court in refusing to confirm the sale and ordering a new one, on a tender of bids twenty-five and thirty per cent. in advance of the selling price, and on application of nearly all the creditors interested. The court said in part:

cases.

"Accident, mistake or surprise, without fault, is a recognized ground for equitable relief in such The definition of 'accident' given in Smith, Man. Eq. Jur., p. 36 (a definition approved in Pom. Eq. Jur., p. 285), is this: 'An unforseen and injurious occurrence, not attributable to mistake, neglect or misconduct.' Story thus defines it: By the term "accident" is intended, not merely inevitable casualty, or the act of Providence, or what is called technically "vis major," or "irresistible force;" but such unforeseen events, misfortunes, losses, acts or omissions as are not the result of any negligence or misconduct of the party.' Story, Eq. Jur., § 78.

"The facts bring this case under either definition. Through an unforeseen failure of arrangements, upon which these bidders could have reasonably relied, this property has been sacrificed. Relief in such cases, by reopening the biddings, is not extended because a party who desired to buy has probably lost a bargain. The ground for relief is the loss sustained by those interested in the sale of the property at its best price. All, or about all, of the creditors of this hopelessly insolvent railway unite in asking to have the biddings reopened. The purchaser at the master's sale only objects. Under such circumstances, ought this bid to have been accepted? There is a margin within which the sound legal discretion of the circuit court will not and should not be disturbed by an appellate court in such matters. There was no abuse of the legal discretion which may be reasonably exercised where a greatly inadequate price has resulted from circumstances which could not have been reasonably foreseen. The equity of the owners and creditors, under the facts of this case, is greater than the equity of the purchasers to have this bid accepted. Neither is the stability of masters' sales disturbed by reopening the biddings, where a greatly inadequate price has resulted from accident, mistake or surprise, without fault of those applying for a resale. The supreme court seems to recognize such a rule as sound and expedient. Mining Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. Rep. 887; Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. Rep. 686. It has the support of the practice in the circuit courts, so far as that is ascertainable by the reported cases. Bank v. Taylor, Fed. Cas. No. 854; Blackburn v. Railroad Co., 3 Fed. Rep. 690; Fidelity Trust & Safety Vault Co. v. Mobile St. Ry., 54 Fed. Rep. 27; Fidelity Insurance, Trust & Safe Deposit Co. v. Roanoke Iron Co., 84 Fed. Rep. 752.

"Under the English practice no advance of price after confirmation was deemed sufficient, but such advance was deemed a strong auxiliary if there also appeared other circumstances. 2 Daniell, Ch. Pl. & Prac. (4th Am. Ed.), p. 1288; 1 Sugd.

Vend. (9th Eng. Ed.), 76, 77. Thus biddings were opened after confirmation upon an advance bid, upon the ground that the owner of the property, who joined in the motion, was in prison at the time of confirmation, and was told by two persons that they would direct their agent to open the biddings. Watson v. Birch, 2 Ves. Jr. 50. This case was criticised by Lord Eldon in Morice v. Bishop of Durham, 11 Ves. 57; and in White v. Wilson, 14 Ves. 151, the rule was laid down that no sale, after confirmation, would be disturbed unless there was misconduct upon the part of the person obtaining confirmation. But, as an illustration of 'accident, fraud or mistake,' it is of value as an authority, under a practice which allows a reopening of biddings before confirmation upon such ground. In Williamson v. Dale, 3 Johns. Ch. 290, Chancellor Kent, though refusing to adopt the English practice of opening biddings before confirmation, ordered a resale upon the ground of surprise; it appearing that the owner of the property was innocently misled and induced to believe that the premises would not be sold upon the day appointed. In Roberts v. Roberts, 13 Gratt. 639, a sale was set aside upon the ground that, on account of the great inclemency of the weather, several intending bidders were kept away. The purchaser was the only bidder present, and he lived upon the premises. In Dewey v. Linscott, 20 Kan. 684, biddings were reopened where the mortgagee's agent had instructions to bid the property to its value, and was unable to attend, being called away under judicial process, the property having sold at a greatly inadequate price. In Littell v. Zuntz, 2 Ala. 256, a sale after confirmation was set aside, having been made during the prevalence of a yellow fever epidemic. In Seaman v. Riggins, 2 N. J. Eq. 217, a sale was set aside on application of a second mortgagee, who had been innocently misled as to the place of sale, and had, on that account, not been present. That the purchaser, who stood fair before the court, should be reimbursed his costs and reasonable expenses, is clear. This those resisting confirmation offered to do, and this was directed by the decree reopening the biddings. The practice was right. Williamson v. Dale, 3 Johns. Ch. 290. The decree will, in all respects, be affirmed."

