284, 285 and 286, on the effect of an omission to serve a notice on the mortgagor, are directly applicable to the omission to affix notice. In that case (page 286), the court say: "Again, the 8th section of the Revised Statutes, which declares the effect of a sale upon advertisement, is amended by the act of 1844 (1857), so as to make the sale a bar only on condition that a notice has been served on the parties (affixed in the book, etc.), pursuant to the new requirements of that act."

The publication, posting, serving and affixing notices, are all conditions precedent to a sale on foreclosure. If one can be omitted, all can be. The statute is mandatory, not directory. Hall v. Hill, 22 U. C. Q. B. 578 affirmed; 2 Errors and Appeals, 569; Hazlett v. Hall, 24 U. C. Q. B. 484. In Ely v. Carnley, 19 N. Y. 496, the court of appeals held, that "a clerical error in the copy of a chattel mortgage, and the accompanying statement of the amount claimed, by which such amount is overstated $100, is fatal, and its validity against creditors ceases with the year after filing an accurate copy." In that case it was a mere mistake of the copyist, and no fraud was intended or charged; yet the court refused to disregard the variance.

BOOK NOTICES.

REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE TERRITORY OF UTAH, from the organization of the Territory up to, and including the June Term, 1876. ALBERT HAGAN, Reporter. Volume 1. San Francisco: A. L. Bancroft & Co. 1877. This is a small volume of less than four hundred pages, containing about seventy-five decisions of the Supreme Court of Utah, from 1850 to 1876. The judges of this court are at present, Hon. Michael Schaeffer, Chief Justice, and Hons. P. H. Emerson and J. S. Boreman, Associate Justices. The opinions here reported are

for the most part of little importance to the profession outside of the territory. At page 344, we find the decision of this court, in the case of Wiggins v. The People, on the question of the admission of evidence of uncommunicated threats in a trial for homicide. The judgment of the court here was reversed in the Supreme Court of the United States, reported 4 Cent. L. J. 345.

CORRESPONDENCE.

PROCTOR V. HANNIBAL AND ST. JO. R. R. To the Editor of the Central Law Journal:

There is no fairer field for criticism than the judicial construction of statutes. When the wisest judges under the sun undertake soberly to tell what a body of legislators mean by the language of a legislative act, and in reaching a conclusion, there is the slightest variation or departure from the known and accepted meaning of English words, "the door is open, and any one may walk in." Especially is that so when the doctors disagree with each other, and more especially when some of them disagree with themselves.

The decision of the above entitled case in 4 Cent. L. J. 299, overruling the case of Schultz v. Pacific R. R., will be hailed with delight by all the railroad lawyers in the State of Missouri, and with disgust by all the damage lawyers. Many of the latter who have undertaken to prosecute suits, upon the faith of the overruled case, and have made a contract to accept a fee, contingent upon success, may regard the change as one calculated to impair the obligation of contracts."

In delivering the opinion of the court in this case, his honor prefaced that portion which has direct reference to the statute to be construed, by a statement of the common law rule upon the subject. This rule of exemption of the master from liability to a servant for the consequences of the negligent acts of fellowservants, has become so well established by repeated decisions that no one would now presume to question its existence, whatever they might think of its justice in the abstract. The following is a portion of the opinion of Chief Justice Shaw, delivered in Farwell v. B. & W.R. R.Co., 4 Metc. 491, quoted in the opinion delivered in the Proctor case, as an argument in support of the rule: "Where several persons are employed in the conduct of one commission, enterprise, or undertaking, and the safety of each depends much on the skill with which each shall perform his appropriate duty, each, as the observer of the conduct of the other, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common carrier will not take such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than can be done by a resort to the common employers for indemnity, in case of loss by the negligence of the others." I am frank to say that in my humble opinion, a rule founded solely upon upon such flimsy logic as the above would not be entitled to a great deal of respect. Say nothing about the rule, and endeavor to apply the reasons given to some of the commonest instances of hazardous employment, outside of railroading. Take, as an example, the relations and duties subsisting between the different members of the crew of a steamboat. The captain, the clerk, the pilot, the engineer, the strikers, the mates, the cook, the steward, the cabin boys, the chambermaid, the deck-hands, the roustabouts, are all "employed in the conduct of one commission, enterprise, or undertaking, and the safety of each depends much upon the skill with which each shall perform his appropriate duty." Now, imagine one of the rousta

