Page:Harvard Law Review Volume 2.djvu/205

 RECENT CASES, 187

wife perfonns the senrices in discharge of & legal obligation, to ber bnsband, as a tense of moral duty would probably induce her to perform them. Still it may be said that the sernces would never have been performed but for her supposed legal status as a wife.

Banks and Banking — Insolvkncv — Draft for Collection. — A draft sent to a bank specially indorsed for collection was paid by the drawee, by check, which the bank collected through the clearing-house. A memorandum was placed with the bank's cash to indicate that the proceeds of the draft were the property of the sender. The bank suspended payment the next morning, and the receiver credited such proceeds to the sender of the draft on the books of the bank. //eU, that the fund was not so mingled that it could not be traced and identified, and that the sender could recover the same. Firs/ Nat. Bank of Montgomery v. Armstrongs 36 Fed. Rep. 59 (Ohio).

For a further discussion of the doctrine above laid down see First Nat, Bank of CirdeviUe v. Bank of Monroe^ 33 Fed. Rep. 409 (N. Y.) ; and In re Arm-- strong, id. 405 (Ohio), digested in 2 Harv. L. Rev. 4S.

Bills and Notes — Protest Notice within Post-office Limits. — An indorser of a note, whose residence and place of business is just outside of the corporate limits of the city where the note is protested, but within a short distance of the post-office of the city, is entitled to personal service of notice of protest; and a drop-letter sent through the post-office, there being no mail- carriers, is insufficient. Brown v. Bank of Abingdon, 7 S. E. Rep. 357 (Va.).

Common Carrier — Railway — Ejection of Passenger for Failure to Produce Ticket. — When a plaintiff, who has bought a ticket on defendants' railway, incorporating by reference to the defendants' by-laws a condition that every passenger shall deliver up his ticket when required or shall pay full fare, having lost his ticket, refuses to pay the fare, and is forcibly removed from the train by the defendants' servants, he cannot recover from the defendant in an action of assault. Such a ticket is not a revocable license to plaintiff to go on de- fendants' land, but is a contract by the defendants that on the plaintiff's paying for the ticket they will carry him between the specified points, and contains no con- dition, either express or implied in fact, giving defendants a right to eject him on failure to produce ticket. The plaintiff, having paid for his ticket, was law- fully on the premises of the defendants, whose only remedy against him was in action for breach of the conditional agreement to pay fare on failure to produce ticket. Butler v. M,S, <fc Z. J^'y Co,, 21 Q. B. D. 207; s. c. 38 Alb. L. J. 191.

It is, in genersd, held that one who attempts to ride on a train without having bought a proper ticket is a mere trespasser, and may be ejected by the company*s servants on refusal to pay fare. IVyman v. R*y Co., 25 N. W. Rep. 349 (Minn.); Godfreys. R'y Co., 18 N. E. Rep. 61 (Ind.). But see Hally, R'y C<7., 5 S. W. Rep. 623 (S. C), which seems to be contra.

There seems to be no previous English authority on the precise point involved in Butler v. I^y Co., as to the rights of a passenger who has bought a ticket but subsequently lost it. The tendency of American law, however, seems to be, in general, contra. Townshendv, I^y Co,, 56 N. Y. 295; Sheltonv, R'y Co,, 29 Ohio St. 214, and Jar dine v. Crowell, 14 Atl. Rep. 590 (N. J.). These cases are, how- ever, imperfectly reported; two of them, at least, may, perhaps, be explained on the ground that a regulation of the company, which seems to be considered as an implied condition in the ticket, expressly required the conductor to eject a pas- senger who failed to produce ticket or pay fare. In the absence of any such express stipulation or regulation, the better view would seem to be that of the English case. A passenger who has lost his ticket cannot be considered a tres- passer. The company contracted to carry him in consideration of his pa3rment of money, and the promise to pay fare on failure to produce ticket when required ; the consideration was not the doing of this act, but the promise to do it. Having thus given consideration for the company's agreement to carry him, he can insist upon its fulfilment, and is not a trespasser on their land ; the breach of his con- ditional promise only gives the company a right of action against him.

See Hall v. Fy Co,, 15 Fed. Rep. 57, and note, for a discussion of the general subject of rights of passengers.

Constitutional Law — Compelling Defendant to be a Witness AGAINST Himself. — To order the defendant in a trial for murder to stand up, during the trial, for identification by one of the witnesses, is not a violation of a constitutional provision that *' no person shall be compelled in any criminal case to be a witness against himself." Feople v. Goldenson, 19 Pac. Rep. 161 (Cal.).