dered his will to the control of such influences rather than to the exercise of sound judgment it will be your duty to consider the fact of his belief in spiritualism generally or in particular appearances, which he may believe to constitute manifestations from departed spirits, not as the basis of a finding that his beliefs in these respects are delusions, but as an introduction and aid to the precise inquiry whether or not he has become subject to a secondary belief not included in the general creed to which he adheres, and whether such belief, if you find it, is separable from his religious faith. It may be repeated that mere belief in a religion cannot be regarded as a delusion. But if a person holding a creed or faith deduces therefrom a personal belief, which he applies to his own affairs and adopts for the regulation of his conduct, this derivative belief, however dependent in its origin upon his general religious faith, may be entirely separable therefrom and may in connection with the facts and circumstances which surround and characterize it be the subject of judicial investigation as to whether it is a delusion. If the person who has adopted this corollary to his general faith has thereby become convinced that it is just, proper or imperative that he shall, with his own person or his property, on any part of it, do that which is unwise, unusual, extravagant or irrational, or contrary to the accepted standards of mankind, and such belief is so tenacious that it will not yield to evidence or argument, and the person holding the belief has made or is about to make dispositions under its influence, then his belief is not an article of a general system of faith or religion; it is an insane delusion of an earthly and temporal character. If you find in this case such a belief it will still be your duty to abstain from any question as to the truth or falsity of the general system of faith from which it may be derived, but it will equally be your duty to find that the belief itself is an insane delusion. tional, wise or unwise, moderate or extravagant, according to the accepted standards of mankind, or contrary to such standards. The conduct which the belief, if you find it to exist, influences or produces is a reasonable measure and test for ascertaining the nature of the belief. If by this process you find that the belief is rational, wise, moderate, and according to the accepted standards of mankind, then it is a sane belief, it inspires and promotes only such conduct as an ordinary sane man would exhibit, and you will conclude that Mr. Vanderbilt is sane and competent. If by this process you find that the belief is irrational, unwise, extravagant and contrary to the accepted standards of mankind, you will proceed to inquire whether or not the belief is incorrigible; that is, incapable of being corrected by evidence or argument, whether or not it is held against all evidence and probability, and if you then find that the belief is incorrigible and is held against all evidence and probability you must conclude that the belief is a delusion, that the respondent is a lunatic, and that he is incompetent to manage himself and his affairs in consequence of such lunacy. In deliberating as to whether or not the respondent's belief that it is right or necessary to do the things which he has done is rational, wise, moderate and according to the accepted standards of mankind you should pay careful regard to the things which he has done or is about to do with his property; the deeds which he has made; the amount of his property which those deeds cover; the proportion which the property conveyed by those deeds bears to his whole estate; the will which he has made; the size and situation of his estate; his relations with his daughters and their circumstances; his relation with the present Mrs. Vanderbilt and her circumstances, and all the facts and circumstances surrounding the things which you find that he has done. : 0: written Law." One reason why a mere belief in a religion is not to be regarded as to whether or not it is an insane Civil Liabilities and Rights and the delusion is, that it is an abstraction, a mere mental conception, and as such is incapable of inquiry by human means as to its truth or falsity. This reason cannot apply to a belief which is influential and operative upon the life of the believer, and which takes outward form in his conduct. Such belief may be measured and judged by human standards. Hence, you should determine whether or not Mr. Vanderbilt actually believes that it is right or necessary that he make dispositions of his property. If you find that he harbors such a belief and has made, or is about to make, dispositions of any part of his property under the influences of that belief, you must endeavor to ascertain whether or not the things which he has done or is about to do are rational or irra "Un In view of the widespread approval-especially in the Southern States of the Union-of the so-called "unwritten law," it is not surprising that certain arguments and analogies derived from justification of individual lynching should crop out as attempted defenses to civil liability. So far as we have seen, however, the "unwritten law" has received no judiA recent interesting cial recognition in civil cases. case, which was rightly decided