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such office of treasurer as required by any law," the obligation shall be void, and such treasurer is not liable for money forcibly taken from him by robbers. Beatty, C. J., dissented.

NOTES OF RECENT DECISIONS.

JUDGMENT-FICTITIOUS CAUSE-COLLUSIVE PETITION TO VACATE.-The decision of the case of Ex parte McKenzie, 44 N. E. Rep. 413, gave the Supreme Court of Illinois considerable trouble if we are to judge from the lengthy opinion filed, from which three of the members of the court dissented. It appeared there that after the expiration of the term at which a judgment was affirmed by the supreme court, and the lapse of the time allowed for ordering a rehearing, persons appearing as amici curia presented their petition and asked that the court should strike out, annul, and expunge from the records and reports of the court the opinion and judgment in the case affirmed, on the ground that the cause was fictitious and collusive, and the opinion and judgment were obtained by collusion and fraud practiced on the court. The petitioners were not parties to the record, were not privies to the judgment, and their property or rights or equities were not directly, necessarily, or injuriously affected by the judgment. It was held by a majority of the court, that the petition could not be maintained by mere strangers to the record.

NEGLIGENCE-PROPRIETOR OF BATHING RESORT FAILURE TO USE PROPER PRECAUTIONS. -According to the recent decision of Brotherton v. Manhattan Beach Imp. Co., 67 N. W. Rep. 479, a company that maintains a bathing resort, and lets out its privileges to the public for hire, is bound to take such precautions for the safety of bathers as a person of ordinary prudence would take under the circumstances, and whether or not proper precautions have been taken is ordinarily a question for the jury; and consequently, when such a company was notified of the disappearance of a bather so soon after he had been seen as to warrant the inference that an immediate search in the water would have resulted in his rescue before death, and

the company had no one present to watch bathers and rescue those in danger, and such agents of the company as were present failed to make any search in the water for the missing man, it is error to instruct the jury to return a verdict for the company in an action for the recovery of damages for his death.

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RAILROAD COMPANY ACCIDENT AT CROSSTRESPASSER.-Among the points decided by the Circuit Court of Appeals for the Seventh Circuit, in the case of Cahill v. Chicago, M. & St. P. Ry. Co., is that at a place where several thousands of persons cross the switching tracks of a railroad daily, and where no effort is made to stop them, by fencing, posting notices, or otherwise, persons attempting to cross are not mere trespassers; and the company is bound, not merely to refrain from wanton or willful injury after discovering them, but to anticipate their probable presence, and move its cars with reasonable precautions, and a proper regard to their safety; and that it is a question of fact in each case whether there has been, with the acquiescence of the railroad company, such a public and customary use of the alleged crossing as to justify the presence upon the track of the person injured. The court says:

While it is well-settled that, under ordinary cir cumstances, a railroad company owes no duty to a trespasser upon its tracks, it is also true that a trespasser may not be wantonly or willfully run down, and when he is perceived to be in a position of danger, from which he is not likely to escape by his own exertions, there arises on the part of the company a duty to use all reasonable diligence not to harm him. Railway Co. v. Tartt, 12 C. C. A. 618, 64 Fed. Rep. 823, and 24 U. S. App. 489. That much is due to a decent regard for human life and limb, and, on the same principle, it must be that in places on the tracks where people are accustomed to come and go frequently in considerable numbers, and where by reason of such custom their presence upon the track is probable, and ought to be anticipated, those in charge of passing trains must use reasonable precautions to avoid injury, even to those who, in a strict sense, might be called trespassers. But, when a railroad company consents to the customary or frequent passing of people over its tracks, they cannot be deemed trespassers, and the duty is as clear as the necessity that locomotives and cars be moved with proper regard for their safety. The adjudged cases on the subject are numerous. A leading one is Barry v. Railroad Co., 92 N. Y. 289, 292, where there had been long acquiecence of the company in the crossing of its track by pedestrians, which amounted to a license and permission to all persons to cross at a point where there was only a private right to cross; and it was held that the circumstances imposed a duty upon the company, in respect to persons using the crossing,

