NOTES OF RECENT DECISIONS.

JOINT TORT-FEASORS-CONTRIBUTION-LIABILITY OF HUSBAND FOR THE TORTS OF WIFE. -The Supreme Court of Utah, in the well considered case of Culmer v. Wilson, 44 Pac. Rep. 833, decide a number of interesting questions as to liability for contribution between joint tort-feasors and the liability of the husband for torts of the wife. The specific holdings are that where a trustee enters suit at the request and for the benefit of the cestui que trust, and wrongfully and knowingly obtains a judgment in a court having no jurisdiction in the case, and the circumstances are such as to show that he knew the illegal nature of the act, or were sufficient to render ignorance of the illegality inexcusable, and he becomes thereby a joint trespasser to a void judgment, and where such trustee or agent is sued jointly with the principal for damages arising from the illegal proceedings, trespass and judgment, and he pays the judgment rendered against both, then he will be left by the law where his wrongful act places him. In such case the rule that precludes one tort-feasor from indemnity against the other applies, and he is not entitled to contribution from the other tort-feasor.

When a naked trustee or agent enters suit at the request and for the benefit of the cestui que trust, and is innocent of any illegal purpose, ignorant of the nature of the act, which was apparently honest and proper, and acted in good faith, with an honest purpose, in what appeared and he believed to be right, and, from the nature of the case, he could not be presumed to know that he was doing an illegal act, and the tort is one arising from a construction or inference of law, and not arising from a known meditated wrong, and he pays the judgment rendered against both, then the rule changes with the reason, and such innocent agent may have contribution from the joint tort-feasor. They also decide that when a party sued as a joint tort-feasor makes a bona fide claim to the property, and seeks to obtain possession by legal process, from a court that he believes has jurisdiction, he may direct his agent to do those acts necessary to be done in asserting those bona fide rights; and if it is decided that such claim is invalid, or that the court has no jurisdic

tion, in the eyes of the law, growing out of the mere relation of the perpetrators of the injury, the maxim of the law that there is no contribution among wrongdoers does not apply, and the law will imply an indemnity to such agent who believed as his principal did, and who acted in good faith, and was innocent of any wrongful intent or purpose, for any damages he was made to pay on account of such act done in pursuance of his principal's direction, within the scope of his instructions and employment.

Our statutes, they say, have relieved married women from common law disability, and given them independent power to deal with, manage, control, transfer, dispose of, hold and enjoy all their separate property, without limitation or restriction by reason of marriage, to make contracts, contract property, to sue and be sued, defend and be defended, and in all respects places her in the same position with reference to contracts, property and liability, on the same footing, with other persons; and, when a failure to perform a duty under a contract is itself a tort, it may be treated as such against a married woman, thus taking away a reason of the common law rule. And, while the statutes do not in express words repeal the common law rule that the husband is liable for the torts of the wife, it has made such modifications in the husband's rights and her disabilities as to wholly remove the reason for his liability. So that she can control her time, earnings and property, and must be held liable for her torts, and finally they hold that the husband is not liable for the torts of his wife committed before marriage, and while she was the wife of another man.

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CONTRACT PERFORMANCE.-Dolan v. Rogers, recently decided by the Court of Appeals of New York, is an instructive one on the subject of performance of contract. There a construction contract between defendant and a railroad company provided that contractors should give their personal attention to the work, and could not subcontract without consent of the company in writing. Plaintiff, with knowledge of such contract, agreed with defendant to construct a certain part of the road provided for in the construction contract, and completed part of the work when he was stopped by the com

pany, by virtue of the condition in its contract. Defendant was paid by the company for the work done by plaintiff. It was held that it was an implied part of the contract between plaintiff and defendant that, if performance was not permitted by the company, both were to be released as to the future, but bound as to the past, and defendant could not escape liability to plaintiff on the ground of plaintiff's failure to perform the entire contract. The court says in part:

Impossibility of performance is, in general, no answer to an action for damages for non-performance of a contract, provided the contingency was such as the promisor should have forseen and provided against when he made the promise; nor will it permit a recovery for part performance of an entire contract. 3 Add. Cont. (8th Ed.) 1196; 2 Pars. Cont. (8th Ed.) 672. If, however, the impossibility arises, even indirectly, from the acts of the promisee-as, for instance, where one of the contracting parties so conducts himself as to subject the other to an action by some third per son if he duly performs the contract-it is a sufficient excuse for non-performance. U. S. v. Peck, 102 U. S. 64; Gallagher v. Nichols, 60 N. Y. 438; European & Australian Royal Mail Co. v. Royal Mail Steam Packet Co., 30 Law J. C. P. 247; 3 Add. Cont. 1194; Story, Cont. § 976. This is upon the principle that he who prevents a thing from being done may not avail him self of the non-performance which he has himself oc casioned, for the law says to him, in effect: "This is your own act, and therefore you are not damnified." West v. Blakeway, 2 Man. & G. 751.

In this case, the defendant, by his contract with the railroad company, had given it the power to treat any subcontractor, who entered upon its premises to build the road, as a trespasser, and to prosecute him accordingly. It is insisted that the defendant thus, indirectly, stopped the work himself, and created the impossibility that he now, in effect, invokes as an excuse for refusing further payment, although he has been paid by the company for all that was done by the plaintiff. This may be true, but we prefer to base our affirmance of the judgment upon another ground. We think that, as both parties had in view the contingency that performance might not be permitted by the railroad company, it was an implied part of their contract that, if such were the result, both were to be released as to the future, but bound as to the past. Thus, where a contract provided that the defendant was to give to the plaintiff the use of a music hall upon a certain day, but, before the day arrived, the hall was destroyed by fire, it was said: "There seems no doubt that where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforseen accident, the performance of his contract has become unexpectedly burdensome, or even impossible. this rule is only applicable when the contract is positive and absolute, and not subject to any condition, either express or implied; and there are authorities which, as we think, establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled, unless, when the time for the fulfillment of the contract arrived, some particular pecified thing continued to exist, so that, when en

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tering into the contract, they must have contemplated such continued existence as the foundation of what was to be done, there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing, without default of the contractor." Taylor v. Caldwell, 32 Law J. Q. B. 164. That case was made the basis of a judgment rendered by this court in an action involving the sale and delivery of specified articles of personal property, under such circumstances that the title did not vest in the vendee; and it was held, that as the property was destroyed by an accident, without the fault of the vendor, so that delivery became impossible, the latter was not liable to the vendee in damages for the non-delivery, because the law implied a condition that the property should continue to exist. Dexter v. Norton, 47 N. Y. 62. So, contracts for personal services requiring skill, which can only be performed by the person named, are held not of absolute obligation, under all circumstances, but subject to the implied condition that the person designated shall be able to perform at the time specified. Spaulding v. Rosa, 71 N. Y. 40. Judge Allen, in delivering the opinion of the court in the case last cited, said: "Both parties must be supposed to contemplate the continuance of the ability of the person whose skilled services are the subject of the contract, as one of the conditions of the contract." Id. 44. Where a person guarantied the payment of dividends by a corporation at a fixed rate for seven years, and, before the expiration of that period, the corporation was dissolved, on the application of the attorney-general, it was held that the parties contracted upon the assumption of corporate existence during the time covered by the guaranty, and that the dissolution, by taking away for the future the whole consideration upon which the guaranty was based, relieved the guarantor from liability thereon. The chief judge, speaking for the court, after referring to the cases above cited, said that they were "not exceptions to the rule that contracts voluntarily made are to be enforced, but the courts, in accordance with the mani fest intention, construe the contract as subject to an implied condition that the person or thing shall be in existence when the time for performance arrives. So, if after a contract is made, the law interferes, and makes subsequent performance impossible, the party is held to be excused." Lorillard v. Clyde, 142 N. Y. 456, 462, 37 N. E. Rep. 489.

