Central Law Journal. ST. LOUIS, MO., MARCH 11, 1898. In an issue of the CENTRAL LAW JOURNAL some years ago appeared an interesting article on the subject of the admissibility of evidence illegally obtained, in which the writer attempted to show that upon principle such evidence is not admissible,-42 Cent. L. J. 392. A recent Georgia case reaches a different conclusion,-Williams v. State. It is therein held that there was no error, on the trial of a criminal case, in admitting against the accused evidence showing that she had upon her person and about her premises articles, the possession of which, though not in itself criminal, tended to establish her guilt of the offense with which she was charged, notwithstanding it appeared that the discovery of these articles was made by forcibly entering into her house, and there searching the same and her person, without any warrant or authority of law. Although the search and seizure may have been unlawful, unwarranted, unreasonable and reprehensible, this did not affect the admissibility of the evidence obtained as a result thereof. The court goes into the subject exhaustively, and shows that upon authority, at least, its conclusion justified. That evidence pertinent and material to the issue is admissible, notwithstanding it may have been illegally procured by the party producing it, was early settled by the English courts. The case of Legatt v. Tollervey, 14 East, 302, to this effect, decided in 1811, followed a previous ruling made in Jorden v. Lewis (1739), the substance of which is stated in a note, as the report of the latter case in 2 Strange, 1122, was meager and imperfect. And such was the rule observed in subsequent decisions. Caddy v. Barlow, 1 Man. & R. 275; Stockfleth v. De Tastet, 4 Camp. 10; Robson v. Alexander, 1 Moore & P. 448. In this country the question certainly arose as early as 1841. Com. V. Dana, 2 Metc. (Mass.) 329. There it was held, sustaining the English cases, that when papers are offered in evidence the court takes no notice how they were obtained is whether lawfully or unlawfully. Such has been the view since entertained and consistently adhered to by the Massachusetts court and followed by numerous other courts. The correctness of this view has been generally acquiesced in. In more recent years a few attempts have been made in this country to overturn this now well established rule of evidence. They have, however, met with anything but success. In Illinois, South Carolina, Alabama, Missouri, Connecticut and Arkansas the courts of last resort have declined to venture a departure from this doctrine. Gindrat v. People, 138 Ill. 103; Subert v. People, 143 Ill. 571; State v. Atkinson, 40 S. C. 363; Shields v. State, 104 Ala. 35; State v. Pomeroy, 130 Mo. 489; State v. Griswold, 67 Conn. 290; Starchman v. State, 36 S. W. Rep. 940. Counsel for the accused cited and relied upon the case of Boyd v. U. S., 116 U. S. 616, as sustaining the contention that the constitutional rights of the accused were infringed by admitting the evidence to which objection was made. The Georgia court did not think the decision rendered in that case as authority supporting this contention. A clear statement of the issues raised in it, and of the precise question passed on by the federal supreme court, is to be found in Gindrat v. People, supra, the able opinion in which, pronounced by Mr. Justice Baker, of the Illinois supreme bench, shows most conclusively that, so far as the question before the Georgia court is concerned, the decision in Boyd's case is not to be regarded as authoritative, or even pertinent. The Supreme Court of Missouri, also, in State v. Pomeroy, supra, pointed out that the Boyd case was not an authority on this question. "Irrespective of the many respectable authorities above referred to, and speaking for ourselves," says the Georgia court, "we are satisfied that the contention of the accused, that her constitutional rights were infringed by the ruling of the trial judge admitting the evidence complained of, ought not to be sustained. As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place a salutary restriction upon the powers of government. That is to say, we believe the framers of the constitutions of the United States and of this and ATTORNEY AND CLIENT-CONTRACT FOR FEES -PERSONAL SERVICES. The United States Circuit Court of Appeals for the Eighth Circuit decides in Baxter v. Billings that when one agrees to pay a certain compensation for the services in a specified matter of two attorneys named, that contract is not performed, and that compensation cannot be recovered, when one of them dies before the agreement is substantially performed. The contract is one of personal trust and confidence, and its terms are not fulfilled though the surviving attorney associates with himself others of equal or greater ability, and carries the litigation to a successful conclusion. Judge Sanborn says: A contract for the professional services of particular attorney is an agreement of personal other States merely sought to provide against NOTES OF IMPORTANT DECISIONS. any attempt, by legislation or otherwise, to authorize, justify, or declare lawful, any unreasonable search or seizure. This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition, surely none of the three divisions of government is responsible. If an official, or a mere petty agent of the State, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting, not for the State, but for himself only; and therefore he alone, and not the State, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of government can do is to afford the citizen such redress as is possible, and bring the wrongdoer to account for his unlawful conduct. The office of the federal and State constitutions is simply to create and declare these rights. To the legislative