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can Window Glass Company, a creditor of the bankrupt, and was asked to produce a certain tax statement for the year 1904, filed by the bankrupt with the board of assessors of Detroit. Under the instructions of Mr. Doremus, assistant corporation counsel of Detroit, Mr. Guiney declined to produce said statement, basing the refusal upon the provisions of section 3846, Comp. Laws Mich. 1897, which is section 23 of the general tax law of Michigan. Section 19 of that law (Acts 1893, p. 362, No. 206) provides that:
"Every owner of property liable to taxation under the general provisions of this act, being of full age and sound mind, who is a resident of this state, shall make out and deliver to the supervisor or assessor on demand a sworn statement of all the property owned or held by him as follows." (Here follows the form and requisites of such statement.)
Section 23 (Comp. Laws 1897, § 3846), supra, provides that:
"All the statements herein required to be made and received by the supervisor or assessor shall be filed by him ;
but no such statement shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act, and any officer or person who shall make or allow to be made, willfully or knowingly, any other or wrongful use of such statement shall be liable to the person making such statement for all damages resulting from such unauthorized or unlawful use of such statement.”
No objection was made by the bankrupt to the production of the statement. This fact it is claimed by the creditor made its production the duty of the witness, and was a waiver by the bankrupt of the protection given by the statute. The argument is that the right conferred by the statute here involved is like that prohibiting disclosure by a physician of facts affecting his patient, which came to his knowledge in his professional relation, and were necessary to enable him to treat the patient. The analogy fails because of the difference in the statute involved in the case at bar and that which excludes the testimony of the physician. The patient, by failure to object to the disclosure against which the statute protects him, waives his statutory right. The privilege is the patient's, not the physician's. Lincoln v. City of Detroit, 101 Mich. 249, 59 N. W. 617. In this case the official having the custody. of the statement he declined to produce is forbidden by the express terms of the statute "to make or allow to be made, willfully or knowingly, any other or unlawful use of any such statement” than that prescribed by the section, is made liable to an action for damages. The statute imposes the like liability upon any person who shall make such other use of the statement. This broad prohibition excludes the theory that the taxpayer's consent to the production or use of the statement authorizes the supervisor or assessor to produce or use it, except for the purposes designated in the statute. Neither the taxpayer nor the tax officer has any privilege under the act, but each has duties which he is bound to discharge. The former must “make out and deliver to the supervisor or assessor on demand a sworn statement,” etc. The supervisor or assessor has three duties: (1) To file such statement. (2) To present it to the board of review "for the use of said board.” (3) “After the assessment is reviewed,” to deposit “all such statements in the office of the township or city clerk as the case may be," whose
duty it is to preserve them "until after the next assessment is made and
purpose of the provisions of section 3846 is plainly to promote the collection from each taxpayer of his just share of state, county, and municipal taxes, and to that end to require from each property owner the full disclosure of all his taxable property under the state's pledge that the statement shall be kept inviolate, save to the officials for whose information and guidance it was made. To permit that information to become public would defeat the plain purpose of the statute by deterring the taxpayer from revealing what frequently could not be learned from any other source. Section 3843 makes it a misdemeanor, punishable by fine or imprisonment, or both, for the taxpayer to refuse to make “a true and correct statement" under oath, and thus seeks by its penalty for refusal and by making such statement an absolutely privileged communication to the state only to obtain and insure as far as possible a just basis for the apportionment of public burdens. To sanction the violation of that pledge by denying the taxpayer the protection of the statute would invite refusals to obey the law, evasions, and perjury, often injuriously affect the interests of the taxpayer, would obstruct the collection of taxes, and diminish the revenues of the state. The power of the Legislature to prevent these consequences is unquestionable. The wisdom and policy of the act must be conclusively assumed. Its meaning is unequivocal, and needs no construction. A like statute was sustained in Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct. 701, 44 L. Ed. 846. The reasoning of that case upholds the views above expressed. See, also, cases cited in 17 Am. & Eng. Encyc. of Law, p. 51, and notes, tit. “Privileged Communica
Apart from what has been said, it is clear, also, that the state statute (sections 3843, 3846) is a rule of evidence which the courts of the United States will enforce. Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 254, 255, 5 Sup. Ct. 119, 28 L. Ed. 708. It would appear from the certificate of the referee that the production of the statement could not have been compelled for other reasons, but these need not be discussed.
