The daily morning journal and courier., 1897-05-26

mands for security facility of trans fer, greater or less according to its na- ture and use, out of which grows GUS tom or usage generally adopted,
 This principle has been made effec- tive in several ways;
 "1. What the merchants have found convenient and necessary, they have adopted as a custom, and the result has been:
 "(a) The courts have accepted the custom, and it has thus become @ part of the law merchant;
 "(b) The courts have rejected the custom, and the legislature has inter posed In behalf of commerce no enact ment;
 "(c) The courts have extended the application of other rules to illegaliHes, and justified established custom, and facilitated the transfer of securities;
 "(d) Again, the courts have recog- nized the intent of parties as shown by custom of market or trade, and have incorporated the custom into contract"
 The closing portions of the lecture were devoted to clear and closely reasoned analysis of the doctrine of ne- probability of which good idea may be gained from two or three illustrations, for example:
 Tt seems ridiculous to say a watch is quasi-negotiable But If come into possession of Jurgensen works In Waterbury case, and wishing to dis pose of 1t, I go to some raScally dealer who tells me it is a cheap affair, worth only $10, and I sell it to him for $10, he gets title to the watch and if he sells it the next hour to an innocent pur- chaser for $500 the customer can hold the watch against my claim, although could have avoided the sale, for fraud, and taken it away from the fraudulent
 jeweler at any time before the rights of the innocent purchaser intervened.
 New, this innocent purchaser got his
 rights because the jeweler had posses sion and actual title, and could give indefeasible title, although his was inn
 peachable while he held it. He gave
 better title than he had; and so, in a
 way, the watch was quasi-negotiable. In this case, of course, there was an
 intention on my part, although l was defrauded, to pass the title, and 1t pass
 ed; and 1t was my fault and most stu
 pid negligence.
 And many interesting cases are said
 to turn on intention. But it seems to
 me that they turn on the point of neg ligence or fault of the owner. Let us
 look at one or two A blind man is in-
 duced by fraud to sign a note. He can
 not be held. of it be said the law is harsh and hard, let me cite this case in favor of the accused.) And why? Not, I think, because he did not intend to
 execute the note, but because, by his
 infirmity, he could not know and could
 not be at fault. But a man who can
 read has a. paper put before him and
 accepts his friends assurance that it is simple contract, and signs it. In
 point of fact 1t is a promissory note, which is negotiable. It is sold to an innocent holder; and the maker is held liable. And why? Because, I think. he was negligent. Certainly he never in- tended to sign the note. And lastly,
 hand you bill or a gold piece to keep for me for a few minutes, while I am
 gone, and you spend it. I cannot get it back from the storekeeper, who SUD- posed it was your money and sold you
 goods for 1t. You had no agency ex-
 cept to hold it for me. I had no inten- tion of investing you with title: but the
 innocent storekeeper gets the title to the universal medium of exchange; and
 necessarily so. The principle Is the same, although the presumption must be different in regard to different kinds of property And these presumptions
 must be governed by the nature of the
 property and the requirements of com mercial necessity. I may, and very naturally would, leave my horse hitch ed in front of your house, and I could | do 1t with safety. A thief drives him off and sells him. The purchaser can claim no presumption of ownership from mere possession by the thief. The horse may have been hired, borrowed or stolen; and it is the purchasers bus l mess to find out whether the seller has title; but if leave my pocketbook in 1 the wagon I cannot get back the money | from the keeper of the tavern where | the thief has spent my money. A diff ferent rule must be applied to different
 kinds of property; and this the necessi- ties of commercial life demand. But what was negligence in the case of the l pocketbook was not negligence in the case of the horse, from the nature of l the property. And as another and most | important element of negligence or | fault on my part in these transactions, | let me suggest this: There is no req | son. except for the purpose of personal convenience, why 1 should carry about,
 or leave around promiscuously, or care | lessIy intrust to others, my property in a form which carries presumption of | ownership. I have no means of pro- tecting myself. I can register my | bonds. I can endorse the name of a
 payee on a promissory note, or I can | fill up the blank on the back of my stock certificates, and I would be safe and could protect myself in all those | dealings with my rascally associates; but if I refuse to do this if I choose to | leave my stock endorsed in blank, to keep my own investments in a form 1 payable to bearer, or to draw all my | money out of the bank and carry the | bills around in my pocket, it is my own | fault I take the risk, and I am at | fault, in that l choose. for personal convenience, to run the risk which the law, with due regard to the necessities of commerce, says I must run for the convenience and protection of the bus mess world"
 MT. Townsend's plea, so far as it was an argument was in favor of the