cases where a national bank lent money in excess of its corporate powers, or where an action was brought on a note for which the bank had taken as collateral security something which, by law, it was not authorized to take, or where a bank sought to realize upon such security. In Bank v. Townsend (139 U. S., 67, 76; 11 Sup. Ct., 496), Mr. Justice Harlan, speaking of Bank v. Matthews, which is the leading case on this subject, says: "The decision went upon these grounds: That the bank parted with its money in good faith; that the question as to the violation of its charter by taking title to real 'estate for purposes unauthorized by law could be raised only by the government, in a direct proceeding for that purpose; and that it was not open to the [original] plaintiff in that suit, who had contracted with the bank, to raise any such questions in order to defeat the col(See, also, Thompson v. Bank, 146 U. S. 240; 13 Sup. Ct. 66.) Whether the plaintiff can maintain an action upon an implied contract to pay him the fair value of his services is not open on the pleadings before us, and has not been argued. We are not called upon, therefore, to decide whether the same rule which obtains where a corporation has received money or property under a contract which it is beyond its power to make, and which may be recovered back on an implied contract, applies to the case before us. (See Davis v. Railroad Co., 131 Mass. 258, 275; L'Harbette v. Bank, 162 Mass. 137; 38 N. E. 368; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24; 11 Sup. Ct. 478; Norton v. Bank, 61 N. H. 589.)

lection of the amount loaned."

In a recent issue of the Law Times there appeared an interesting article on "Negligence in the Sale of Poison," relating to the case of Harrop v. Wyley et al. The article discusses the subject from a legal standpoint, and is as follows:

The case of Harrop v. Wyley and others, tried at the recent Birmingham Assizes before Mr. Justice Day and a special jury, deserves notice, as being, as far as the reports show, the only action of its kind which has up to now been tried in this country. It was brought by a widow against Messrs. Wyley, who are wholesale and manufacturing chemists, and Mr.

Brown, who is a retail chemist, to recover damages for the death of her husband from poison. The late Mr. Harrop, a business man, about fifty years of age and in good general health, purchased at the shop of Mr. Brown a dose of phenaticene as a cure for headache. Within an hour of taking it he was dead, poisoned by strychnine. The dose was served out of a bottle supplied to Mr. Brown by Messrs. Wyley, ordered as and labeled "phenaticene," which is a harmless and non-poisonous drug. On being analyzed after Mr. Harrop's death, it was found that the contents of the bottle consisted of phenaticene mixed with about thirty per cent of strychnine. Mr. Brown

had ordered at the same time from Messrs.

Wyley a bottle of strychnine for making up vermin killer; part of the contents of the bottle supplied in accordance with this order, and unused, and on being analyzed were found to duly labelled “strychnine" and "poison," were consist of phenaticene only. The contents of the two bottles had therefore somehow become mixed, but how was not very clear. A coroner's inquest had, of course, been held on Mr. Harrop, and at it both Mr. Brown and the assistants employed by Messrs. Wyley had given evidence to exculpate themselves respectively.

The action, as brought against Messrs. Wyley, was framed in tort only, and was brought under Lord Campbell's Act for the death of by the widow as executrix, claiming damages As he was a man making a good

her husband. income by his work, the damages so claimed were, of course, large. Against Mr. Brown, the retailer, the action was framed in contract as well as in tort. The measure of damages under the two forms of action was, however, very different. For the breach of contract to supply phenaticene as ordered, it was admitted that only such damages as had resulted to Mr. Harrop's estate could be claimed by his executrix. Such damages, in fact, only could have amounted to a few pounds. In order to support a claim under Lord Campbell's Act some wrongful act, neglect or default must be shown, and this the plaintiff was not in a position to do against the retail chemist. Although nominally a defendant, Mr. Brown was called as a witness-the principal witness-for the plaintiff, and narrated very clearly and precisely what

he had done with the drugs he received. He was closely cross-examined on behalf of Messrs. Wyley, with the object of suggesting that the unfortunate mixing of the poison with the phenaticene might be due to some carelessness of himself or his assistants; but the attempt so to shift the responsibility on to him failed. The death from strychnine poisoning was admitted, and there was a strong prima facie case that the poison was sent out by the wholesale chemist in a wrongly labeled bottle. At the close of the plaintiff's case the action was settled by Messrs. Wyley offering a substantial sum for damages and costs, which offer was accepted.

date.

The further argument of questions of some nicety was thereby avoided, and the final decision of the legal consequences of carelessness on the part of persons in the position of the principal defendants was postponed to some future Decisions of our courts have in various cases fixed responsibility on persons who, without any personal culpability, have placed things in themselves dangerous in such a position that third persons have in consequence sustained injury. The only case, apart from contract between the plaintiff and defendants, in which the dispenser of a mischievous drug has been held responsible for injuries thereby caused to a person not the purchaser, is the well-known case of George v. Skivington (21 L. T. Rep. 495; L. Rep. 5 Ex. 1), where damages were recovered for the injurious effects on the plaintiff's wife of a hair-wash sold to him. There, however, though the wife was not a party to the contract, the preparation was sold for her use to the defendant's knowledge, and so the Court of Exchequer held that he was liable for the injury she sustained owing to his want of skill and care, without discussing other grounds at In the recent case at Birmingham, the deceased man was in no sense in the contemplation of Messrs. Wyley when they supplied their customer with the bottle which contained the poison.

at all.