branch of government is confided the power, and upon that branch alone devolves the duty, of framing such remedial laws as are best calculated to protect the citizen in the enjoyment of such rights, and as will render the same a real, and not an empty, blessing. With faithfully enforcing such laws as are thus provided, the responsibility devolving upon the executive and judicial branches must necessarily end. We know of no law in Georgia which renders inadmissible in evidence the fruits of an illegal and wrongful search and seizure, nor are we aware of any statute from which it could be logically gathered that the admission of such evidence violates any recognized principle of publicity, and experience of two particular attorneys is policy." trust and confidence. Its chief consideration is not performed by furnishing the services of one of them, although the services of many others of equal or superior ability are also furnished. When one agrees to pay a certain compensation for the services in a specified matter of two or more st. torneys or agents whom he select or names, that contract is not performed, and that compensation cannot be recovered, when any one of them dies, or abandons the agreement, before it is substantially performed, because the services of that one have not been furnished. McGill's Creditors v. McGill's Admr., 2 Metc. (Ky.) 258, 260; Morgan v. Roberts, 38 Ill. 65, 85; Moshier v. Kitchell, 87 Ill. 18, 21; Wright v. McCampbell, 75 Tex. 644, 648, 13 S. W. Rep. 293; Martine v. Society, 53 N. Y. 339, 342; Salisbury v. Brisbane, 61 N. Y. 617; Insurance Co. v. Wilcox, 57 Ill. 180, 186. CRIMINAL LAW LARCENY WILD BEESPROPERTY RIGHTS.-It is decided by the Supreme Court of Iowa, in State v. Repp, that such property rights in wild bees in the woods as there are, are in the owner of the woods; so that one cannot be convicted under an indictment charging him with larceny of a swarm of bees, the property of S, where S, without right, took them from a tree on the land of C, and left them there, in a hive not belonging to him, which defendant then took away. The court says: Wild game is under the control of the State, and only becomes the subject of private ownership when reclaimed by the art and industry of man. A somewhat different rule applies to bees, though feræ nuturæ. These have a local habitation. Blackstone states: "It hath also been said that with us the only ownership in bees is ratione soli; and the charter of the forest, which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found." The same rule is laid down in Cooley, Torts, 435, where it is said that bees "have a local habitation, more often in a tree than elsewhere, and while there may be said to be within control, because the tree may at any time be felled. But the right to cut it is in the owner of the soil, and therefore such property as the wild bees are susceptible of is in him also." And it has been so adjudged in Ferguson v. Miller, 13 Am. Dec. 519, and Rexroth v. Coon (R. I.), 23 Atl. Rep. 37. By the law of nature, the person who hived the swarm would be entitled to it; but, under the regulation of property rights since the institution of civil society, the forest, as well as the cultivated field, belongs to the owner thereof, and he who invades it is a trespasser. Goff v. Kilts, 15 Wend. 550. See Adams v. Burton, 43 Vt. 36. The mere finding of bees on the land of Cody gave Stevens no right to them, or to the tree. Merrills v. Goodwin, 1 Root, 209; Gillet v. Mason, 7 Johns. 16. In cutting down the tree and taking the bees, he was a wrongdoer. Had he acted with the license of Cody, he might have acquired ownership, but he could obtain no title by his wrongful acts as a mere trespasser. Rexroth v. Coon, supra. In that case the plaintiff had placed a box in the crotch of the tree belonging to Green, without permission, and later the defendant, without the consent of either, took the box from the tree, emptied it of bees and honey, and then replaced it. In holding that the plaintiff was not entitled to recover, the court said: "The plaintiff was a trespasser upon the land of Green. He had no right to place the box or hive in the tree, and by placing it there he acquired no title to the bees which subsequently occupied it, or to the honey which they produced." No better title would be acquired by removing the bees from the tree top to a box on the land, than by luring them to a box placed in a tree top. Title to a thing feræ naturæ cannot be created by the act of one who at the moment is a trespasser, and Stevens obtained no interest in the bees by the mere wrongful transfer from the tree to the gum. He neither owned the land on which he left them, nor the gum in which they were hived. Having neither title nor possession, he had no interest therein, the subject of larceny. WILL-CONSTRUCTION-DEVISE PER CAPITA. -In Ridley v. McPherson, 43 S. W. Rep. 772, decided by the Supreme Court of Tennessee, it appeared that a deed gave certain lands to grantee to hold in trust for the grantor's daughter, Mary E., during life, and provided that on her death "the lands shall be conveyed by the trustees to the issue of said Mary E. living at her death, and, in default of any such issue living at the death of said Mary E., then upon this further trust: that said land be forthwith conveyed to the grantor, if living, and, if dead, to his right heirs at that time." It was held when the said Mary E. left surviving one daughter, and her eight children, and two children of a son who died before his mother, that the gift to such issue is not substitutional, but they must take per capita, so that each is entitled to one-eleventh of the estate. The court said in part: It is conceded that the precise question involved has not been determined in Tennessee, and that in other jurisdictions the decisions are numerous, and in some conflict. The various views held by different courts may be found commented upon in 2 Redf. Wills, pp. 355379, and notes, and 11 Am. & Eng. Enc. Law, 869 et seq., 879, note, and need not be further set out here. The difficulty lies in defining the word "issue," and in determining the probable meaning which the grantor intended to give it; and the confusion arises from the effort, on the one hand, to carry out the supposed intention of the testator, and, on the other, to give to the word its strict legal signification. Mr. Bouvier says the word "issue" includes all persons who have descended from a common ancestor. It has also been said that, unless controlled by the context, it means lineal descendants, without regard to degree of proximity or remoteness from the original stock or source. 