Gambar halaman
[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

the case of Burnham v. Rangeley, 2 Woodb. & Min. 417--424, where he collects a large number of authorities on the subject. In the present case, the writ of error is not dismissed for want of jurisdiction in this court; on the contrary, the jurisdiction of the court is exercised in reversing the judgment for want of jurisdiction in the Circuit Court; and although in a formal and nominal sense the plaintiffs in error prevail in obtaining a reversal of a judgment against them, the cause of that reversal is their own fault in invoking a jurisdiction to which they had no right to resort, and its effect is, to defeat the entire proceeding which they originated and have prosecuted. Railroad Co. v. Swan. Opinion by Matthews, J. [Decided April 21, 1884.]


MUNICIPAL CORPORATION POWER TO BORROW MONEY-CONFLICT IN AUTHORITIES.-The question of the implied right of municipal corporations to borrow money, or issue bonds with all the qualities of paper negotiable by the law merchant, has undergone frequent adjudication in the American courts. It has also been extensively discussed by the ablest elementary writers and commentators upon the subjects to which the question properly belongs. The weight of authority, so far as the State decisions are concerned, seems to favor the power. The majority of elementary writers are decidedly opposed to it. Mills v. Gleason, 11 Wis. 470; Bank v. Chillicothe, 7 Ohio, part 2, p. 31; Williamsport v. Commonwealth, 84 Penn. St. 487; Clarke v. School District, 3 R. I. 199; City of Galena v. Corinth, 48 Ill. 423; contra Hackettstown v. Sunckham, 37 N. J. L. 191; Knapp v. Hoboken, 39 N. Y. 394; Dent v. Cook, 45 Ga. 323; Hamlin v. Meadville. 6 Neb. 227; Beaman v. Board of Police, 42 Miss. 238; Capinartin v. Police Jury, 23 La. Ann. 190; Dill. Munic. Bonds, 12, 13, 14; Dill. Munic. Corp., § 117, et seq; Burroughs on Pub. Sec., ch. 5; 2 Daniel Neg. Inst. 1527 et seq. In the Supreme Court of the United States, where the point is most frequently raised, the question is in a very unsettled state, and some of the decisions of that court seem difficult to reconcile with each other. Police Jury v. Button, 15 Wall. 656; Wells v. Supervisors, 102 U. S. 625; Mayor v. Ray, 19 Wall. 484; Lynde v. County, 16 id.6; Hitchcock v. Galveston, 96 U. S. 341; see also Gause v. Clarksville, 5 Dill. 165. It is to be noted however that whenever in that tribunal the power has been sustained, it has been by a divided court, whenever it has been denied the court has been unanimous. The decisions, too, have been made to rest more or less upon the policy of the particular State in which the cases have arisen, in reference to the issuance of negotiable bonds by municipal corporations. Robertson v. Breedlove. Opinion by Willie, C. J.

[Decided March 24, 1884.]

ASSIGNMENT FOR CREDITORS-INVENTORY PART OF -PROVIDING FOR RELEASE OF ASSIGNOR.-Where the deed of assignment conveyed certain designated property, without in terms declaring that the property thus conveyed was all the assignor possessed, except that exempt from forced sale, but the inventory made a part of the assignment, and the required oath contained clear and unequivocal declarations that the property conveyed by the deed, and named particularly in the inventory, was all the estate of the assignor, of every character, which he owned, except named property which was exempt from forced sale, held, those papers should be taken together as the assignment, and the deed considered with reference

to them, and thus considered the deed in question is a valid one. Burrill on Assignments, 128; Norton v. Kearney, 10 Wis. 448; Van Vleet v. Slauson, 45 Barb. 317; Kruse v. Prindle, 8 Oregon, 158; Burrow v. Lehndorff, 8 Iowa, 96; Holt v. Bancroft, 30 Ala. 195; Downing v. Kintzing, 2 S. & R. 326. It is unimportant whether the assignment reserves to the assignor any surplus remaining after payment of the consenting creditors. The statute itself regulates that matter. An assignment providing for the release of the debtor by consenting creditors is valid, and as for non-consenting creditors the statute provides for them and the manner of enforcing their claims. Cases will be found fully collected in notes to Burrill on Assignments, sections 184-200. See also Livermore v. Jenckes, 21 How. 126; Brashear v. West, 7 Pet. 609. Keating v. Vaughan. Opinion by Stayton, J. [Decided May 9, 1884.]