CHATTEL MORTGAGE-DRUGGISTS' PRESCRIPTIONS.-In Stewart v. Hirsch, 50 S. W. Rep. 583, decided in the Court of Civil Appeals of Texas, it appeared that a mortgage was of all of a stock of drugs, medicines, etc., and merchandise of every kind, soda water fountain and fixtures, ice cream freezer, office furniture, counters, fixtures, and apparatus, of every kind and description whatever. It was held not to include a file of prescriptions which had been filled. It was further held that where the testimony shows that, though the persons depositing prescriptions with a druggist have a qualified right to use them if asserted, yet, as to third persons, the druggist was entitled to them, his transferee could recover their value

in an action for conversion. The court said in part: "We agree with the district judge that the deed of trust to Roberts did not convey the prescriptions. These were not 'merchandise' in the usual and understood sense of that term, and did not come within any of the items specified. It could with as much reason be claimed that books of entry and book accounts would have passed under the designation of merchandise. There were no facts that would present a case of estoppel of Hertz to claim the prescriptions of the purchaser, and there is no assignment that so contends. The court concluded, from the testimony of the witnesses, that accumulated prescriptions were frequently sold along with the good will of the business; thus, in effect, finding that they did not, according to custom, pass by a sale of the stock of goods. It appears that, after the sale by the trustee, Hertz (the druggist) assigned them to Hirsch (the appellee), who made demand for them, and, upon a refusal to deliver them, brought this suit in conversion for their reasonable value. The contention of appellants is that such property is not a subject of transfer, for the reason that they are the property of the respective persons depositing them, and the druggist held them in the capacity of trustee or bailee for them; and that Hertz, although he might be allowed to recover the specific property, could not sell the prescriptions to another, and confer upon the other a right of property therein, to enable him to sue for their value. Evidence was heard by the court, very properly, we think, to explain the relation of druggists to the prescriptions left with them. There was testimony tending to show that there was a qualified right to the use of the prescription in the person depositing it, if asserted; but, otherwise, and between the druggist and third persons, the druggist was entitled to them. This was, in effect, the conclusion of the trial judge. That they were of value to the druggist is amply shown. We are of opinion that, upon a conversion of such property, the druggist himself would not have been restricted to an action for the specific property, but could have recovered the value thereof. He had a right of property in the prescriptions, and any such rights are transferable in this State."

CONSTITUTIONAL LAW-CRIMINAL LAW-Ex POST FACTO LAWS-LESSER PENALTY.-In McGuire v. State, 25 South. Rep. 495, it was held by the Supreme Court of Mississippi, that the imposition of a different, but not a greater, punishment for a crime does not make a statute ex post facto as applicable to crimes previously committed. It was accordingly decided that life imprisonment is not a greater punishment than the death penalty, so as to make a statute changing the punishment for murder from death to life imprisonment, at the option of the jury, ex post facto as applicable to previous crimes. The court said in part: "It is claimed that the Act of April 5, 1872, operated as a statutory pardon of the de