11 Am. & Eng. Enc. Law (1st Ed.) 899, and notes; Jackson v. Jackson (Mass.), 11 Lawy. Rep. Ann. 305, and notes (26 N. E. Rep. 1112); Pearce v. Rickard (R. I.), 26 Atl. Rep. 38. When the word appears in a will, prima facie, it is intended as a word of limitation, but may, by the context, be shown to be a word of purchase. 11 Am. & Eng. Enc. Law, 877. In deeds and marriage settlements, it is always treated as a word of purchase. 11 Am. & Eng. Enc. Law, 876. In this case it is not insisted by either party that it is a word of limitation, but that it is used as a word of purchase; and it is so treated by the court of chancery appeals. Mr. Redfield, in his work on Wills (volume 2, p. 363), says, in substance, that the real intention of the grantor in using the word should be ascertained and followed; and he is of opinion that not one grantor in a thousand would suppose that by using such a word he would be dividing up his estate among all his descendants who might be living at the time of distribution, in such manner as to permit two or three generation-parents and their children and grandchildren to share concurrently and per capita, equally, as between themselves. It was his opinion that most testators employ the term in the sense of descending heirs, and that it is most consistent with the testator's intention to hold that the children alive at the time of distribution are intended to take equally, to the exclusion of more remote descendants, unless the latter are issue of a deceased child, in which case they should take the child's share, as representing their parent. Following on the same line, while recognizing the rule as established differently, Lord Lougborough, in Freeman v. Parsley, 3 Ves. 42, expressed regret that there was no medium between the rule of total exclusion of grandchildren, and allowing them to share equally with their parent. See, also, 4 Kent, Comm. *278, note b. These holdings, clearly, are based upon an attempt to follow a supposed intention of the testator to keep the several branches of his descendants equal, rather than upon the strict meaning of the term used. While it is true that the intention should be sought for and followed, it can only be found in the instrument itself. The court of chancery appeals very pertinently say that if John and Samuel McPherson, the grandchildren of the life tenant, are embraced in the term "issue," there can be no good reason why the eight children of Mrs. Ridley, who are such grandchildren, should not be likewise included in the term, as they stand in the same relation and degree to the grantor, nor why Mrs. Ridley is not also embraced, as she stands one degree nearer the grantor than the great-grandchildren do. Hence it properly concludes that Mrs. Ridley and the McPherson children do not take, equally, onethird. The court of chancery appeals is, however, of opinion that following the suggestions of Mr. Redfield and Lord Lougborough, it is the better ruling to hold that it was the intention of the testator to give to the word "issue" the same meaning as is given under one statute to the words "heirs of the body," thus making it a word of purchase, but at the same time to hold that the remainder-men should take as if the life tenant had been seised of the entire estate, and it had passed according to the rules of descent, thus keeping up equality in the different branches of the family. The court of chancery appeals says, in conclusion, that it cannot state that such holding is sustained by a majority of the cases of even current authority in the United States, but it seems to be the just rule, in accord with the policy of our laws regulating descents, and more apparently within the intent of the grantor. We can see no reason why the word "issue," as used in this paper (which, though a deed, is, in a certain sense, testamentary in its character and operation), should not receive its strict technical, legal signification. The deed was executed May 27, 1860, and is witnessed by John Marshall and W. G. Marshall, the former one of the most distinguished jurists Tennessee has ever produced, and, it is stated at the bar, was written by him. It bears upon its face, and in its provisions, evidence of legal knowledge, and the technical use of legal terms, by the draftsman. If it was not intended that the word should have its legal signification, it is difficult to see why it was used, and why, if such was the grantor's intention, the remainder was not given to the children of Mary E. who might be living at her death, and the living descendants of those who might have previously died. Such language would clearly have called for the construction which the court of chancery appeals has given. We can see no ground for presuming an intention upon the part of the grantor to keep the several branches of his remote descendants separate, and to bestow his bounty upon them per stirpes, instead of per capita, where he uses a term which embraces all his descendants equally. There is absolutely nothing in the context of this instrument to show that the word "issue" was intended to have any other than its proper, legal signification. If there were such indications in the context, they would furnish a good ground for giving the word a different meaning. 