after satisfactory discussion by the Supreme Court of Georgia, was Supreme Lodge Knights of Pythias v. Crenshaw (August, 1907, 58 S. E. 629). A provision of the Georgia Civil Code declares: "Death by suicide or by the hands of justice, either punitive or preventive, releases the insurer from the obligation of his contract." The action was upon a policy of life insurance, and a defense founded upon such section of the code is disallowed in the first paragraph of the following extract from the official syllabus. The second paragraph of such syllabus similarly disposes of another theory of defense: "1. Even though the killing by the husband of the paramour of the wife be under such circumstances that the law would class the act as justifiable homicide, such killing is not at the hands of justice either punitive or preventive. Death by the punitive hand of justice is when the law commands the killing. Death by the hands of preventive justice is where the law permits the killing. In each instance the killing must be done by some person authorized to carry out the commands of the law or who is permitted by the law to do the act in the advancement of public justice. "2. A policy of life insurance contained the stipulation that if death is caused or superinduced at the hands of justice, or in violation of or attempt to violate any criminal law,' the insurer would not be liable for the full amount of the policy, but only for an amount to be computed according to a mode prescribed in the policy. The insured was slain by a husband either while he was attempting to have sexual intercourse with the wife or immediately after the act of sexual intercourse was complete. Held, that the death of the insured was not caused or superinduced in the violation of or attempt to violate any criminal law within the meaning of the policy as properly interpreted." On the second point the court said: "It is deducible from the authorities that a stipulation of the character now under consideration must be given a reasonable construction and that the liability of the company is not to be discharged unless the violation of the law consisted in an act of which the death of the insured was the reasonable and legitimate consequence. If the insured does an act which is a violation of the law and which he knows puts his life in peril at the time that he commits it, the company is not liable under a policy containing a stipulation of the character now before us. But there must be something in the act itself, independent of other circumstances, which makes the death the reasonable consequence. Death may follow the commission of any violation of law, when the offense is a felony; for the arresting officer is authorized to kill under certain circumstances in order to effectuate an arrest, as in the case where the insured robbed the State Treasurer he knew that under the law of the land an arresting officer, or, in some circumstances, even a private person, would have the right to slay him in order to take him; but his death resulting from the effort to arrest him was not the reasonable and legitimate consequence of the robbery that he had committed a few minutes before. "One who commits the offense of adultery with a married woman well knows that his life is imperiled if the outraged husband take the guilty pair in the unlawful act, or at its beginning, or at its conclusion; but it cannot be said as a matter of law that the killing of the adulterer is the natural and legitimate consequence of the illicit intercourse between him and the wife of the wronged husband. Death may result, but it can be no more said that death of the adulterer at the hands of the husband is the reasonable and legitimate consequence of the act of adultery than it can be said that the death of a felon at the hands of an arresting officer is the reasonable and legitimate consequence of the felony committed. Death does not follow in the ordinary sequence of events any more in the one case than in the other. In Gresham v. Equitable Accident Ins. Co., 87 Ga. 497, 13 S. E. 752, 13 L. R. A. 838, 27 Am. St. Rep. 263, the policy excepted from the risk death or injury which may have been caused by fighting. The ruling in that case was simply that such a stipulation refers to voluntary fighting by the insured, or involuntary fighting brought on wholly or partially by his fault or temerity, or fighting for which he is partially responsible, either as a voluntary or a rash speaker or as a wrongdoer. Fighting is an act which in its nature and essence is calculated to bring on injury or death. Fighting under any circumstances may be attended with 2disastrous consequences. Death resulting from a fight is the natural and legitimate consequence which is to be expected. There is nothing in the crime of adultery, although a violation of the law of the land and a great moral wrong, which in its essence is calculated to produce the death of the adulterer. Under some circumstances it may be the occasion of the death of the adulterer, but his death is not the natural and legitimate consequence of the adultery itself.” The Georgia court cites many authorities tending to uphold this decision, among them Goetzman v. Conn. Mut. Life Ins. Co., 3 Hun, 515, which is very closely in point.