It must be certified to the referee that the witness Guiney cannot lawfully produce the filed statement of the bankrupt in court, nor can he be compelled to produce the same.
A. D. BLOWERS & CO. V. CANADIAN PAC. RY. CO.
A carrier or a warehouseman is liable in trover for the wrongful de livery of goods intrusted to it for shipment or storage; but such right of action may be waived by any action which ratifies the delivery, and thereby deprives the carrier or warehouseman of the right to recover over against the person to whom the delivery was made.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, & 361.)
2. SAME-RATIFICATION BY SHIPPER.
Plaintiff delivered to defendant railroad company a shipment of apples covered by bills of lading with drafts upon the consignee attached. Defendant delivered the apples without collecting the drafts, and on learning such fact plaintiff entered into correspondence with the consignee and obtained part payment and the consignee's acceptances for the remainder. Held, that the effect of such action was to ratify the delivery and pass title to the apples to the consignee, which precluded plaintiff from recovering from the defendant for conversion.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, $ 361.)
At Law. Trial to the court without a jury.
WHITSON, District Judge. In this case a jury has been waived and it comes up for trial on an agreed statement of facts. In 1905 the plaintiff entered into a contract with J. E. Chipman for the sale and delivery of certain apples for shipment to Australia. The contract consisted of a letter stating the terms, written by Chipman on March 9th of that year, which was modified in one or two minor particulars by subsequent correspondence. The apples were shipped in various lots. Those shipments over which this controversy arose were carried by the Western Steam Navigation Company from Seattle to Vancouver on the steamer Ramona, and were consigned to Chipman at the lastnamed place. As shipments were made, drafts were drawn by plaintiff upon Chipman, with bills of lading attached. The shipping receipts contained these words: "Draft on bill of lading.” The consignments were received by defendant at one of its docks in Vancouver, together with the shipping receipts, and were thereafter shipped to Australia on one of its steamers at the request of Chipman, with notice of and without the surrender of the bills of lading or the payment of the drafts. Plaintiff sues for conversion, on the ground that the defendant violated its duty in the premises as a common carrier and warehouseman.
A carrier is liable in trover for the wrongful delivery of goods intrusted to it for shipment, and the same rule applies to a warehouseman. 6 Cyc. pp. 468, 469; 28 Amer. & Eng. Encyc. p. 665; 15 Amer. & Eng. Encyc. pp. 1111, 1112. Judgment must go against defendant, therefore, unless something has occurred since its conversion of the property to excuse its dereliction. After the apples had been delivered to Chipman, it having come to the notice of the plaintiff, it entered into correspondence with him, and on November 22, 1905, through the Imperial Bank of Canada, it received part payment from him and took his acceptance on 35 days' time for the balance of the purchase price. This, it is alleged, was a waiver of the right to look to defendant for reimbursement, which is the sole question in the case.
In McSwegan et al. v. Pennsylvania R. R. Co., 40 N. Y. Supp. 51, cited by counsel for plaintiff, this significant language is found:
“It appears that on or about the 15th day of June the plaintiffs, upon learning that the electrical company had possession of the machinery, entered into correspondence by telegram and by letter with reference to the subject of payment; but in all the correspondence there is nothing which recognizes the wrongful delivery made by the defendant, and it relates merely to efforts to secure payment for the machinery or a compliance with the terms upon which the original executory contract was made." Page 52.
Again (page 53):
"All that took place between the plaintiffs and the electrical company was matter of negotiation, which ended in nothing. It was not a ratification of the defendant's act. It was merely an effort to do the best thing they could under the situation of the machinery as it then was. That did not relieve the defendant from responsibility, nor condone the conversion. None of the cases hold that the simple demand for the goods or their value amounts to a ratification of a wrongful delivery.”