bouts, the cabin boys, the deck-hands, or the chambermaid, observing the negligence or incapacity of the captain, the pilot, or the engineer, and giving notice to the owners of any misconduct. To decide a case upon the theory that one of these subordinate river navigators had the most rudimentary knowledge of the duties of his superiors, would be to give judicial imagination the wings of the wild goose. Neither Chief Justice Shaw nor any of the supreme judges of Missouri would ever give this reasoning such an application. But Chief Justice Shaw, in another portion of the opinion in Farwell's case, says, by way of a hint, as to what is "one commission, enterprise, or undertaking," that "when the object to be accomplished is one and the same, irhen the employers are the same, and the several persons derive their authority and their compensation from the same source, it would be extremely difficult to determine what constitutes one department, and what a distinct department of duty." The whole question of fellow-service, or common employment, is made to rest upon the fact that the same master employs and pays the servants in conducting the same general business or enterprise-this makes them fellow-servants. Now, the alleged reason of this rule can be carried a little further into the ethereal realms of absurdity. Suppose the common master to be the owner of a line of steamers, navigating the same stream. The roustabout, the deck-hand, the porter, the cabin boy, or the chambermaid, are all supposed to be intelligent observers, not only of the captain, the pilot, the engineer, the strikers, the mates and the firemen, on the boat upon which he or she is engaged, but they are all supposed to be equally well informed in regard to the same officers on all boats of the line. Through the carelessness, negligence, or incompetency of one or another of the important officers of any one of the master's steamers, either one or all of these subordinates may be injured or killed. In case of collision between two vessels of the same line, where the officers and servants upon each were engaged in the service of a common master, it would be a waste of time for the sufferers of the crew or their representatives to inquire as to where the fault lay, with a view to ascertaining the right of recovery, unless the victim is prepared to prove negligence in the employment of incompetent servants. Understand, I am not combating the application of this universally acknowledged rule to a proper case. It is the reason assigned for the rule that I am after. No position is strengthened, it is rather weakened, by weak argument. And the weakness of the argument is so clearly recognized by Chief Justice Shaw, that in another part of the same opinion he abandons it in the following language: "The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract does not extend to indemnifying the servant against the negligence of any one but himself."

In the case of Farwell v. B. & W. R. R. Co., the plaintiff was an engineer in the employ of defendant, and the negligent act alleged was committed by a switch-tender, known to be sober and competent, and for a long time previously in the employ of the same company. There was but this single act of neglect or carelessness alleged against him. The case was one of first impression in Massachusetts, and the learned judge in conclusion, after calling attention to the noveity of the question, uses the following cautionary language: "We would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle."

In the Proctor case the servant who was injured was

the engineer in charge of one locomotive going in one direction, while the act of negligence was that of the servants of defendant in charge of an entirely independent locomotive and train going in an opposite direction. Their duties were separate and distinct; nor were they in any stricter sense employed in the conduct of one commission, enterprise, or undertaking, than would be two pilots or engineers of separate vessels, belonging to the same owner, and navigating the same stream. If for the commission, enterprise, or undertaking, we are to look to the ultimate end the employer has in view when he employs them, the common service would include every one whose services were conducive to the accumulation of wealth by the master in the business in which they are engaged. An agent employed to negotiate the bonds of the company, or attend the legislature as a lobbyist in its interest, would be as much the fellow of the engineer, as the fireman who assisted in manipulating his engine. But if the reason assigned for the rule quoted above is to have any influence in shaping the decision of the court, it would seem proper to confine its application to instances where the fellow-servants or co-employees, in the case of a steamboat, were engaged in the navigation of the same vessel, upon the same voyage; and, by a parity of reasoning, in the case of a railroad, the running, conducting, or managing of the same train. Each trip should be viewed in the light of an independent voyage, where the different members of the crew are involved in a common danger, and mutually dependent upon each other's skill.

Suppose, as is frequently the case, two or more railroad companies were running their locomotives and cars over the same track, and, through the negligence of the servants of one of the companies, one of its trains should collide with a train belonging to the other company, and injury should result to the servants of the company who were not in the wrong. The opportunities of the sufferers to observe and judge of the competency of negligent servants would be as good as though they were employed by a common master, and if they judged it prudent, they would have the same opportunities to quit the employment of their own master, to avoid the risks incident to the negligence or incompetency of the servants of the joint occupier of the road. But for all this, the company employing the negligent servants, whose fault occasioned the injury, would not be exempt from liability. It would seem to be a better and more sensible way to dispose of this rule, to go back to first principles, and say that when a common carrier, or any one else, does the best he can in the employment of necessary servants and agents to conduct a business, and is not guilty of personal negligence, that he is not to blame for the occasional negligent acts of his servants to any person; that, in order to insure a proper degree of care on the part of both master and servants, the master is held liable to strangers for the conduct of his servants, in the course of their employment; but that the interests of society in general, and a proper regard for the interests of the masters, whose capital is embarked in dangerous enterprises, did not demand an extension of the artificial rule, for the benefit of the servants so employed, who were supposed to enter the service for wages proportioned to the risk. It would be better to give even no reason at all, than a poor one.