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"to exercise reasonable care in the movement of its trains." This case is reaffirmed in Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. Rep. 539, where it was held "that the defendant was not absolutely bound to ring a bell or blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under the circumstances." In Taylor v. Canal Co., 113 Pa. St. 162, 8 Atl. Rep. 43, after reference to the Barry Case the Supreme Court of Pennsylvania says: "The principle, clearly settled by the foregoing and many other cases that might be cited, is that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care toward those using the crossing; and whether, in a given case, such reasonable care has been exer eised, or not, is ordinarily a question for the jury, under all the evidence." In Roth v. Union Depot Co. (Wash.), 43 Pac. Rep. 641, where there is a discriminating review of cases, it is held that a company's acquiescence in the daily use of its track for travel afoot by 50 to 100 people imposes on the company a duty of ordinary diligenee to avoid injury to persons using the track. In Railway Co. v. Dick (Ky.), 15 S. W. Rep. 665, involving the same question, it was said that "undoubtedly the appellee ought not to be regarded as a trespasser upon the yard of the company," because he "was crossing the tracks by the permission of the company. It had, by its acquiescence in the work hands crossing them for a long time, licensed them to do so. It was permitting such use, and it had, therefore, by its own conduct, imposed upon itself a precautionary duty, as to the appellee, when he might be crossing its tracks in going from and returning to his work." To the same effect are Railway Co. v. Wymore (Neb.), 58 N. W. Rep. 1120; Ward v. Southern Pac. Co. (Or.), 36 Pac. Rep. 166. See, also, Townley V. Railway Co., 53 Wis. 626, 11 N. W. Rep. 55; Whalen v. Railway Co., 75 Wis. 654, 44 N. W. Rep. 849; Conley v. Railway Co. (Ky.), 12 S. W. Rep. 764; Railway Co. v. Crosnoe, 72 Tex. 79, 10 S. W. Rep. 342; Railway Co. v. Meigs, 74 Ga. 857; Southerland v. Railroad Co., 106 N. C. 101, 11 S. E. Rep. 189; Frick v. Railway Co., 5 Mo. App. 435; Palmer v. Railway Co., 112 Ind. 252, 14 N. E. Rep. 70. It is, of course, a question of fact, in each case, whether there has been, with the con sent or acquiescence of the railaoad company in possession, such a public and customary use of the supposed crossing as to justify the presence upon the track of the person injured. Taylor v. Canal Co., supra; Chenery v. Railroad Co., 160 Mass. 211, 35 N. E. Rep. 554.

ATTACHMENT-WRONGFUL LEVY-DESTRUCTION OF PROPERTY BY FIRE.-In Sammis v. Sly, 44 N. E. Rep. 508, decided by the Supreme Court of Ohio, it was held that where an attachment is levied on the property of a third person under the mistaken belief that it belongs to the defendant in the attachment suit, the title of the owner is not thereby changed, unless he treat the property as abandoned to the officer or attaching creditor, and sue for its conversion, and that where in such case, no such custody is taken of the property by the officer as deprives the owner of his control over it, and it is lost by

fire before the commencement of a suit for the conversion, the fire being in no way attributable to the fault of the officer or the levy of the attachment, the loss is that of the owner, and not that of the officer or attaching creditor. The court said in part:

