*

public concern, and be subject, in consequence, to governmental regulation. And they demonstrate * that the attempts made to place the right of public regulation in cases where it has been exerted of which we have given examples, upon the ground of special privilege conferred by the public on these affected, cannot be supported. The underlying principle is that business of certain kinds hold such a peculiar relation to the public interest that there is super-induced upon it the right of public regulation."

The extraordinary circumstances of war may bring particular business and enterprises clearly into the category of those which are affected with a public interest and which demand immediate and thoroughgoing public regulation. The production and distribution of foodstuffs, articles of prime necessity, those which have direct relation to military efficiency, those which are absolutely required for the support of the people during the stress of conflict, are plainly of this sort. Reasonable regulations to safeguard the resources upon which we depend for military success must be regarded as being within the powers confided to Congress to enable it to prosecute a successful war.

In the words of the Supreme Court:

"It is well settled that the Constitution is not self-destructive. In other words, that the power which it confers on the one hand it does not immediately take away on the other."10 This was said in relation to the taxing power. Having been granted in express terms, the Court held it had not been taken away by the due process clause of the fifth amendment. As the Supreme Court put it in another case: "The Constitution does not conflict with itself by conferring upon the one hand a taxing power and taking the same power away on the other by the limitations of the due process clause."11

Similarly, it may be said that the power has been expressly given to Congress to prosecute war, and to pass all laws which shall be necessary and proper for carrying that power into execution. That power explicitly conferred and essential to the safety of the nation is not destroyed or impaired by any later provision of the Constitution or by any one of the amendments. These may be construed so as to avoid making the Constitution self-destructive, so as to preserve the rights of the citizen from unwarrantable attack, while assuring beyond all hazard the common defense and the perpetuity of our liberties.

COX, P. J. The husband of Margaret Most was killed by accident while in the employ of the Goebel Construction Company, at a time when there was in force an employers' liability policy issued by the Massachusetts Bonding & Insurance Company to the Goebel Construction Company. Appellant sued the Goebel Construction Company and recovered judgment, and, failing to collect this judgment on account of the insolvency of the Goebel Construction Company, brought this suit seeking to hold the insurance company liable to her, and asking that judgment be rendered in her favor against the insurance company for the amount due on her judgment against the Goebel Con

pellants' contention in this case. In those cases the insurance company had by their conduct assumed a position inconsistent with the defense attempted to be made when sued on their policies, and that feature which was the controlling one in those cases is absent in this case. In the case of Maryland Casualty Co. v. Peppard, Okla., 157 Pac. 106, L. R. A. 1916E, 597, cited, the policy did not contain the "no action" clause, hence it is not in point. Our conclusion is that the policy involved in this case is an indemnity policy, and that there was no waiver of the "no action" clause, and this makes it unnecessary to pass upon the question of what the rights of plaintiff might have been if the policy had been a general liability policy, and on that question we express no opinion.

The judgment is for the right party, and is therefore affirmed.

STURGIS and FARRINGTON, JJ., concu

NOTE.-Effect of Indemnity Company Defending Suits Brought Against Indemnitee.-The theory of an employers' liability company interposing itself between a plaintiff and a defendant, the latter of whom it has engaged to protect as regards any loss within its engagement to the defendant, several times has been considered by this Journal. 76 Cent. L. J. 73; 77 id. 369; 78 id. 235; 79 id. 39, 218; 80 id. 247; 82 id. 116; 83 id. 356; 84 id. 431.

This consideration has proceeded upon the right of the plaintiff not to be interfered with by a third party in the pursuit of his rights, estoppel against indemnitor arising out of its interposition, loss to plaintiff when damage is proximately caused, as where defendant could have been made to pay if not interfered with by the indemnitor, and rights of indemnitee where action was not properly defended, and, incidentally, the position of indemnitor as a common barrator was touched upon. The instant case follows, we believe, the greater number of cases in enforcement of the literalness of indemnitor's contract. But there appears in many dissenting opinions in courts sustaining this view an appreciation of an anomalous situation arising out of such interposition.

In Anoka Lumber Co. v. Fidelity, etc., Co., 63 Minn. 286, 65 N. W. 353, 30 L. R. A. 689, action was brought by assignee of indemnitee against indemnitor, the judgment against the former coming under the latter's policy being unpaid. This assignee was the plaintiff in that judgment. The court directed judgment in his behalf and this was affirmed. The action was defended by indemnitor upon the ground that the judgment had not been paid by indemnitee. The court said: "The company takes upon itself the settlement of loss and the control of all legal proceedings and the assured is forbidden to settle any claim or incur any expense without its consent in writing. ***If the plaintiff is forbiden to settle a claim for an accident of this kind, we fail to see how it is imperative upon him to pay a judgment rendered against him upon such a claim, as a condition precedent to his right of recovery."