In construing the second section of the damage act, the learned judge frankly admits at the outset, that, literally interpreted, the words, "any person," would include servants and employees of the company, as well as passengers. From beginning to end, this section is one long-winded sentence, so repetitious that the mind of the reader is confused at about every fifth line. There are several things, however, obvious: 1. A railroad

employer is a person, and so is a passenger. 2. The section has several clauses, the first of which applies to persons, and the second is restricted to passengers. 3. The first clause speaks only of acts of "negligence, unskillfulness or criminal intent, of officers, agents, servants or employees, while running, conducting or managing any locomotive," etc.; while the second clause has reference solely to defective tracks, machinery or vehicles. 4. The first clause fixes the liability upon employers, while the second fixes it upon owners. 5. In conclusion, the section gives the right of action, under either clause, to certain designated representatives of "every person or passenger." 6. The damages are liquidated.

One of the most prominent grounds for rejecting the apparent meaning of the words of the statute, is that it would involve an inconsistency with the common law, or with some other statutory provision. If such a course of construction be adopted, we might as well abandon legislation altogether. Another reason assigned, is that it is evident that it was not in the legislative mind to alter the common-law relations of master and servant, but simply to transmit to representatives the right of action in case of death, which the injured person would have have had, had he survived. If anything is evident from the language of the statute, it is that the legislature had several objects in view, else why all these distinctions? If they simply desired to transmit to representatives a right of action which would have existed in the decedent, had he survived the injury, why did they not say so, and drop the matter? The third section of the act would have accomplished that result. They intended something more, or they would not have designated with particularity the different kind of injuries for which different parties were to be held liable; they would not have made the useless distinction between passengers and persons; they would not have drawn a line between injuries from the negligence or criminal intent of agents, etc., and from defective track, machinery, etc.; they would not have designated the order in which the representatives would be entitled to sue; they would not have liquidated the damages. If it did not create a new right of action, then, in case the person was instantly killed, his representatives could not maintain an action against the company, for at common law the dead man could not have sued. In the minority opinion in Connor v. C., R. I. & P. R. R. Co., 59 Mo. 285, which is cited with approval in this case, one of the rules of construction invoked is that it must be presumed that the legislators understood the common law rule as to the subject upon which they were legislating. There could be no question of the propriety of an appeal to the common law, for the purpose of construing language ambiguous or doubtful in its import; but it is hardly fair to make use of so violent a presumption in order to change the obvious meaning of terms employed in the written law, and to make the meaning of the legislation harmonize with the law as it should be.

Another objection offered to the plain construction of the statute, is that it discriminates in favor of the representatives of the injured servant who dies, and against the servant himself,-because it gives a right of action to the former for the killing which the latter would not have at common law for the same injuries, if he lived. This, it is said, would be wrong and unjust, and, as the law-makers were presumed to know that such would be the effect of their action, they could not be supposed to intend any such unjust result. Admitting under protest the legislators' presumed knowledge of the common law, we see nothing so absurd or unreasonable in supposing that they might seek to provide a remedy for certain dependent

relatives of a person, and omit to provide a similar remedy for him while he lived. It seems quite evident from this case, and the first minority opinion in the Connor case, that the judicial mind is shocked at the idea of a man's life being of greater value to his wife or child than his limbs are to himself. The writer of this has been where the living fragments of what had been vigorous and stalwart men were nursed with the tenderest care, and watched with the most anxious solicitude by wives, children and parents, and has noted the tenacity with which these maimed ones clung to the spark of life. The loss of legs and arms was almost disregarded, in view of the fact that life was spared. Might not the legislature be such a body of old fogies as to look upon the life of a husband, son, or father, as something so valuable as to be the object of special compensation, while they overlooked, or failed to provide for, the loss of legs and arms? Might they not have legislated, to some extent, oblivious of the fact that persons injured by railroad and other casualties," may suffer, for an indefinite period of time, the tortures of the damned?"