The gist of the plaintiff's action is a conversion of his property by the defendants, not negligence in the care of it. The conversion was, at most, a technical one, a dealing with the property of the plaintiff as if it were that of the judgment debtor. The property, was not, in fact, converted. All the officer did was to place his hands on the stack, saying, as he did so, that he attached it as the property of the attachment debtor. It was then left where found. For this it wil be conceded the owner, Sly, had the right to treat the levy as a conversion of his property. The effect of such suit is to abandon the property to the wrongdoer, and in consideration of this the law gives to the plaintiff a recovery of its value. But the owner whose property has been wrongfully intermeddled with is not bound to pursue this remedy. He has the election to do so, or recover the property in an action of replevin, based upon his title. Until he makes his election, by bringing a suit for conversion, the title remains in him; otherwise he could not, at his election, maintain replevin. In other words, a mere in. termeddling with another's property in a way to deny his title does not of itself divest his title. He may treat it as such by commencing an action for a conversion, but until this is done the title remains in him In this case the suit for conversion was not commenced until some time after the fire, so that at the time of the fire the title to the stack of rye was in the plaintiff, and, no negligence having been imputed to the defendants as the cause of the fire, the owner of the property, the plaintiff, at the time of the fire, must bear the loss, in accordance with the maxim Res periit domino. True, the plaintiff says that, but for the levy, he would have threshed the rye before the fire, and that he was prevented thereby from doing so. This must be considered in connection with the undisputed facts. He was no party to the proceeding in attachment, and the levy could not, therefore, like an injunction, in anyway restrain him from exercising his rights of ownership. The actual pos session not being disturbed, he had the same right and ability to take care of his property that he had before the levy; and if he failed to do so it was his own fault. The levy, as made, did not deprive him of the right nor make it unlawful for him to do so. If he were the owner of the property as claimed, he would be liable to no one for dealing with it as he pleased, notwithstanding the levy. If the property had been taken into the actual custody of the officer, and so as to deprive the owner of any control over it, a different rule of liability might apply. In such case there would be much reason for holding that, irrespective of the question of care, the officer, having wrongfully deprived the owner of the care of his property, should be liable for its loss from any cause other than the act of God or public enemies; for, in such case, but for the wrong, the loss might not have occurred. But, as between the officer and the creditor, or the debtor in the attachment suit, it seems well settled that the officer is not liable for the destruction of the property while in his custody by fire or other means, unless guilty of a want of ordinary care. Swan's Treatise, 16th ed., 291; Story, Bailm., 2d

ed., Sec. 132; Crock. Sher., 3d ed., Secs. 448, 855. This rule is placed by Story on the ground that the officer is a bailee for hire, and should not be held to a greater nor less degree of liability than is required by the common rule in such cases-ordinary diligence. But as to a third person, whose property has been wrongfully taken under the writ, the reason does not seem to apply. As to such person, he would seem to be wrongdoer, and not a bailee of any kind. But this question is left undecided, and the decision placed on the grounds before indicated-that the owner was not in fact deprived of the custody of his property, nor of the title thereto by the levy; and the fire not being referable to the levy, nor to any want of care on the part of the officer, the loss occasioned by the fire fell .to the owner of the property.

NEGOTIABLE INSTRUMENT-INDORSEMENT OF DRAFT TO FICTITIOUS PERSON.-The Supreme Court of Tennessee, in Chism v. First Nat. Bank, decides that the indorsement of a bank draft by the payee to the order of a fictitious person in good faith and believing him to be real, is not in law an indorsement to bearer, such not being the intention of the indorsee; and the indorsement of the name of the fictitious indorsee by a third person without authority is a forgery and does not protect the bank in payment of the draft. The court says:

Two defenses are made: First, that complainants were guilty of such carelessness in their dealings with Weems as to estop them from setting up the present claim; second, that the indorsement by Chism, Churchill & Co. of this draft to a fictitious indorsee was in law an indorsement to bearer, and the result was that its payment through the usual channels of trade, without notice of the alleged defect, discharged the drawee.