NEGLIGENCE-EXPLOSION OF GAS IN SEWER-NOTICE -CONTRIBUTORY NEGLIGENCE.-Where injury has resulted from a defect in a sewer or gas main, notice or knowledge will be assumed when the circumstances are such that the municipal authorities, by the exercise of proper and reasorable diligence, might have known of the defect which caused the damage. If a person knew that illuminating gas was escaping into his house from a main, and that it might explode, it was his duty to withdraw from the premises or to take suitable precautions for his safety. Whether he had such knowledge or not was a question for the jury. An ordinary man is not bound to know that illuminating gas when mixed in certain proportions with the common air is explosive. As was said in the case of the Oil City Gas Co. v. Robinson, 99 Penn.St.1, such knowledge might be presumed of an expert, or of one whose education would necessarily involve some knowledge of chemistry, but it would be going too far to presume such knowledge of a saloon-keeper. A. was injured by an explosion of illuminating gas, which had found its way into his house through an untrapped drain leading from a sewer belonging to the municipality. The sewer received the gas from a gas main whose end, situated near A.'s home, had been stopped by a wooden plug, which had rotted out. A patrolman and others testified to noticing the smell of illuminating gas in the street ten or twelve days before the explosion. Held, that this evidence should have been submitted to a jury in order to determine the question whether the municipal officials, by the exercise of a proper diligence could have discovered the defect in the gas main in time to have had it properly repaired before the explosion. McLaughlin v. City of Corry, 27 P. F. Smith, 109; Fritsch v. Clty of Allegheny, 10 Nor. 226. Kibele v. City of Philadelphia. Opinion by Gordon, J. [See 30 Eng. R. 569.--ED.]

[Decided Feb. 18, 1884.]

[ocr errors]

BOUNDARY CENTER OF STREET COVENANTEVIDENCE OTHER THAN MAPS-REFERENCE TO DEED -DEDICATION- LIMITATIONS.-(1) It is well settled law that on the sale of a lot bounded by a street, the title passes to the center of the street, if the grantor had title to the land covered thereby, unless he reserved it either expressly or by clear implication. Paul v. Carver, 2 Casey, 223; Cox v. Freedley, 9 id. 124; Trutt v. Spotts, 6 Nor. 339; Spackman v. Steidel, 7 id. 453. When one, who is the proprietor of the portion of the town in which the lands lie, sells and conveys the lots according to a plan which shows them to be on a street

or alley, it creates an implied covenant of the existence of the street or alley. Trutt v. Spotts, supra. The fact that it does not appear ou the borough maps or plans is immaterial as between parties claiming under the original owner and affected with knowledge of his plan. (2) In the absence of the original draft or plan employed by the grantor its place may be supplied from other evidence from which the jury are to determine the location of the disputed street or alley. (3) Mere different and disconnected acts of trespass extending over parts of several years are clearly insufficient to establish any right to obstruct an alley under the statute of limitations or to bar the public character which has been stamped on the land by its dedication to public use as an alley. Transue v. Sell. Opinion by Paxson, J. [As to first point see 28 Am. Rep. 75; 32 id. 719; 23 id. 229; 31 Eng. R. 689.-ED.] [Decided March 24, 1884.]

MASTER AND SERVANT-TO FIX LIABILITY, RELATION OF, MUST EXIST-RESPONDEAT SUPERIOR.- -Where the owner of a property refused to allow the servants of a third party to carry down through his store some heavy bags of paper, which the said third party had purchased from him, and which were stored in the upper part of the building, but told them they could throw them out of the window, the fact of such instruction does not create such a relation between the owner and the said servants as to render him liable when they do this in such negligent manner as to injure one passing by in the street below. The case of Stevens v. Armstrong, 10 N. Y. 345, is in point. There the defendants were merchants in the city of Troy, N. Y. They sold to the Messrs. Plum a box which was in the upper loft of the defendant's store. The Messrs. Plum sent their porter for it. The latter went upon defendants' premises to remove it, and while engaged in lowering the box with a tackle an accident occurred through the porter's negligence, by means of which the plaintiff was injured. The Court of Appeals ruled that "the defendants could not be held liable for the negligent acts of the porter, by virtue of the principle applicable to the relation of master and servant unless that relation in fact subsisted. Knowing and permitting the porter to go into the loft to get the box, his being in fact at the time the servant of Plum, and actually acting in his employment, did not constitute him in any degree the agent or servant of the defendants while engaged in removing the box. The relation of master and servant cannot be created but by contract, express or implied, between the master and servant." The only distinction between that case and the one in hand consists in the fact that in the latter Shoneman directed the bales to be thrown out of the window, which is a distinction without a difference. If in the New York case the defendants had directed the porter to lower the box by means of the tackle they would not have been responsible for his negligenee in doing so any more than Mr. Shoneman is liable for having directed Hemingway's servants to remove the bales by way of the window. I concede that if Shoneman had directed the manner of throwing the bales out of the window, and that if this particular bale had been thrown in accordance with such direction, he would have been responsible. This is as far as the cases go. McCullough v. Shoneman. Opinion by Paxson, J.