fendant, because it authorized the jury to fix the punishment for murder at imprisonment for life in the penitentiary, instead of leaving it to the court to adjudge the death penalty unless such imprisonment be fixed by them, and contained no saving clause as to former offenses. Our State constitution forbids the enactment of ex post facto laws, and, if the act of 1872 falls within that category, the defendant is entitled to a discharge. Ex post facto laws are defined as follows: '(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. (2) Every law that aggravates a crime, or makes it greater than it was when committed. (3) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. (4) Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence, for the purpose of conviction." Chase, J., in Calder v. Bull, 3 Dall. 386. If the act of 1872 is ex post facto as to the defendant, it is because the case falls within the second or third class enumerated in Judge Chase's opinion, and because the death penalty is less than imprisonment for life. It was in 1872, as it is now, a matter of common knowledge that many persons, when called upon to qualify themselves for jury service in capital cases, declared themselves opposed to capital punishment, and the fifth section of the act of 1872 was intended to obviate the scruples of those conscientiously opposed to the inflicting of the death penalty, some of whom believed that that penalty should not be inflicted in any case, nor could be rightly imposed by human authority; and it was unquestionably the opinion of the legislature that life imprisonment in the State penitentiary was a mitigation of the death penalty. Christian people have always regarded the infliction of death as the extreme penalty for crime, and such opinion necessarily results from the principles of their religion. There are courts which hold that any change in the mode of punishment makes the law ex post facto, but other authorities coincide with the opinion expressed by Judge Chase in Calder v. Bull (ubi supra), and hold that it is the infliction of a greater punishment that makes the law ex post facto, while the infliction of a different punishment, unless it also is a greater one, does not so operate. In passing the act of 1872, we are satisfied that the legislature considered life imprisonment a more merciful punishment than death, and we fully believe the general sentiment of the Christian world approves the opinion.

LIQUI

CONTRACT - BUILDING CONTRACT DATED DAMAGES.-In Kelly v. Fejervary, 78 N. W. Rep. 828, in the Supreme Court of Iowa, it was held that a contract for erecting a building for the known intended use as a home for aged men, constructed so as not to be available to rent, and providing, for delay in completing the building after a certain time, that "the contraator shall pay to the owner $10 for every day thereafter that the said work shall remain unfinished, as and for liquidated damages," and that if the contractor by delay cause any damage for which the owner shall become liable he shall make good to the owner "any such damage over and above any damage for general delay herein otherwise provided," is for the court to construe, and is properly construed to provide for liquidated damages, rather than a penalty. The court said in part: "In view of the language of that contract, and the known purpose for which the building was erected, it seems quite clear that the parties did not understand paragraph 6 as providing for penalty. While it is possible that the building could have been used for residence or boarding house purposes for a small rental, it is entirely clear that the parties never contemplated such a use. The building was constructed for a particular use. It would be difficult, if not impossible, to estimate the value of that use with accuracy, and, therefore, the parties, to avoid that difficulty, provided for liquidated damages for delay in completing the building, and actual damages for liabilities incurred by the owner to others by plaintiffs' delay. There is a slight conflict as to whether the building could have been rented at all, and at what rental; but this does not change the fact, manifest from the contract and the intended use, that the contract is for liquidated damages. In view of the known use intended, this contract is the same as if it had been for the erection of a church or other building not usually rented. As it would be difficult to estimate the rental value of a church, such a provision as this contract contains would be held to have been intended as liquidated damages, while as to residence or tenement houses, the rental of which could be ascertained, it might not. See McIntire v. Cagley, 37 Iowa, 676; Wolf v. Railway Co., 64 Iowa, 380, 20 N. W. Rep. 481; De Graff, Vrieling & Co. v. Wickham, 89 Iowa, 720, 52 N. W. Rep. 503, and 57 N. W. Rep. 450; Sanford v. Bank, supra. There was no error in the court assuming to construe this contract, nor in construing it to be a contract for liquidated damages."

MUNICIPAL CORPORATION-UNGUARDED POND -LIABILITY FOR DEATH OF CHILD BY DROWNING.-In Schauf's Admr. v. City of Paducah, 50 S. W. Rep. 42, before the Court of Appeals of Kentucky, it was held that a city is not liable for the death by drowning of a boy seven years old from wading out about ten feet into a pond in the commons within the city limits. The court said in part: In Gillespie v. McGowan, 45 Am. Rep.