As to the first of these grounds, it is sufficient to say that the record fails to show any recklessness or carelessness upon the part of complainants in this transaction to prevent a recovery, if for any sound reason this suit is maintainable. It is the second ground, however, upon which the defendants rest largely their defense to this claim. What is the effect of indorsing a bill to a fictitious person, the indorser not knowing that the indorsee was fictitious, but, on the other hand, believing him to be a real person, is a question of first impression in this State. There is no doubt it is true, as a general proposition, that the holder of commercial paper, payable to order, must trace his title through a genuine indorsement, including that of the payee. 2 Rand. Com. Paper, § 988; 1 Daniel, Neg. Inst. § 781; 1 Edw. Bills & N. § 519;

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them otherwise he cannot treat such a payment as a discharge of his liability. Shipman v. Bank, 126 N. Y. 318, 27 N. E. Rep. 371; Robarts v. Tucker, 16 Q. B. 575; Dodge v. Bank, 30 Ohio St. 1. It is otherwise as to his payment of a check or bill payable to bearer. In such a case, in the absence of knowledge that the party presenting the paper is wrongfully in possession of it, he can safely pay, because in so doing he is complying with the positive demand of his depositor. Tied. Com. Paper, § 312. And it is insisted for the defense that this was the legal effect of the indorsement by Chism, Churchill & Co. to Hamilton, the fictitious indorser. It seems from a note to Bayles, Bills, p. 79, that the controversy over the effect of indorsement of bills to fictitious persons grew out of the bankruptcy of Linsay & Co. and Gibson & Co., who negotiated bills with fictitious names upon them to the amount of nearly a million sterling a year. A great many cases grew out of these indorsements in the various courts of England, one of which (Minet v. Gibson, 3 Term R. 481) was carried to the house of lords. 1 H. Bl. 569. Mr. Chitty in his work on Bills (page 178), says: "The result of the discussion seems to be that a bill payable to a fictitious person or his order is, in effect, a bill payable to bearer, and may be declared on as such in favor of a bona fide holder ignorant of the fact against all the parties knowing that the payee was a fictitious person." In other words, whether such a bill was collectible by the holder, as if payable to bearer, depended upon the fact that the party against whom it was sought to be enforced, at the time he assumed liability upon it, knew that the payee was fictitious. Where he possessed such knowledge he was estopped from saying to a bona fide holder that he was not bound; otherwise he would be a party to the circulation of com. mercial paper, apparently good, yet with an inherent vice which rendered it worthless, at least as to him, though it fell into the hands of an innocent purchaser. Subsequently the bill of exchange act of 1882 was passed, the effect of which was in fact that a bill might be treated as payable to bearer when the party named as payee was a real person, but has not and was not intended by the drawer to have any right arising out of it. Bank v. Vagliano (1891) App. Cas. 107. In this country, among the text writers, Mr. Daniel states the rule as general, and says that: "In the case of a note payable to a fictitious person it appears to be well settled that any bona fide holder may recover on it against the maker as upon a note. payable to bearer. It will be no defense against such bona fide holder for the maker to set up that he did not know the payee to be fictitious." Mr. Daniel rests the rule upon the ground of estoppel, but Mr. Randolph, in his work on Commercial Paper (volume 1, § 164, note 4), suggests that the cases cited by him to support his text "apply this rule only when the maker has by his words or conduct raised any estoppel against himself," and this latter author fails in his text, as we understand it, to give the sauction of