In Hoven v. Employers' Liability, etc., Corp., 93 Wis. 201, 69 N. W. 46, 32 L. R. A. 388, it was said, in effect, that the condition that the indemnitor shall have entire charge of the case, fixes its obligation to discharge a claim within the policy.

In Sanders v. Frankfort, Maine, etc., Ins. Co., 72 N. H. 485, 57 Atl. 655, 101 Am. St. Rep. 688, the suit was by the employe, who had recovered a judgment against an indemnitee, against the indemnitor, plaintiff's judgment remaining unpaid. In alluding to the two cases above referred to it was said that they, while not authority for the position that the policy in this suit is a policy for indemnity against liability generally, yet they are authority for the proposition that these provisions are consistent with an intention to assume the liability. By these stipulations, the insurers not only reserve the right to perform their contract of indemnity in a particular way, but agree that they will perform it." Considering the case before it, it was said: "The plaintiff's case stands upon the legal result of the assumption of liability by the company. Because they assumed -in legal effect agreed to pay the assured's liability to this plaintiff to the extent of five thousand dollars, equity requires them to perform their agreement by payment to him." Here the recovery by the employe is put upon an equitable ground, and one that is well recognized-recovery on a promise made for benefit of a third party.

In Patterson v. Adan, 119 Minn. 308, 138 N. W. 281, 48 L. R. A. (N. S.) 184, there was garnishment of indemnitor on an unpaid judgment recovered against indemnitee. It was said: "By undertaking the defense, the company elected to treat plaintiff's cause of action, if he had any, as covered by its contract; and when it substituted itself and its judgment for that of the defendant, both plaintiff and defendant have a right to insist that the final judgment establishes the liability and debt of the company to the assured. The undertaking to defend is of no value, and may be of great danger, to the assured, where he thus abandons all control of the suit to the company, if it does not mean that whatever liability is established shall be discharged. The company admits that where the assured is perfectly solvent, the practice of the company is to carry the defense to a successful issue by paying the judgment without stopping for the assured to pay it. It is even more important to an assured who is in financial stress that no judgment be allowed to stand unsatisfied against him than it is to one who has abundant means to satisfy it." Considering then the "no action" clause of the policy, the court, after reasoning, says: "We therefore hold that in a policy such as this, where the company has come into the litigation and assumed exclusive control thereof under its contract, it recognizes a liability, if it fails to defend successfully, to pay the assured the amount of the judgment it so permits to be established. not exceeding the sum stipulated in the policy. *** Payment of the judgment in such case is a mere pro forma matter, and not a condition precedent to its liability to defendant under plaintiff's garnishee proceeding." We doubt whether this principle rightly confines itself to amount in the policy. If the indemnitor takes charge of litigation, plaintiff in the action has the right to

his say as to how far indemnitor commits itself to payment of the entire recovery.

But courts, it must be admitted, have not read into these policies such obligation as the cases above referred to have evolved. They themselves may be thought to be weakened by the fact that indemnitors are allowed to appear and bear the expense of litigation, in which they have merely a collateral interest. That it may offend public policy seem to this writer quite evident, but this view has not been taken by the courts. Nor have courts at all discussed such contracts of indemnity as one in which plaintiffs can have any interest. C.

CORRESPONDENCE

AUTHORITY FOR THE QUOTATION, “THIS IS A GOVERMENT OF LAWS, NOT OF MEN."

Editor, Central Law Journal:

Referring to inquiry relative to origin of saying, "This is a government of laws, not of men," Sir William Murray once declared: "This is a government of laws; not a government of men or the mob." Edmond Burke about the same; and briefer statement by "Junius," taken from Cicero, and he from Horace. Blackstone teaches the same thing in his "definition" of law. Your Nebraska correspondent in attacking this is wrong in his own state of Nebraska, but he would be right in Mexico, and now in some parts of Europe. STEPHEN D. PARRISH.

Richmond, Ky.

BOOKS RECEIVED.

United States Statutes Annotated. Vol. 5. Editor-in-Chief, Bruce Barnett, of the Kansas City, Mo., Bar. Associate Editors, Wm. E. Shirley, Dayle C. McDonough, Myron Witters, Samuel E. Swiggett, Jos. E. Brown, L. C. Harper, John Parry and Paul Barnett. Chicago, Review will follow.

Corpus Juris. A Complete and Systematic Statement of the Law as Embodied in and Developed by all reported decisions. Edited by William Mack, LL. D., Editor-in-Chief of the Cyclopedia of Law and Procedure, and William and the Encyclopedia of Pleading and Practice. Volume XI. New York. The American Law Benjamin Hale, LL. B., Contributing Editor of the American and English Encyclopedia of Law Book Co. Review will follow.

HUMOR OF THE LAW.

An Irish magistrate, one of the old school, was summing up a case in a Dublin court. The plaintiff was a handsome woman and her goodlooking daughter was one of the witnesses.

"Gentlemen of the jury," said his honor, "everything in the case seems plain-except, of course, Mrs. O'Toole and her charming daughter."-Liverpool Post.