[Decided Feb. 4, 1884.]

[ocr errors][merged small]

the east and north wall of the building to be erected by them on the lot conveyed, and that for the purpose of securing light and air to the said building to be erected as aforesaid, no wall, building or obstruction whatever shall hereafter at any time be built, erected or put by the said A., his heirs or assigns, on his said remaining ground within fourteen feet of the east line of the hereby granted lot." A provision was added that if at any time the building ceased to be used as a place of religious worship, then the right of placing the windows in the east wall should cease, and the grantee, his heirs and assigns, might thereupon close the same. The trustees erected the building, and after using it for many years as a church, sold it to the city of Philadelphia in 1872, since which time it has been used as a public school. C. having in the meantime acquired title to the remaining ground subject to the easement, began the erection of a brass foundry, the wall of which was distant ten feet from the east wall of the public school building, whereupon the city prayed for an injunction to restrain the erection of such wall. Held, that though the building erected by the trustees of the church had ceased to be used as a place of religious worship, and the right to maintain windows in the east wall thereof accordingly ceased, nevertheless the covenant not to erect any building within fourteen feet remained unimpaired. And that the injunction prayed for should be granted accordingly. Held, that the value of such covenant does not consist in furnishing light and air alone; security against fire and annoyance from noise being additional reasons for upholding it. Yeaton's Appeal. Opinion per Curiam. [Decided Jan. 28, 1884.]

EVIDENCE-RESPONSIVE ANSWER-EJECTMENT-DIVIDING CLAIM.-(1) The rule that the evidence of two witnesses, or of one witness and corroborative circumstances equivalent to another, is necessary to overcome a responsive answer in chancery does not apply when the answer is made on "information received." The evidence of one witness may then be sufficient. Eaton's Appeal, 16 P. F. Smith, 483; 3 Greenl. Ev., § 287. (2) Where as to part of the property in dispute ejectment would be an adequate remedy, yet if the title to the balance could only be settled by bill in equity the plaintiff will not be compelled to divide his claim, and the entire subject-matter will be adjudicated in equity. Locher's Appeal. Opinion by Sterrett, J. [Decided Jan. 7, 1884.]

COVENANT-TO PAY INTEREST SURVIVES-LIMITATION-POWER OF SALE IN EXECUTORS.-(1) A covenant entered into by a decedent in his life-time, guaranteeing the payment of interest on a mortgage until the mortgaged premises are so improved as to constitute an adequate security for the mortgage debt, survives him, and can be enforced against his executors and administrators, so as to recover interest accruing after the death of the decedent. Quain's Appeal, 10 Harris, 510, explained, and its principle not extended to the present case. See also Gardiner v. Paiuter, 3 Phila. R. 365; Williams' Appeal, 11 Wright, 283. (2) The lien of such a covenant as is above specified can only be continued against the real estate of the decedent by bring. ing suit thereon within five years of the decedent's death, or by filing a copy of said covenant within said period. (3) A mere testamentary power of sale vested in executors to sell real estate will not work a conversion. There is no direction here to sell; only a power. It ought to be settled by this time that in order to work a conversion there must be either (1st) a positive direction to sell, or (2d) an absolute necessity to sell in order to execute the will, or (3d) such a blending of real and personal estate by the testator in his will as

[ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[ocr errors][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money. In each of the two latter cases an intent to convert will be implied. These propositions are settled by a line of authorities. It is sufficient to refer to the late cases of Jones v. Caldwell, 1 Out. 42 Roland v. Miller, 11 Week. Not. 431; Lindley's Appeal, 13 id. 65. We have neither of these requirements in the will of this testator. The most that can be said is that he made a mistake as to the extent of his estate and a sale of his real estate became necessary in order to pay his debts. But this is not to the purpose. The scheme of his will did not contemplate this, and if by reason of the depreciation of his property, or for other cause, a necessity to sell the real estate arose which was not foreseen by the testator, it will not work a conversion, for the obvious reason that a conversion is always a question of intent. Hunt's Appeal. Opinion by Paxson, J.

[Decided Feb. 4, 1884.]


TAXATION--CIRCUS OF NON-RESIDENT.-A travelling circus and menagerie, owned by a non-resident, and brought into this State to be exhibited at various points, the owner intending to take it into another State after such exhibitions, is not subject to taxation in this State. As well might a resident of another State be taxed on his money and team, if he comes ou a visit to the State, to remain a week. Barnes v. Woodbury, 17 Nev.383; Conley v.Chedic,7 id.341; State v. Engle, 34 N. J. Law, 427; Hoyt v. Com., 23 N. Y. 240; id. 245. Robinson v. Longley. Opinion by Leonard, J.

[Decided Aug., 1883.

AGENCY-RESTRICTION ON AUTHORITY-SALE-VEN. DOR WITHOUT TITLE.—(1) It is ordinarily the duty of parties who deal with agents to ascertain the extent of their authority; but when a principal puts the agent forward as a general agent, or places him in a position where others are justified in the belief that his powers are general, the restrictions privately imposed on the agent are immaterial, except as between him and the principal. A railroad superintendent may be presumed to have authority to determine an ordinary matter, such as the receipt of fuel for the company. F. & M. Bank v. B. & D. Bank, 28 N. Y. 425; T. W. & W. R. Co. v. Rodrigues, 47 Ill. 188; McKiernan v. Lenzen, 56 Cal. 61; Southgate v. A. & P. R. R. Co., 61 Mo. 89; In re German M. Co., 19 Law & Eq. 591; Walker v. G. W. R. Co., 2 L. R. Exch. 228; Wild v. N. Y. & A. S. M. Co., 59 N. Y. 644. (2) Where a purchaser has notice that the goods about to be sold to him are not the property of the vendor, the owners after the sale may recover the goods or their value. Sacalaris v. Eureka & P. R. Co. Opinion by Belknap, J. [Decided Nov. 24, 1883.]



ARBITRATION AND AWARD-EX PARTE EVIDENCEALL MUST MEET-MAJORITY MAY DECIDE.-Uuder an agreement of arbitration by which differences between A. and B. relative to certain premises were submitted to two arbitrators who, if they could not agree, were to call in a third, and the decision of any two of the three was to be final; a third was called in, and of the three