365, a boy eight years old, while fishing in a well in an old brickyard, fell in it and was drowneda stronger case for the plaintiff than we have here -yet it was held that there could be no recovery. The court said: We are unable to see anything in this case to charge the defendants with negligence in not inclosing their lot or guarding the well. There was no concealed trap or dead-fall, as in Hydraulic Works Co. v. Orr, 83 Pa. St. 332. The well was open and visible to the eye. No one was likely to walk into it by day, and this accident did not occur at night. A boy playing upon its edge might fall in, just as he might in any pond or stream of water. In this respect the well was no more dangerous than the river front on both sides of the city, where the boys of all ages congregate in large numbers for fishing and other amusements. Vacant brickyards and open lots exist on all sides of the city. There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property to inclose it, or fill up their ponds, and level the surface, so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is a part of a boy's nature to trespass, especially where there is tempting fruit; yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy trespasser may fall from its branches. Yet, the principle contended for by the plaintiff would bring us to this absurdity, if carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents.' To the same effect, see 2 Shear. & R. Neg. sec. 715; Bish. Non-cont. Law, secs. 845, 854, and cases cited."

CRIMINAL LAW-INDICTMENT-DISINTERMENT OF BODY FOR DISSECTION.-In State v. Fox, 50 S. W. Rep. 98, decided by the Supreme Court of Missouri, the defendant was charged under an indictment containing two counts: (1) That the corpse was disinterred and removed for the purpose of selling the same; (2) that the remains were disinterred and removed for the purpose of dissection, and, surgical and anatomical experiment and preparation. Defendant was convicted under the second count, and the court of appeal, in reversing the judgment, because it was without evidence to support it, uses the following language: "The evidence showed conclusively, we think, that defendant dug up and removed the dead body of Leona Gates from the grave in which it had been interred; but what his intent was in so doing, whether for the purpose of dissection, or surgical or anatomical experiment or preparation, if either, we must look to the evidence, if

any, to determine. While the evidence showed that defendant was a student of medicine, and that he stated to J. F. Wood, who was present at the time he dug up the body, and assisted him in carrying it away, that his professor at Kansas City would give $50 for such a subject to work on, the evidence did not show that he dug up the body either for the purpose of dissection, or surgical or anatomical experiment, some one or more of which was necessary in order to his conviction. In State v. Baker, 144 Mo. 329, 46 S. W. Rep. 194, the defendant was indicted under the same statute. The indictment was in three counts. He was charged in the first count with digging up the body for the purpose of selling it, in the second for the purpose of dissecting it, and in the third for the purpose of surgical and anatomical experiment and preparation. The court held that there was no evidence that defendant dug up the body for either of the purposes charged in the indictment, and that the case 'must fall because, the defendant having been indicted for the violation of specific statutory provisions, the evidence must establish one of the acts denounced as criminal.' See, also, State v. Fox, 136 Mo. 139. The statute does not make the person removing the dead body or remains of a human being from the grave or other place of interment or sepulture guilty of a criminal offense, but, in order to do so, it must be made to appear that it was done for one of the purposes mentioned therein, and such purpose cannot be inferred from the mere fact of the digging up and having in possession such body. In State v. Gibson, 111 Mo. loc. cit. 99, 19 S. W. Rep. 982, it is said: Where the statute makes an offense to consist of an act coupled with a specific intent, the doing of the act raises no presumption that the act was done with the specific intent; but such intent, as well as the fact, must be found by the jury as a matter of fact, before a conviction can legitimately result.' The court further said, on page 102, 111 Mo., and page 983, 19 S. W. Rep. 'Where a specific intent is required to make an act an offense, the mere doing of the act will not raise the presumption that it was done for such prohibited purpose.' Lawson, Pres. Ev. p. 271, and People v. Plath, 100 N. Y. 590, 3 N. E. Rep. 790, are cited in support of this 'elementary rule. See, also, State v. Johnson, 115 Mo. loc. cit. 496, 22 S. W. Rep. 467. If the defendant is guilty of any offense under the statute and the evidence, it is that of mere wantonness, with which he is not charged in the indictment."