There are many cases holding that the continued existence of the means of performance, or of the subject-matter to which the contract relates, is an implied condition, and the rule seems to rest on the presumption that the parties necessarily intended an exception; and, as said in Dexter v. Norton, supra, it operates "to carry out the intention of the parties under most circumstances, and is more just than the contrary rule." Page 66. Tone v. Doelger, 6 Rob. (N. Y.) 251, 256; Walker v. Tucker, 70 Ill. 527; Thomas v. Knowles, 128 Mass. 22; Field v. Brackett, 56 Me. 121; Scully v. Kirkpatrick, 79 Pa. St. 324, 332; Shear v. Wright, 60 Mich. 159, 26 N. W. Rep. 871; Howell v. Coupland, 1 Q. B. Div. 258; Robinson v. Davison, 40 Law J. Exch. 172; Appleby v. Meyers, 36 Law J. C. P. 331, 336. The effect of the rule is to excuse both parties from further performance of the contract without giving to either the right to recover damages for the part not performed. Id. In England the rule seems to go no further in its effect than to relieve

both parties from any obligation under an entire contract, with reference either to the future or the past. In this country, however, there may be a pro rata recovery for part performance by the one party, at least where what has been done is of benefit to the other. Jones v. Judd, 4 N. Y. 411; Cleary v. Sohier, 120 Mass. 210; Butterfield v. Byron, 153 Mass. 517, 27 N. E. Rep. 667; Cook v. McCabe, 53 Wis. 250, 258, 10 N. W. Rep. 507; Schwartz v. Saunders, 46 Ill. 18; Hollis v. Chapman, 36 Tex. 1; Niblo v. Binsse, *40 N. Y. 476. In Butterfield v. Byron, supra, the court said: "The principle seems to be that when, under an implied condition of the contract, the parties are to be excused from performance if a certain event happens, and, by reason of the happening of the event, it becomes impossible to do that which was contemplated by the contract, there is an implied assumption for what has properly been done by either of them."

EVIDENCE-THE ADMISSION OF TESTIMONY FROM A FORMER TRIAL WHEN THE WITNESS IS ABSENT.

One of the many disputed questions in law arises out of the very frequent occurrence of a party desiring to introduce the testimony of an absent witness on a second trial, which he gave on a former one. This being in part a disputed question, it is worthy of the most careful consideration, as the great number of our new trials make it only too often desirable to introduce such testimony. The circumstances under which this may be done is the subject of this discussion. The Am. & Eng. Ency. of Law says: "The testimony of a witness, either oral or written, in a former judicial proceeding, may be proved in a subsequent action between the same parties or their privies, where the witness is dead or insane, or sick and unable to attend, or having been summoned appears to have been kept away by the adverse party." This is the general and well recognized rule and is considered as the law on this question, but in some States the rule is extended to the testimony of a witness absent from the jurisdiction of the court at the time of the second trial; this proposition is as stoutly denied in other States, and concerning this there are many

disappearance of the original witness is not by itself enough to admit such testimony if by due diligence the witness' attendance could have been secured, though it is sufficient to show that the original witness is absent and a non-resident in the State where the trial is held, being out of the jurisdiction of the court," and he cites the English cases which make it permissible to introduce such testimony when the witness is "beyond the sea" which, in England, meant nothing more than beyond the jurisdiction of the English court, and in this country this would be true when the witness is out of the jurisdiction of the State. Before our modern theory of the law of frequent new trials for errors and other causes these questions were not so numerous, and hence they are questions of comparatively recent practice. In most of the earlier decisions it was held that such evidence was not allowable, as this was more in accordance with the general strict rules against hearsay evidence; but with the gen eral relaxation of the strictness of these rules, and the passage of the statutes in many of the States permitting such evidence, it seems that the better decisions are now no longer opposed to this rule. It is well settled "that where a witness is only temporarily absent from the State, and it does not appear that he has been subpoenaed or that any effort has been made to procure his attendance or testimony, his evidence in another trial, between other parties, cannot be produced." The admission of such evidence from a former trial for a now absent witness, being in a manner hearsay, and against the general rules of evidence, and therefore only on the ground of necessity, it may be stated that such a privilege must be strictly construed, and it must affirmatively appear that such witness is beyond the jurisdiction of the court. The mere absence of the witness does not render evidence of his testimony in a former trial admissible; and, indeed, many of the cases which held that the testimony of