-N. Y. Law Journal. : 0: Physiognomy as Property. In connection with the decision of the Court of Errors and Appeals of New Jersey in Vanderbilt v. Mitchell, 67 Atl. 97, and the editorial in this journal on September 12, 1907, entitled "Liberal Relief by Injunction," commenting upon that decision, it will be of much interest to read the decision of the Court of Chancery of New Jersey in Edison v. Edison Polyform Manufacturing Co. (July, 1907, 67 Atl. 392). It was held that an injunction will lie to restrain the unauthorized use of one's name by another as a part of its corporate title, or, in connection with its business or advertisements, his picture and his pretended certificate that a medicinal preparation, which such other is engaged in manufacturing, is compounded according to the formula devised by him, though he is not a business competitor. The court said in part: "If a man's name be his own property, as no less an authority than the United States Supreme Court says it is (Brown Chemical Co. v. Meyer, 139 U. S. 542, 11 Sup. Ct. 625, 35 L. Ed. 247), it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner rather than to the person seeking to make an unauthorized use of it. If the mere exhibition of one's face to one's which was being executed according to the laws of New York. Under the laws of that State a man cannot devise more than half of his estate to charity where he leaves (inter alios) a child. His right to make an absolute devise of his property was thus threatened, and the impairment of this right was held to give him a standing in a court of equity to attack the certificate. Judge Dill, in concluding his illuminating opinion, said that the question whether the bill might not have been rested on the ground of an interference with personal, as contradistinguished from property, rights was not decided, for the reason that the case 'presented the property feature to an extent sufficient to satisfy even the rule adopted by the court below.' "The Court of Appeals has thus emphatically defriends and to others on the public streets be a publi-clared that the term 'property right' is not to be cation for all purposes, then that line of cases of which Pollard v. Photographic Company, 40 Ch. Div. 345, is an example was wrongly decided, for there could be no implied contract or confidence to keep that private which was already public property. "I regard the case of Vanderbile v. Mitchell, supra, just decided by the Court of Appeals, as conclusive. That court, as I have said, condemned Roberson v. Rochester Folding Box Co., 171 N. Y. 538, and cited with approval Routh v. Webster, 10 Beav. 561, and Walter v. Ashton, 2 Ch. 282. It appeared in Van derbilt v. Mitchell, supra, that complainant's wife, having had born to her, two years after her marriage, a son who was not complainant's son, falsely stated to the attending physician that the complainant was the father of the child. This statement was credited by the physician, who inserted it in his birth certificate, sent by him to the Bureau of Vital Statistics, where it was recorded. The record, by the terms of our statute, is prima facie evidence of the facts therein stated. The complaint prayed that this fraudulent record might be canceled, and that an injunction might issue restraining both mother and child from claiming thereunder the status, name or property of a child lawfully begotten by complainant. The defense set up was that complainant did not show that any of his property rights had been affected, and such was the decision of Garrison, V. C.; but on appeal it was held that the complainant was entitled to relief. It was pointed out by Dill, J., that inasmuch as the statute made the recorded certificate prima facie evidence of the facts stated in it, it could be used as evidence in a suit, brought against the complainant for necessaries furnished to the child. This of itself brought the case well within the ruling in Routh v. Webster, supra. It was a false statement, which exposed the complainant to the risk of pecuniary liability; but the court went further. It appeared that the complainant was a beneficiary of a vested remainder in land under a trust taken in any narrow sense, and that the tendency of equity in cases of this description should be to extend, rather than to restrict, the jurisdiction. Judge Dill says: 'From time immemorial it has been the rule not to grant equitable relief where a party praying for it had an adequate remedy at law; but modern ideas of what are adequate remedies are changing and expanding, and it is gradually coming to be understood that a system of law which will not prevent the doing of a wrong, but only affords redress after the wrong is committed, is not a complete system, and is inadequate to the present needs of society.' It is difficult to imagine a case in which preventive relief would be more appropriate than the present. In a perfectly unauthorized way a certificate falsely purporting to be made by Mr. Edison, and also false in fact, because not compounded with all the ingredients of the formula, is put by a company bearing Edison's name upon every bottle of Polyform which it sells. That there may be no mistake as to who is intended, the certificate is accompanied with a like ness. "I think an injunction should be granted restraining the defendant company from holding out, either pictorial representation, that Mr. Edison has any in the name of the company or by certificate, or by connection with or part in the complainant's business."