LIABILITY OF A CORPORATION RECOVERING ITS PROPERTY FROM A RECEIVER FOR THE LATTER'S TORTS.

That a party should be held liable for the torts of another when the two are in law absolute strangers, no contractual or other re

lation existing between them, and neither directing or being subject to the other, seems at the first glance an anomalous statement. It is, however, correct and applicable under proper restrictions in the case of the restoration to a corporation of its property which has been in the possession of a receiver. The owner of property thus recovering its possession may be rightfully liable for the torts of the receiver and his servants which occurred before his discharge, and when the owner had no control of the receiver or of the property.

6

The courts and text writers have not always adopted this doctrine. It has developed from comparatively recent cases, and the application therein of the proper controlling rules of law. There is abundant authority for the statement that when the property of a corporation, for instance, is in the hands of a receiver, who has full possession of its property and entire charge of its affairs, the corporation is not liable for damages or injury caused by the acts of negligence of such receiver or of his agents or employees."'1 And this has led to a wide adoption of a view of the law which entirely releases succeeding parties in control of the property from all liability for the receiver's torts.

An illustration will show the want of equity and justice in the broad application of such a rule.

Should it be the case, for instance, that a railroad or an industrial plant, or other property that has been for some time in full possession of a receiver and under his control, is restored by amicable adjustment or other settlement of the suit to the owner, or by order of court is given over to a purchaser or to another receiver, and should it also be the case that, preceding the change, the retiring receiver, who gets a complete discharge, through the tortuous acts of himself, or of his agents or employees, wrongfully kills the child, or breaks the leg, or burns the house of a man who has not time to bring suit before the receiver is discharged, is the injured party to have no relief? Unless the

1 Washington, etc. R. Co. v. Brown, 17 Wall. 445; Am. & Eng. Ency. of Law, vol. 20, p. 387; Leathers v. Shipbuilders' Bank, 40 Me. 386; Davis v. Duncan, 19 Fed. Rep. 477; Metz v. Buffalo, etc. R. R. Co., 58 N. Y. 61; Godfrey v. Ohio, etc. R. R. Co., 116 Ind. 30; Turner v. H. & M. R. R. Co., 74 Mo. 602; O. & M. Ry. Co. v. Russell, 115 Ill. 52; O. & M. Ry. Co. v. Davis, 23 Ind. 553; Wyatt v. O. & M. Ry. Co., 10 Brad. 289; Memphis Ry. Co. v. Stringfellow, 44 Ark. 322; Fletcher v. Weston, 10 Allen, 9; Felton v. Deall, 22 Vt. 170.

party coming into possession is liable, there can be no recovery for the damage or injury, inasmuch as the receiver, being discharged, is not liable, and the claim does not follow the person of the receiver, but follows the property or fund, which alone must satisfy the claim.2

Where a corporation whose property has been in the possession of a receiver regains possession, the corporation is justly held liable for the torts of the receiver for the following reasons: (a) The appointment of a receiver to manage the business of a corporation does not dissolve the corporation, which still exists, with its powers not enlarged or restricted, and may still exercise its franchises. Its capacity of being sued is not affected. The receiver is legally the agent of the company, although under the direction of court, and has only the temporary management of the company's affairs. The title to the property is not affected.3 (b) The property being restored with improvements, or the net income being applied to the permanent improvements of the property, the company regaining again its possession of said property is liable for accidents or torts during receivership, by reasons of the earnings and income having been so invested to the benefit of the property. (c) Damages for injuries to persons or property during the receivership, caused by his torts or those of his agents or employees, are classed as operating expenses, and given the same priority of payment as belongs to other necessary expenses of the receivership, and when the receiver is