troduce the stenographic notes of testimony given on a former trial without having exhausted the best sources of information which were reasonably accessible in order to show that the witness was outside of the jurisdiction of the court."'6 The New York courts do not allow the introduction of such evidence, and Judge Nelson mentions the strictness with which the rule is guarded by the courts. In Texas there is a Code provision permitting such evidence in both civil and criminal cases, but this is construed very strictly, and where the wife of the absent witness testified that she had received letters from him from some place outside of the State, it was held that the evidence was not admissible. And in a later case, which was well considered and is often quoted as rejecting such testimony of a former trial, the real point decided was that the statute was not strictly complied with. "We are of opinion

that the absence of the witness was not sufficiently accounted for-to our mind, the tangible defect in this testimony was the want of any showing of proper effort to ascertain the fact as to whether the witness could be procured on the trial or not; whereas, it should have been shown that it was not in the power of the State to produce the witness in person before admitting his former testimony." Likewise the Supreme Court of Iowa10 excluded such evidence because not sufficient proof of diligence to procure the witness had been shown to admit such testimony under the Code," and as a rule such evidence could be admitted only under necessity; and again in a later case, 12 decided in 1885, under the Code, which provides for the admission of the stenographer's notes, when the witness himself cannot be procured in court, that evidence to the effect that that witness was reported to have left the State was not sufficient to admit such testimony from a former trial. So in California, where the Codel provides for the admission of such

testimony, it must be strictly construed. There are many courts which draw a strict distinction between civil and criminal cases, admitting such testimony in the former but excluding it in the latter. In a criminal case in Mississippi14 they seem to admit the rule permitting such testimony in civil cases, but excluding it in a criminal case, and in the very next volume, in a civil case, they entirely deny the rule of admission, saying: "No reason exists for a different rule in civil cases; indeed, a stronger reason exists for admitting it in criminal cases."'15 While the California Code1 does not permit admission of such evidence in criminal cases, it is also excluded in New Hampshire,17 Virginia and Kentucky, yet in the last case such evidence was excluded in every case except when the witness is dead, which is evidently bad law, and the Virginia case rests on cases which are determined on other grounds. The New York courts18 seem to recognize the distinction in favor of civil cases, and the same is true in the United States Circuit Court.19 Many of these cases excluding such evidence in criminal cases lay stress upon the constitutional provision guarantying to every accused the right to be confronted with the witnesses against him; this was held in the United States Circuit Court for New Hampshire. 20 In Louisiana, where a State statute provided for admitting the State's evidence taken at the preliminary trial, it was held that such evidence taken at a preliminary trial on behalf of the accused was admissible, as he had suspected that the witness would soon leave the State on account of ill health, which he also did. The Arkansas court holds in a well considered case that such evidence is admissible in both civil and criminal cases, even though the former testimony was taken only before a committing magistrate at a preliminary trial, provided the accused was present and had an opportunity to cross-examine, and they hold that this is not contrary