The rule is well settled that such an unauthorized act may be ratified. 28 Amer. & Eng. Encyc. p. 739; 15 Amer. & Eng. Encyc. pp. 11111113; 5 Amer. & Eng. Encyc. pp. 230, 231. As to what constitutes a waiver or ratification depends upon the particular facts of each case. The transaction between these parties, analyzed to its ultimate, is this: The plaintiff, after having discovered that the apples had been wrongfully delivered to Chipman, had one of four remedies: (1) It could have relied upon the liability of the defendant, and ignored Chipman and his possession of the apples altogether. (2) It could have sued for the possession of the apples which had wrongfully come into Chipman's hands. (3) It could have sued Chipman for conversion. (4) It could have waived the tort and sued Chipman for the purchase price, or, perhaps, for the reasonable value. It did waive the tort by accepting part payment of the purchase price, taking what was in effect Chipman's note for the balance, and extending the time. The effect of this was to transfer the title of the apples to Chipman. After that transaction it could neither recover the apples nor sue for conversion, and its only remedy as against Chipman was to rely upon a sale which had become fully consummated. However the plaintiff should deal with the matter, in any event it was bound by the fact that a sale and delivery had been made, and that it must rely upon an executed contract. If, then, the plaintiff could not have asserted its right to possession as against the defendant, and if it could not sue Chipman for conversion, it cannot sue the defendant for the same thing, because it has ratified the wrongful act of the defendant by dealing with Chipman beyond the mere demand for payment, which has never been held to amount to ratification, for that is in the interest of both parties.
The authorities cited by plaintiff are cases which recognize the doctrine that there can be such a waiver as to relieve a shipper from liability; but in the particular instances such acts were not disclosed as did relieve from it. The acts here were all done prior to any claim being made against the defendant, which put it in a situation where it could not avail itself of any adequate remedy by way of protection. The plaintiff cannot put the defendant in a position which deprives it of a remedy for recouping its loss, and yet compel it to pay that loss. If, after the settlement made with Chipman, the defendant had sued him for possession or for the value of the apples, he could have successfully defended, upon the ground that he had made part payment, had given his note for the balance, and that the title thereby passed to him. Upon discovering the situation, plaintiff was put to its election; and it made that election, which precludes it from asserting that against the defendant which it could not assert against Chipman. In other words, a defense good as between Chipman and plaintiff must be good as between plaintiff and defendant; for, if the plaintiff ratified the wrongful delivery by dealing with it as the lawful possession of Chipman, then it waived the right to recover of the defendant, for it can claim no greater liability against the defendant than against Chipman. The facts as stipulated by the parties constitute a ratification, which precludes a recovery in this action. Converse v. Railroad Co., 58 N. H. 521; Southern Ry. Co. v. Kinchen et al., 29 S. E. 816, 103. Ga. 186.
Defendant is entitled to a judgment of dismissal.
UNITED STATES v. BITTY. (Circuit Court, S. D. New York. September 10, 1907.) 1. PROSTITUTION-NATURE AND ELEMENTS.
Prostitution is the act of permitting illicit intercourse for hire an indiscriminate intercourse, or what is deemed public prostitution.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Prostitution, $ 1.) 2. ALIENS-IMMIGRATION STATUTE-IMPORTATION OF WOMAN FOR "OTHER IM
In the provision of Immigration Act Feb. 29, 1907, c. 1134, $ 3, 34 Stat. 899, making it a felony "to import
* into the United States any alien woman or girl for the purpose of prostitution or for any other immoral purpose," the words "any other immoral purpose" must be construed with reference to the preceding word "prostitution," and to relate only to a like immoral purpose, and, so construed, cannot be held to include concubinage.
On Demurrer to Indictment.
HOUGH, District Judge. The indictment demurred to alleges that Bitty did “feloniously import into the United States of America from a foreign country, to wit, England, a certain alien woman for an immoral purpose, * * and it was the purpose of the said John Bitty, in bringing and importing the said alien into the United States as aforesaid, that she shall live with him as his concubine.” The act under which this indictment is found, commonly known as the "Immigration Act of 1907" (Act February 29, 1907, c. 1134, § 3, 34 Stat. 899), declares that:
"Whosoever shall, directly or indirectly, import or attempt to import into the United States any alien woman or girl for the purpose of prostitution or for any other immoral purpose, or whoever shall hold or attempt to hold any alien woman or girl for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose any alien woman or girl within three years after she shall have entered the United States," -shall be deemed guilty of a felony, and may be punished up to five years' imprisonment and $5,000 fine.
The section just quoted, therefore, creates three distinct felonies, each punishable, viz.: (a) The importation of a woman for the pur