2 Gluck & Becker on Recs. of Corporations, sec. 87, also sec. 98 and cases cited in above sections; High on Recs. (2d Ed.), sec. 398 b; Beach on Recs., secs. 720, 735; Mobile & O. R. R. Co. v. Davis, 62 Miss. 271. 3 Beach on Recs., sec. 335; Am. & Eng. Ency. of Law, vol. 20, p. 125, and cases cited; Heffron v. Gage, 149 Ill. 182; Safford v. People, 85 Ill. 558; R. R. Co. v. Beggs, Id. 86; Bloomfield R. R. Co. v. Van Slike, 167 Ind. 480; R. R. Co. v. Russell, 115 Ill. 52; Wyatt v. O. & M. Ry. Co., 10 Brad. 289; Rep. Life Ins. Co. v. Swig. gert, 135 Ill. 176; Kincaid v. Dwinelle, 59 N. Y. 548; O. & M. R. R. Co. v. Fitch, 20 Ind. 499.

4 Cook on Stock, Stockholders & Corporation Law (3d Ed.), sec. 875, note 2, pp. 1447-1448; Am. & Eng. Ency. of Law, vol. 20, p. 389; Texas, etc. R. R. Co. v. Johnson, 76 Tex. 461; Brown, Rec., v. Gay, 76 Id. 444; Texas, etc., R. R Co. v. White, 18 S. W. Rep. 481; Brown v. Rosedale St. Ry. Co., 15 S. W. Rep. 120; Texas, etc. Ry. Co. v. Geiger, Id. 214; Texas, etc. Ry. Co. v. Bloom, 20 S. W. Rep. 133; Bloomfield R. R. Co. v. Van Slike, 167 Ind. 480; R. R. Co. v. Comstock, 83 Tex. 537; Boggs & Bro. v. Brown, Rec., 82 Tex. 41.

discharged his successor in possession of the property is liable."

6

The Supreme Court of Illinois, a few years since, said: "The corporation itself having no control over either the receiver or his servants is not, in the absence of an absolute liability imposed upon the company by statute, responsible for the negligence or torts of the employees of the receiver, and no suit for damages occasioned thereby can be maintained. These rules of law are well settled and have been held in many adjudicated cases, and are laid down in the text-books." In the same case, however, it was distinctly held that an action of law can be maintained against one receiver for the torts of the servants of his preceding receiver in the same receivership; that it is a liability enforceable against the fund and property which was the subject of the trust being administered and followed such fund; that the judgment in such case is in the nature of one in rem and the res is the matter of the receivership, and that a plaintiff should not be deprived of his action and of the right of trial by jury because one receiver succeeded another. From this reasoning, if a receiver is liable for the torts of a preceding receiver, and if a change of receivers cannot defeat the plaintiff's rights, then surely a company regaining its property from a receiver, the property having been improved and bettered, cannot escape liability for the torts of the receiver or his agents.

When in December, 1898, the subject-matter of this article came again before the Supreme Court of Illinois, Justice Magruder, speaking for the court, said: "If a corporation thus regaining possession of its property is not liable for the receiver's torts, great and irreparable injustice would be done in many cases." He distinguishes the McNulta case above referred to and further says: "As a receiver is not personally liable for the torts of his servants, but only liable in bis official

5 Am. & Eng. Ency. of Law, vol. 20, 385, and cases cited; Green v. Coastline R. Co., 97 Ga. 15; Sloan v. Cent. Iowa Co., 62 Iowa, 728; Mo., etc. R. R. Co. v. McFaddin, 89 Tex. 138; Yoakum v. Croeger and Wife, 27 S. W. Rep. 953; People v. Yoakum, 7 Tex. Civ. App. 85. See also in respect to claims arising during a receivership which is terminated: Farmers' L. & T. Co. v. Cent. R. Co., 7 Fed. Rep. 537; Burnham v. Bowen, 111 U. S. 776; Mikkelson v. Truesdale (Minn.), 65 N. W. Rep. 260.

6 McNulta v. Lockridge, 137 Ill. 270.

7 Bartlett, Admr., v. Cicero Light, Heat & Power Co., 177 Ill. 68, 48 Cent. L. J. 116.