Joseph H. Choate, one-time ambassador to Great Britain, circulated some years ago a story which immediately became famous for the reason that it so clearly and with such fine humor branded the refusal of our government to furnish its foreign representatives with permanent residences. It happened that he was walking the streets of London late one particularly damp and disagreeable night, when suddenly a police officer accosted him and suggested that he had better be hurrying home Whereupon Mr. Choate made the astounding reply: "I have no home. I am the American ambassador."-The Forum.

A French soldier fighting in the Argonne has just been informed that he has inherited $40,000 from a retired army officer of eccentric habits who lived in the same village as the soldier.

The officer's will ran: "Being without family, I leave the whole of my fortune to Paul -, farmer. I desire thus to show my gratitude to him for having for many years listened patiently and with every air of interest to the story I used to tell of how I lost my right arm in the war of 1870.

"I pray and trust that he will be spared to return to his village after the war, and my only request to him is to come occasionally to my tomb and there relate some of his own war experiences."

2.

Animals-Damages.-The cost of restoring realty to its former condition and compensation for loss of use is the measure of damages for injury thereto but if such cost is more than diminution in the market value, the latter is generally the true measure of damages.-Harris v. Gray, Okla., 165 Pac. 1148.

3. Bankruptcy-Burden of Proof.-The trustee in bankruptcy of a stockholder cannot maintain bill to have other shares of stock returned for alleged fraudulent issuance, in the absence of showing that the value of his own stock depreciated or that the necessary working capital was impaired by the alleged fraudulent transaction. Abele v. S. A. Meagher Co., Mass., 116 N. E. 805.

4.- Conditional Sale. Under Bankruptcy Act, § 47a (2), as amended by Act June 25, 1910, § 8, and Comp. Laws Alaska 1913, § 973, mining plant, placed on mining claim under contract amounting to conditional sale, held not to pass to trustee in bankruptcy of mine owner.-In re Seward Dredging Co., U. S. C. C. A., 212 Fed, 225.

5.

-Fraternal Association.-Under Bankruptcy Act, § 4, subd. "b," unincorporated fraternal beneficial association, whose chief object was beneficial, rather than social, held subject to be adjudged a bankrupt.-In re Order of Sparta, U. S. C. C. A., 242 Fed. 235.

6. Fraudulent Transfer.-In action by bankruptcy trustee to avoid fraudulent corporate transfers under Bankruptcy Act, § 70, cl. "e," authorizing him to avoid transfers which any creditor might have avoided, whether transfers were fraudulent depends, not upon Bankruptcy Act, but upon laws of state where trans. fers were made. Woodman v. Butterfield, Me. 101 Atl. 25.

7. Banks and Banking-Usury.-Where money is advanced by a bank, and the transaction is in substance a loan, though in form a discount of securities, and the amount taken out for the use of the money is in excess of the legal rate of interest, the transaction is usurious under Code 1907, § 4624.-Hudson V. Repton State Bank, Ala., 75 So. 695.

8. Bills and Notes-Due Course of Business.If a note sued on was commercial paper.complete and regular on its face which plaintiff purchased in good faith in the regular course of business for value before maturity and without notice of any defect of title or defense set up by defendant, plaintiff is entitled to recover.— Hudson v. Repton State Bank, Ala., 75 So. 695. 9. Notice of Defect.--Holder with no actual notice of defects in title of negotiable instrument, when circumstances come to his knowledge sufficient to put him upon inquiry, is chargeable with knowledge of all facts that inquiry would reveal.-Monk v. Twenty-Third Ward Bank, N. Y.. 165 N. Y. S. 1055.

10. Pleading and Practice.-There is no variance between a complaint alleging that defendant made his note payable to the order of another as attorney and agent of plaintiff, and proof that the note was simply made to such other person, since the words in the complaint "attorney and agent for the plaintiff" are descriptive only.-Pascucci v. Rossi, Conn., 101 Atl. 22.

Together.

11. Brokers-Bringing Parties Where a broker was employed in writing to sell real estate, all that he was bound to do was to bring parties together and get them to make a binding agreement, and it was not necessary that he produce one "able" to perform contract. --Freeman v. Van Wagenen, N. J., 101 Atl. 55.

12. Repudiation of Contract.-Broker's refusal to accept owners' contention that it had waived its commission on a sale and to account on that basis, held not such a refusal to account as authorized owners to repudiate the contract. -Parker v. Seattle Land & Improvement Co.. Wash., 165 Pac. 1086.

13. Carriers of Goods-Bill of Lading.-Where shipper loads perishable goods, and carrier merely issues uniform bill of lading without, special examination, formal declaration of bill of lading that goods were received in apparent good order does not require carrier to assume burden of showing freedom from negligence for injury to such goods.-Orunsten v. New York Cent. R. Co., N. Y., 165 N. Y. S. 996.