sue made by this denial the court said: "The bare possession of this note by this person was competent evidence to be submitted to the jury, that he (the party transferring) was the Lent named in the note, and of course a member of the firm, and authorized to indorse it in the manner he did." "Here was a note which the evidence tends to show was genuine, payable to Whitney, Shaw, Lent & Hawes; a thing of value, and likely to be in the possession of the owners. Such possession therefore raised a presumption of ownership." Kohn v. Watkins, 26 Kan. 691, does raise the precise question here presented, and is a direct authority for the contention of defendants. In that case it was held that the drawer of a bill, who makes it payable to a fictitious person, and transmits it to a third person for delivery to the payee, is bound to a bona fide purchaser from that third party who indorses it with the name of the payee, though the drawer, when he issued the bill, believed that the payee was a real person, and intended it to be delivered to him only upon the receipt of a valuable consideration from him. The court rested its opinion on the text of Mr. Daniel, which has already been adverted to, and certain cases which were regarded as authorities, to sustain the rule adopted. Lane v. Krekle, 22 Iowa, 399, one of these cases, while it contains a dictum which is in harmony with the conclusions reached by the court citing it, was confessedly not an authority on the real point in controversy, as in that case the note sued on was payable to bearer. Another of these cases is Phillips v. Imthurn, 114 E. C. L. 694. There the signature of the drawer, as well as the indorsement, was a forgery, but the acceptor was held liable upon the ground that he had misled the holder. The ground of the decision, as stated by Keating, J., in the final disposition of this case reported in L. R. 1 C. P. 463-372, was that: "Upon the facts stated in this special case, it was not competent for the defendant to deny the genuineness of this bill. He knew that the plaintiffs were willing to advance money upon the bill only upon his vouching, by his acceptance of it, the authenticity of the drawing." Forbes v. Espy, 21 Ohio St. 474, was also relied upon in Kohn v. Watkins, supra. In that case E. & Co. issued a bill on New York to the order of C. H. & Co., its purchasers, who indorsed it to one Charles Clark, whose real name, however, was Maro. This was not a case of a fictitious payee, but of a man with an alias, or an assumed named, taking title in his assumed, rather than his real, name. So the court held that the indorsement and delivery of this bill to Clark must be regarded as an affirmation to all persons not otherwise informed that there was such a person as Charles Clark, and that Maro was that person. We do not think, upon these facts that this case can be said to support the general rule to which it was cited, and this was evidently the view of the Supreme Court of Ohio in a case to be referred to at length hereafter. Upon the other hand, we have at least two well considered cases which, in effect, adopt the English rule, to-wit: that only such paper as is issued to a fictitious payee or indorsee by the party sought to be bound, with full knowledge of the fact shall be treated as payable to bearer. In one of these cases-that of Armstrong v. Bank, 46 Ohio St. 512, 22 N. E. Rep. 866, after a careful review of the authorities, it is said: "If the drawer of a check, acting in good faith, makes it payable to a certain person or order, supposing there is such person, when in fact there is none, no good reason can be perceived why the banker should be excused if he pay the check to a fraudulent holder upon any less precautions than if it had been made

payable to a real person; in other words, why he should not be required to use the same precautions in the one case as in the other-that is, determine whether the indorsement is a genuine one or not. The fact that the payee is a non-existing person does not increase the liability of the bank to be deceived by the indorsement." The case of Shipman v. Bank, 126 N. Y. 318, 27 N. E. Rep. 371, involved over $200,000 was argued by counsel of research and ability, and was determined by a court of deserved reputation. In that case it appeared that the plaintiffs were depositors in the defendant bank. They drew checks for large sums to fictitious payees, supposing them to be real persons. These checks were given to a trusted employee, to be turned over to the respective payees. Instead, however, this employee endorsed the names of the payees upon them, and had them presented to the drawee, when they were paid without inquiry or suspicion of the genuineness of the indorsements. Suit having been instituted by the drawer to recover the sums so paid out, it was resisted upon the ground that these checks were in law payable to bearer. The court, however, speaking through O'Brien, J., say: "The maker's intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer, unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to a fictitious person." We think the rule thus limited is reasonable, while to eliminate the element of knowledge or intent would leave it harsh and unreasonable. In addition, with this limitation, the law of negotiable paper, so far as it involves the question of forgery, is consistent; for it is universally conceded that the payment of a check or a bill drawn to the order of a real person upon a forged indorsement of the payee's name will not protect. In such a case the banker is still liable to the owner for the funds in hand as though no payment had been made. 3 Rand. Com. Paper, § 1739. And this would be so even if the forger should personate an intended payee of the same name. Com. v. Foster, 114 Mass. 311. Then, in a case where the drawer has been guilty of no wrong, but innocently issues or indorses his check or bill to a fictitious person, believing him to be real, and a third party without authority writes the name of this fictitious payee or indorsee upon it, and by this fraud succeeds in collecting it, why should the drawee, by payment of such indorsement, discharge himself from liability to the drawer? The writing of the name of the nonexisting payee under such conditions is forgery at common law (4Bl. Comm. p. 247; 2 Whart. Cr. Law, § 653), and under Mill & V. Code, § 5492. In the present case, without fault on the part of the complainants, the drawee has paid upon a forged indorsement, to a party not entitled to collect it, a bill of which Chism, Churchill & Co., were owners, and which no one had a right to collect save upon their order, and now has it, and declines to account for its value. Under these circumstances, we think the chancellor was right in holding the drawee liable, and we therefore affirm his decree.