-N. Y. Law Journal. : 0: Overhanging Eaves. The subject of overhanging eaves has ever been a perplexing one to the lawyers who have had to deal with it. One cause for this has been that, while, no doubt, hundreds of cases have arisen, the amount involved has been so small that rather than go to the expense of bringing the question into the courts, the parties have come to some amicable settlement of the matter, thus making a scarcity of reported cases. The chief cause, however, has been that in the few cases that have been reported the courts have given decisions directly contrary to each other. The two questions that have arisen over this subject have been: First, whether, to secure their removal, one should bring an action in ejectment or an action under section 1638 of the Code of Civil Procedure, or whether he had only an action for nuisance. Second, what rights the owner of the overhanging eaves might acquire by their continuance for twenty years without the adjoining owner's consent. To sustain an action under section 1638 of the Code, the plaintiff is required to show "that the property at the commencement of the action was, and for the one year next preceding has been, in his possession, or in the possession of himself and those from whom he derives his title, either as sole tenant, or as joint tenant or tenant in common with others. This possession must be an actual possession, not simply a legal possession, which follows in the wake of a title and is called constructive possession. Churchill v. Onderdonk, 59 N. Y. 134." To entitle one to maintain ejectment, one must show that he is actually out of possession. 15 Howard Pr. 358. So the solution of the questions depended on whether or not the plaintiff was considered in possession of the land over which the eaves extended. In the early case of Sherry v. Frecking, 4 Deuer, 452, it was held that where one's eaves overhung the plaintiff's land the plaintiff was thereby disseised of the space occupied, so an action in ejectment was allowed. But in the later case of Aiken v. Benedict, 39 Barbour, 400, with identical facts, the court refused to allow ejectment, and said of the above case: The point appears by the report of the case to have been decided with little or no consideration and without referring to a single authority to show that ejectment would lie." As to its own reasons for refusing ejectment, the court said: "Of what has the defendant taken possession which belongs to the plaintiff? Clearly nothing but an open space of air over the land of the plaintiff." On the further point, that in order to sustain ejectment the plaintiff must be deprived of that which, on execution, the sheriff could put him in possession of, the court says: "How could the sheriff put the plaintiff in possession of this space? It is not perceived how it could be done." The later case of Vroman v. Jackson, 6 Hun, 386, where the action was over an encroaching cornice, followed the latter case rather than the former; and there seem to be no later New York cases on this cognate question of eaves, cornices and the like. This situation as to the right to bring an ejectment action, necessarily made as equally uncertain the question whether an easement or title by adverse From this dilemma we have been delivered by the very late case of Butler v. The Frontier Telephone Co., 186 N. Y. 486, though this is not a case on eaves. In this case the plaintiff brought an action in ejectment to regain possession of real property occupied by a telephone wire of the defendant company in passing over his lot, but touching it in no place. It was contended by the defendant that an action for nuisance was the only remedy, and upon this question it went to the Court of Appeals. In deciding the first point-disseisin, Judge VANN, after a very full review and discussion of the above subject, said: "Unless the principle usque ad coelum is abandoned, any physical, exclusive and permanent occupation of space above land is the occupation of the land itself, and a disseisin of the owner to that extent;" and, as to the second point, viz., the ability of the sheriff to put him into possession, says: "The sheriff, however, can deliver occupied space by removing the occupying structure." The points are all summed up in this sentence: "Where there is a visible and tangible structure by which possession is withheld, to the extent of the space occupied thereby, ejectment will lie, and the sheriff can physically remove the structure and thereby restore the owner to possession." Thus we have overruled both points upon which the lower courts grounded their refusal to allow an action in ejectment for overhanging eaves; and there can be no doubt now that ejectment will lie under this case, where the encroaching object is eaves. It must necessarily follow that one does not acquire an easement, but rather title, by adverse possession to the land which his eaves have overhung for twenty years without the consent of the owner. Buffalo, N. Y., June, 1907. H. J. DRAKE. NOTES OF CASES. Banks and Banking-Improper Withdrawal of Funds Subrogation-Limitations.