As to the objection that the plain construction might subject the defendant to "two actions by different parties for the same money," I would simply acknowledge being unable to see how the construction put upon the words "any person" would make any difference in the number of actions to be brought "for the same money." Suppose the "person" is a passenger. If he is injured, and survives for a year, and then dies from his injuries, would his case be any the less complicated than that of an engineer or fireman under similar circumstances? It cannot be denied that the words "any person" would include passengers, and that a passenger may maintain an action against the corporation for injuries resulting from the negligence of its employees. Suppose the passenger brings his action and recovers, and then dies after the expiration of one year, could his representatives maintain an action for his death, and, if so, would this not be "holding the party liable in two actions to two different parties for the same money," to the same extent as it would had the action been brought by an employee, and subsequently by his representatives? ST. LOUIS, April 2, 1877.

RECENT LEGISLATION.

W. P. W.

MISSOURI LEGISLATURE-SESSION OF 1877.

AN ACT to amend chapter 201 of the general statutes of Missouri, entitled "Of offenses against public and private property," by adding a new section thereto, to be known as section 69, the same being article 3 of chapter 42 of Wagner's Missouri statutes.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Chapter 201 of the general statutes, the same being article of chapter 42 of Wagner's Missouri statutes, is hereby amended by the addition of a new section thereto, to be known as section 69: Sec. 69. Every person who shall agree or promise, or who shall advertise through the public press, or by letter, to furnish employment or situations to any person or persons, and in pursuance of such advertisement, agreement, or promise, shall receive any money, personal property, or other valuable thing whatsoever, and who shall fail to procure for such person or persons acceptable situations or employment within the time stated, or, if no time be specified, then within a reasonable time thereafter, and who shall fail or refuse to return the money, personal property, or other valu

able thing so obtained, when the same shall have been demanded by such person or persons, shall be guilty of a misdemeanor, and, on conviction thereof, be punished by a fine not less than forty dollars, nor more than five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.

Approved March 20th, 1877.

AN ACT to amend an act entitled "An act to regulate the inspection of petroleum oils or fluids, or any product thereof sold or manufactured for illuminating purposes," approved March 24, 1870.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. That section 2 of an act entitled "An act to regulate the inspection of petroleum oils or fluids, or any product thereof sold or manufactured for illuminating purposes," approved March 24, 1870, be amended by striking out the words "one hundred and ten," in said section, and inserting in lieu thereof "one hundred and fifty," so that said section, when so amended, shall read as follows: Sec. 2. It shall be the duty of the inspector, when called upon for that purpose by the owner, manufacturer, or dealer of any of said illuminating oils or fluids, promptly to inspect or test and gauge the same within the city or town for which he is appointed. The inspector shall in all cases take the oil or fluid for test from the package which is intended to be branded, and in no case shall he mark or brand any package before having first inspected or tested the contents thereof; and the quantity used for testing the fire test of such illuminating oil or fluid shall not be less than half a pint, and shall be ascertained by applying thereto a well-lighted match; and all such illuminating oils or fluids that will ignite or burn at a less temperature than 150 degrees Fahrenheit he shall brand " ," and all that will stand the fire test rejected," of 150 degrees Fahrenheit he shall brand "approved standard fluid."

SEC. 2. All acts or parts of acts inconsistent with this act are hereby repealed.

Approved March 20th, 1877.

AN ACT to amend an act entitled an "Act to amend section 56 of an act entitled "An act dividing the state into judicial circuits, prescribing the times of holding courts therein, and providing for the election of five additional circuit court judges and circuit attorneys," approved March 15, 1872, being section 60 of article 3, chapter 41 of Wagner's Missouri Statutes, entitled 'Of circuit courts'; and for the continuing in force executions, orders of sale, and all writs and process of the Circuit Court of Stoddard County, and making them returnable in conformity with this act," approved February 10th,

1875.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1. Section 1 of the above recited act is hereby amended to read as follows: Sec. 1. That section 56 of an act entitled "An Act dividing the state into judicial circuits, prescribing the times of holding courts therein, and providing for the election of five additional Circuit Court judges and circuit attorneys," approved March 15, 1872, is hereby amended so as to read as follows: Sec. 56. In the twenty-third judicial circuit, in the County of Stoddard, on the first Mondays in March and September; in the County of Wayne, on the first Mondays in April and October; in the County of Carter, on the third Mondays in April and October; in the County of Ripley, on the fourth Mondays in April and October; in the County of Butler, on the first Mondays in May and November; and in the County of Dunklin, on the third Mondays in May and November.

SEC. 2. Section 2 of said act is hereby amended to