21

to the constitutional provision guarantying to every accused the right to be confronted with the witnesses against him at the trial.22 And in a later and very similar case, which is often quoted, the court goes one step farther, holding that it is not even necessary to prove that the witness is out of the State, but simply that he cannot be procured.28 Again in a later and very similar case the court followed the decision of Shackelford v. State, but Judge Eakin wrote a strong dissenting opinion, and drew a distinction between the case where the former testimony was taken on a former trial where the accused was confronted with the witness against him, and where he was presumed to cross-examine him, and the case where such testimony was given on a preliminary examination before a committing magistrate where the accused was not bound to make any answer at all. He claims that the constitutional guarantee, that every accused shall be confronted with his witnesses against him on the trial, should not be given any unnecessarily broad construction, and hence can mean only on the trial, and not at any other place or time. 24 This seems to me is a good distinction and rests on sound reason, and at the same time it will not militate against my contention that evidence of a former trial can be introduced when the witness cannot be found or is out of the jurisdiction of the court in both civil and criminal cases; on the contrary it will explain many of those cases which would otherwise hold the contrary rule. That such evidence from a former trial is admissible in a case where the witness has since died is admitted by all good authority. This is on the ground of a legal necessity, and there is a great division. of authority as to whether a witness' whereabouts, being unknown or remaining outside of the jurisdiction of the court, should be considered as a witness dead, and his evidence on a former trial be introduced as a legal necessity. The New York court holds that it should not,25 but in an oft-quoted case they say: "There can scarcely be a shade of difference between the two cases, death and absence, either in principle or

22 Hurley v. State, 29 Ark. 17.

23 Shackelford v. State, 33 Ark. 539.

24 Dolan v. State, 40 Ark. 454.

25 Wilbur v. Selden, 6 Cow. 162.

hardship."26 Others also agree with the New York courts.27 But many others again hold that there is no necessary distinction between the two cases.28 The California court before the Code permitting such evidence was passed says: "The rule allowing proof of testimony of a deceased witness applies equally to witnesses out of the State."'29

The Michigan court holds well for my contention. It says, in 1878, in a case where the witness could not be procured, being out of the jurisdiction of the court: "There is no good ground for any such distinction. In a case like the present the witness is to all intents and purposes, so far as these parties are concerned, legally dead. They can no more avail themselves of his personal presence in court than though he were in fact dead."'30 The same is held in other cases.31 The Pennsylvania court holds the same way in an early and oft-quoted case. "We should consider the residence of the witness in the State of Ohio the same thing as his death for the purpose of letting in the evidence of what he swore on the former trial.''32 In accordance with reason and justice many States have passed laws permitting such testimony of former trials when the witness is out of the jurisdiction of the court. The California cases are based on such a Code.33

Likewise in Texas there is a Code provision. The Iowa Code even allows the introduction of such testimony, when the witness is only in another county, and on which many of her cases are based.35 The Nebraska Code is as follows: "Duly certified copies of all entries and records or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases

26 Crary v. Sprague, 12 Wend. 41. 27 Gastrell v. Phillips, 64 Miss. 473.

28 Hooker v. Jameson, 2 W. & S. 438; Clinton v. Eites, 20 Ark. 216, 235; Franklin v. Gunnersell, 11 Mo. App. 306; Kindrick v. State, 10 Humph. 479; Summons v. State, 5 Ohio St. 325.

29 State v. Devine, 46 Cal. 45.

30 Howard v. Patrick, 38 Mich. 795.

31 Stewart v. First Nat. Bank, 43 Mich. 257; Dunbar v. McGill, 69 Mich. 297.

32 Magill v. Kaufman, 4 Searg. & Rawle, 317, 8 Am. Dec. 713, and note 1818.

33 Subd. 8, § 1870; Hicks v. Lovell, 64 Cal. 22; Benson v. Shotwell, 103 Cal. 163.

34 Code Crim. Proc., §§ 2532, 2534; Menges v. State, 21 Tex. App. 413.

35 Iowa Code, §§ 3721, 3777; Baldwin v. Ry. Co., 68 Iowa, 37; Fleming v. Town of Shenandoa, 71 Iowa, 456; Bank of Monroe v. Gifford, 79 Iowa, 300.