PROCEEDINGS TO OBTAIN SICK AND DISTRESS BENEFITS OF SOCIETIES AND FRATERNITIES.

1. Binding Effect of By-Laws, etc.-It may be stated, in general terms, that mem

bers of unincorporated voluntary associations are bound by their constitution and by-laws. Yet such binding effect is to be understood in a certain limited sense. The adjudications differ somewhat as to what these limits are. Many cases declare the rule to be that the constitution, by-laws, etc., are a law unto the members. A more accurate statement of the doctrine with full illustrations, will be found in 42 CENTRAL LAW JOURNAL, p. 175, et seq.2 Where the society is duly incorporated, regulations made in accordance with the charter and laws are binding on the member.

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2. Society Regulations.-The authorities agree that these societies may make reasonable regulations as to the form and sufficiency of the application for relief, the appointment of sick committees, etc., to examine and determine claims for benefits and that such benefits will not be granted until such determination is made, that the applicant shall furnish a physician's certificate, stating the nature and extent of his illness,1 and that such certificate shall be furnished weekly. Such requirements are precedent to the right to receive benefits.5 It is obvious that there should be some method of determining the question as to when relief should be given or denied, to thwart imposition, either by feigned or trivial sickness, or by disabilities produced by causes not entitling the claimant to relief. The regulations respecting sick committees, frequent visits to the applicant for relief, etc., are held to be reasonable and valid. When the claimant cannot be reached personally the society may provide that full evidence of the cause, nature and duration of the sickness or disability shall be furnished. So, in event of dispute, benefits may be withheld until such dispute may be settled by certain officers of

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1 Grosvenor v. United Society, 118 Mass. 90; Thompson v. Adams, 7 Week. N. C. 281; Moxey's Appeal, 9 Week. N. C. 441.

2 See article on By-laws of Voluntary Assns., 23 Am. Law Rev. 390; note to Otto v. Journeyman T. P.

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the association. Thus, where the rule is to refer the sick claim to the trustees for examination and report, no action can be taken until such officers have been given an opportunity to act."

3. Amendments Exacting Additional Requirements on the part of the society have been sustain in the case of a voluntary unincorporated association. It is held that this may be done without notice, where the laws of the societies do not require it. In accordance with this principle an amendment was sustained which required all afflicted members to notify the society of their sickness and furnish a physician's certificate, etc., as against a member who had no notice of the new requirements, and his non-compliance therewith was deemed sufficient to deprive him of the relief. Yet it must be remembered that this was an unincorporated association. The decision proceeds upon the ground that by reason of the want of visitorial power on the part of the court, the ressonableness of the amendment could not be considered. The court confined the examination to the question as to whether or not the amendment had been adopted in the manner previously agreed upon by the members; that is, in accordance with the society's regulations."1

4. Conclusiveness of Society's Decision.While all of the above regulations are uniformly sustained, the adjudications present a decided conflict as to the validity of rules establishing judicatories within the society to pass upon claims for benefits and making their decisions final and conclusive and prohibiting members from pursuing their ordinary legal remedies by appealing to the courts, as in every other instance in the assertion and protection of their property rights they are permitted to do.12 However, the 8 Ex parte Woolridge, 1 B. & S. 844; St. Mary's Ben. Soc. v. Burford, 70 Pa. St. 321.

9 Robinson v. Irish-American Ben. Soc., 67 Cal. 135,7 Pac. Rep. 435, 14 Ins. L. J. 790.

10 McCabe v. Father Matthew's Soc., 24 Han (N. Y., 149, 152.

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