For a precedent for this action we must go to the United States. In 1852 a very similar case was decided by the Court of Appeals in New York, and damages were awarded to an individual against a firm of wholesale chemists who had sent out to a customer of theirs the poison belladona, labeled so as to appear in

nocuous, in consequence of which the plaintiff got a dose of the belladona, by mistake, and was severely injured. This case, Thomas v. Winchester (6 N. Y. Appeals), was decided on the ground that injury to some one was the natural consequence of the issue of a poisonous drug wrongly labeled-whether by sale, or otherwise, made no difference in the opinion of the court-and consequently that the person injured was entitled to maintain an action against the persons who caused the injury. If the case of Harrop v. Wiley had not been settled, the Court of Appeal here, and possibly the House of Lords, might have had to determine whether Thomas v. Winchester is to be considered good law. Sir Frederick Pollock, in his book on Torts, cites it with approval; and the fact that the doctrine there laid down has been instrumental in securing the payment of substantial damages, stamps that approval with the sanction of success. Accidents, such as caused the death of Mr. Harrop, are fortunately rare. may be long before a similar action comes into court.

It

In the report of Dr. Anderson, an appellee before the British Court of Appeals, occurs this paragraph:

"I submitted to the master of the rolls, who was presiding: 'Then if your lordship was to order a policeman in court to bring up to you on the bench a man from the body of the court, and your lordship were then to strike the man in the face, would the striking be a judicial act? And his lordship replied that it would be a judicial act. * * ** On August 7, reverting to the point your petitioner had submitted as to whether striking a man in the face would be a judicial act, Lord Esher said: 'If I were to order a barrister in the court to sit down, and he did not, and I shot at and killed him, I much doubt if proceedings for murder would lie against me.'"

This ruling of Lord Esher is important because the jurist has been described as one of the ablest judges of the British bench.

Possibly a police magistrate of New York had been reading Lord Esher's ruling recently. At all events, it is stated in the New York papers that a Judge Mott of New York said in reference to a case in which a victim of police brutality appealed for protection:

"This man was drunk and disorderly. The

policeman had a right to arrest him, and to use any force that was necessary to get him to the station house, dead or alive. He had a right to club him, if necessary, and even to kill him." This may be good law from a British standpoint, but it is not likely to commend itself to Americans generally. It is a dangerous thing to preach such doctrine in a city like New York, where brutal and unjustifiable clubbings have been all too frequent in recent years. The simple fact that a prisoner is intoxicated does nct, in the opinion of people generally, warrant any policeman in taking the life of the drunken man; and a judge who justifies such murder is not a safe man to have on the bench.

Just at this time, when such justly indignant protests are being made against the lawlessness of lynching mobs of the rougher sections of this country, it may be timely to add also a word of equal protest against the lawlessness of those who are supposed to represent the law. It is an old saying that extremes meet; but who

would have looked to see Lord Esher claim for his court the powers of the Texas lyncher.

REPORT OF COMMITTEE ON REVISION OF STATUTES, BY DANIEL S. REMSEN ESQ.

To the New York State Bar Association:

Your committee on statutory revision having been first appointed some years since with special reference to the revision of corporation laws and having followed the revision of those laws through several legislatures, seeking and making suggestions thereto, had at the last annual meeting supposed its labors were finished. We therefore rested in the calm composure of having performed our duty and having aided in some degree in the improvement of that branch of the statute laws, but this happy frame of mind was not to endure. The last annual report was published and behold we had been transformed into a committee on the re

vision of the statutes generally. We were grieved, for we felt we had earned a rest. But it remained for the chairman of the committee on law reform, who is doing so much on that behalf, to suggest a report. We therefore submit the following:

Municipal; County; Highway; Town; Village; City; Civil Service; Tax; Public Health; Educa tion; Poor; Insanity; Excise; Navigation; Game; Labor; Agricultural; Domestic Commerce; General Corporations; Stock Corporations; Banking; Insurance; Railroad; Transportation Corporations; Business Corporations; Religious Corporations; Membership Corporations; Benevolent Orders; Joint Stock Associations; Real Property; Personal Property;

Wills; Domestic Relations.

Of these, all except Political Divisions, Enumera

tion, State Finance, Prison, Village, City, Civil Service, Tax, Poor, Insanity, Navigation, Labor, Domestic Commerce, Benevolent Orders, Real Property, Personal Property, Wills and Domestic Relations, have been enacted. Of this number general

laws will be introduced this year, relating to Taxa

tion, Real Property, Domestic Relations, Benevolent Orders, Care of the Insane, Care of the Poor, Charitable Institutions, Domestic Commerce and State Finance. Of the remaining number the chapter ou Wills will probably be included in the Code of Civil Procedure. This leaves only nine. It will be observed that these are subjects which can be worked out with comparative ease. Considerable work has already been done on all of these bills, and some of them may be reported to the Legislature of 1897. It is quite possible that the revision of the Code will require a further classification, and some new titles of general laws may be added.

The subject of general charters for cities is already in the hands of commissions charged with the revision of "general city charters, and if these commissions submit proposed general charters, it may dispense with the further consideration of that subject by the commissioners on revision.

There was a revision of the Prison Law in 1889. The adoption of the constitutional amendment on the subject of prison labor, and the creation of a prison commission, seem to have made another revision of the prison law desirable, and that this revision should include the whole subject of penal institutions, including prisons, reformatories, penitentiaries and jails; but it may not be best to undertake this revision until the policy of the State becomes more settled, and especially until the constitutional provision goes into effect, which will not be until January 1, 1897.

The scheme adopted in 1889 embraced the following general laws: Statutory Construction; State; Political Divisions; Enumeration; Indians; Election; Public Officers; Legislative; Executive; State Finance; Public Lands; Canal; Salt Springs; Public Buildings; Prison; Military Code; General

State, but the school law so far as it affects the common schools and the department of public instruction, was revised in 1894 by that department, and a large appropriation was made for the distribution of copies of this law. The laws affecting the universities were revised in 1892. These two recent revisions seem to make it impracticable to take up the