11 Am. & Eng. Enc. Law, 872, note 1. But in the absence of such indication the word must receive its proper meaning. The case of Pearce v. Rickard (R. I.), 26 Atl. Rep. 38, is directly in point, and thoroughly considered. In that case the will in controversy provided that on the death of the life tenant, Sarah C. Rickard, the trustee Pearce "should pay over the trust property to her lawful issue then alive." It was held (citing and commenting on very many authorities) that the word "issue," unrestricted by any indication of contrary intention, includes all descendants, and that grandchildren take equally with children, per capita, when there is nothing to indicate that a representative or substitutional taking was intended. It was strongly insisted in that case that the word "issue" should be held to have the ordinary signification of "children,” and not a technical one, of descendants generally; but it was shown that such construction was against the overwhelming weight of authority in England and the United States, in the absence of any stat utory provision, or any evidence of intention to be gathered from the instrument. See the same case reported in 49 Am. St. Rep. 755. See, also, Hartwell v. Tefft (R. I.), 35 Atl. Rep. 882; Soper v. Brown (N. Y. App.), 32 N. E. Rep. 768. TITLE NOTES. Such This class of paper is generally in the form of promissory notes, containing conditions, providing that the title and ownership of personal property, for which the note is given, shall not pass from the payee till the notes are fully paid. paper is the outgrowth of the law of conditional sales which the common law has long recognized with such favor that its use has become more and more general. Under the rules of the common law, personal property sold upon condition, reserving title in the vendor till the price was fully paid, remained the property of the vendor until all conditions were performed; and before the recording acts such transactions in many of the States were good, not only between the parties, but as to bona fide purchasers and creditors for value and without notice.1 That such a rule may work a hardship is apparent, and on account of the severity of the rule, and the secrecy of the transaction, nearly all the States have provided for the recording of such contracts, thus freeing them of their most unwholesome features. It is not the object of the writer to discuss the law of conditional sales, except so far as relates to this particular class of paper which is in form of promissory notes. Negotiability. It is clear, both upon principle and authority, that this class of notes does not possess the character of commercial paper, although in form of negotiable promissory notes they are not negotiable. The Supreme Court of Minnesota, in the case of Third National Bank of Syracuse v. Armstrong, where the question was raised directly, Cornell, J., said: "In determining the character and legal effect of such a promise, regard must be had to the whole instrument and all its provisions, and not to the fact alone that the promise was put in the form of a negotiable promissory note, payable to order and was designated as a note in the instrument." The same doctrine is laid down 1 Benj. on Sales, 283. 2 25 Minn. 530. 3 by the Supreme Court of Kansas, Justice Brewer observing that, "It is essential to the negotiability of paper that there is in it, but the single promise to pay the money." In each of the cases last cited the point was raised directly, and each of them hold such notes to be non-negotiable. This difference in the facts may, however, be noticed, that in the case before the Minnesota court the note provided for the retaking of the property before maturity, in case the payees deem themselves insecure, even before the maturity of the note; while in the case before the Kansas court, the note provided for the retaking only upon default of payment at maturity. This point does not appear to have been noticed by either of the courts, nor could it have changed the result if it had been. Mr. Brewer concludes by saying that, "we conclude, then, that whenever any stipulation concerning other matters than the payment of money is incorporated in one instrument with a promise to pay money, such double contract will not be adjudged a negotiable paper." That such notes are not negotiable is the law in this country, but perhaps otherwise in Canada, whereupon the theory that the agreement to pay money and the one reserving title in the payee, are treated as separate and distinct contracts. Failure of Consideration.-When the defense of failure of consideration may be properly set up in an action on such notes is not so clear, either upon principal or authority. The rule can be more definitely determined by examining some of the later decisions upon the subject. In the case of J. M. Arthur & Co. v. Blackman," in an action founded upon a promissory note and contract, after the condition reserving the title in payee of the note, was the following condition: That upon return of the property to plaintiff that such return should not extinguish or alter the liability of defendant to pay the interest and principal thereof. The property was destroyed by fire without the fault of the defendants, while in their possession before the notes were paid. It was contended upon the part of plaintiff that the defendants had the use and beneficial possession of machinery till it was destroyed, which was a sufficient consideration. The court held, "that if such 3 Killam v. Schoeps, 26 Kan. 310. 49 Manitoba Rep. 623. 563 Fed. Rep. 536. |