-In American National Bank of Macon v. Fidelity & Deposit Company of Maryland, decided by the Supreme Court of Georgia (October, 1907 58 S. E. 867), the follow ing is the syllabus by the court: “If a bank has notice or knowledge that a breach of trust is being committed by the improper withdrawal of funds, it incurs liability, becomes responsible for the wrong done, and may be made to replace the funds which it has been instrumental in diverting; and it appearing that the funds alleged in this case to have been diverted and misapplied were the assets of an insolvent corporation, and that the funds had been deposited in the bank by a receiver ap pointed by an order of the Superior Court, which provided that such funds should only be paid out on checks signed by the receiver and countersigned by the judge, of which order and the provisions thereof the bank had knowledge, the creditors of the corporation, to whom the receiver sustained a fiduciary relation, would have had the right to enforce the liability incurred by the bank because of having paid out such funds upon checks not countersigned as provided. "But when the creditors, or the obligee, in a bond given by the receiver for the faithful performance of| his duties relating to the funds, upon a breach of trust by the receiver, participated in by the bank, brought suit and recovered judgment against the receiver and the surety on the bond, and the surety paid the judgment, such surety is subrogated to the rights of the creditors to enforce the liability in curred by the bank on account of its participation in the breach of trust by the fiduciary. "It appearing that the right of action against the defendant, once existing in favor of the parties to whose rights the plaintiff (the surety) in this case is subrogated, is barred by the statute of limitations, the right of action upon the part of the plaintiff is also necessarily barred." Carriers Baggage-Baggage Checks.-In Park v. Southern Railway, decided by the Supreme Court of South Carolina (October, 1907, 58 S. E. 931), it was held that where there was no joint contract between carriers to carry passengers and their baggage, but distinct tickets were bought, and the second carrier, to accommodate a passenger, gave its check for baggage before receiving it from the first carrier, the second carrier, on showing that the baggage was never received, or that it exercised due care in delivering the baggage received, is relieved from liability for its loss. It was specifically decided that a railroad baggage check is not a contract, but a receipt, and is, therefore, merely prima facie evidence of a delivery of baggage to the carrier. The court said in part: "When we bear in mind that there was no joint contract between these roads to carry plaintiffs and their baggage from Greenville to New York and return and when we remember that there were two dis tinct tickets bought, namely, from Greenville to Washington and return, and from Washington to New York and return, we think it hardly going too far to say that such a doctrine would be unjust. There is no law in existence by which a railroad company can be held responsible for baggage which is shown never to have been delivered to it. Even in cases of through shipments of freight under joint itself from liability by showing that the goods in contract a connecting carrier is allowed to relieve question never reached its line, unless under contract How much more, it make itself absolutely liable. then, should the defendant in this case, where there were three distinct shipments, be allowed to show that the goods for which it issued its check as an accommodation never arrived, or that it exercised due care in delivering the baggage that did arrive bearing a check corresponding to that surrendered by the plaintiffs? Having shown either alternative, we think both reason and authority will sustain us in holding the defendant relieved of liability. "The evidence of delivery relied on in this case is the check issued by the defendant company. Now, it will doubtless be conceded that a check is a mere receipt for goods delivered. It can be no contract, for there are no words written thereon making a contract. The contract of carriage is either parol or is contained in the ticket held by the passenger. It has been held that even the ordinary ticket does not constitute a contract of carriage, but is merely prima facie evidence of the possessor's right to transportation. (Pier v. Finch, 24 Barb., N. Y. 514.) The general rule seems well settled that a receipt is merely prima facie evidence of the thing receipted for. (Hogg v. Brown, 2 Brev., S. C. 223; Gibson v. Peeples, 2 McC., S. C. 418; Daniels v. Moses, 12 S. C. 130; Brice v. Hamilton, 12 S. C. 32; Bowen v. Humphreys, 24 S. C. 456.) Now, unless there is some matter of public policy making it advisable or necessary to make an exception in the case of receipts of common carriers the rule will apply in the case, now under consideration. That there cannot be such neces sity for the exception seems settled by the number of authorities holding that such receipts are merely prima facie evidence, a few of which are 4 Elliott, sec. 1655; 3 Hutch. on Carriers, 2d ed., secs. 1301, 1302; Davis v. Railway, 22 Ill. 278, 74 Am. Dec. 151; Ahlbeck v. Railway, 39 Minn. 424, 40 N. W. 364, 12 Am. St. Rep. 661; Zeigler Bros. v. Railway, 87 Miss. 367, 39 So. 811; 7 Current Law, 603." |