two of them, in the absence of the other, examined the premises and heard ex parte statements from B., A. not being present and not having been notified; the third also examined the premises alone, and heard ex parte statements from B. in the absence of A., and without notice to him, the information thus gained being influential in determining the award; and subsequently the three heard ex parte statements from A. in the absence of B., and without notice to him. Held, that the award was illegally made and null: First, because the parties interested were not notified; second, because the arbitrators did not act together. The reasoning of this court in the case of Cleland v. Hedly, 5 R. I. 163, with regard to the illegality of receiving any ex parte evidence in cases of this sort, without notice to the opposite party, is abundantly supported by the authorities, and we are content with the law as therein stated. It is decisive of the case at bar upon that point. See also Selby v. Gibson, 1 Har. & J. 362, note; Lutz v. Linthicum, 8 Pet. 165; Bushey v. Cul ver, 26 Md. 534; Collins v. Vanderbilt, 8 Bosw. 313; Bullitt v. Musgrave, 3 Gill, 31; Webber v. Ives, 1 Tyler, 441; Frey v. Vanlear, 1 Serg. & R. 435; Chaplin v. Kirwan, 1 Dall. 187; Peters v. Newkirk, 6 Cow. 103; Banton v. Gale, 6 B. Mon. 260. The second reason why the award in this case cannot be sustained is that the arbitrators did not act together. It is a well-settled rule that where the submission is to the several arbitrators jointly, all must act and act together. Aud this rule obtains as well in those cases where the majority are authorized to make an award which shall be binding upon the parties to the submission, as where entire unanimity is required. Said Mr. Justice Nelson in Harris v. Norton, 7 Wend. 534: "Referees have no power to act unless all attend. The concurrence of two, had the third been present, would have been enough; but only two attending, they could do no act affecting the rights of the parties." And the law is the same with regard to arbitrators as to referees. In Hoff v. Taylor, 5 N. J. Law, 829, the court states the rule as follows: "All are to deliberate, consult, reason; but the weight or majority of opinion is the rule. The whole court is to hear, but the claim which gives the most suffrages is to prevail." Says Mr. Justice Breece, in Smith v. Smith, 28 Ill. 56, 60: "They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all; for the parties are entitled to have recourse to the arguments, experience and judgment of each arbitrator at every stage of the proceedings brought to bear on the minds of his fellow judges, so that by conference they shall mutually assist each other in arriv ing at a just conclusion. To the same effect are both the English and American decisions almost without exception. See Kyd on Awards, 105, 106; Russell on Arbitration, 209; Morse on Arbitration and Award, 152, 153; Thompson v. Mitchell, 35 Me. 281; In re Plews & Middleton, 6 Q. B. (N. S.) 845; Little v. Newton, 9 Dowl. P. C. 437: Lord v. Lord, 5 El. & B. 404; Lyon v. Blossom, 4 Duer, 318, 325; McInroy v. Benedict, 11 Johns. Rep. 402. Wood v. Helme. Opinion by Tillinghast, J. To appear in 14 R. I. Rep. [See 20 Eng. R. 522-ED.]

[merged small][ocr errors]

necessary witness in the two cases, and attended the court for the sole purpose of giving his evidence. While so in attendance he was served with a summons in another case. He applied to the court, on a showing of the facts, to set aside the service, but the application was refused. He now moves in this court for a writ of mandamus. We think the case is within the principle of Watson v. Judge of Superior Court, 40 Mich. 729, and that the writ should issue. Public policy, the due administration of justice, and protection to parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in other cases also. The following cases may be referred to for the general reasons: Norris v. Beach, 2 Johns. 294; Sanford v. Close, 3 Cow. 381; Dixon v. Ely, 4 Ed. Ch. 557; Clark v. Graut, 2 Wend. 257; Seaver v. Robinson, 3 Duer, 622; Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 id. 568; Hall's case, 1 Tyler, 274; In re Healey, 53 Vt. 694; Miles v. McCullough, 1 Bin. 77; Halsey v. Stewart, 4 N. J. Law, 366; Dungan v. Miller, 37 N. J. 182; Vincent v. Watson, 1 Rich. Law, 194; Sadler v. Ray, 5 id. 523; Martin v. Ramsey, 7 Humph. 260; Dickenson's case, 3 Harr. (Del.) 517; Henegar v. Spangler, 29 Ga. 217; May v. Shumway, 16 Gray, 86; Thompson's case, 122 Mass. 428; Ballinger v. Elliot, 72 N. C. 596; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v. Flower, 8 Term R. 534: Newton v. Askew, 6 Hare, 319; Persee v. Persee, 5 H. L. Cas. 671. See also In re Cannon, 47 Mich. 481; S. C., 11 N. W. Rep. 280. The case of Case v. Rorabacher, 15 Mich. 537, is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence. Mitchell v. Wixon. Opinion by Cooley, C. J. [Decided April 30, 1884.]

SALE WHEN TITLE PASSES-ATTACHMENT-JURY'S AWARD OF DAMAGES.-When property sold has been identified, it is immaterial that it had not been received and weighed by the purchaser, and the quantity agreed upon ascertained, before a levy under a writ of attachment against the vendor, and the sale must stand. Where a record fails to show how a jury made up their award of damages, and it was possible for them, on the evidence, to award the amount, without including improper items, a judgment will not be disturbed, because they may have included the improper items. Adams Mining Co. v. Senter, 26 Mich. 73; Lingham v. Eggleston, 27 id. 324; Hatch v. Fowler, 28 id. 205; Hahn v. Fredericks, 30 id. 223; Wilkinson v. Holiday, 33 id. 386; Grant v. Merchants', etc., Bank, 35 id. 515; Scotten v. Sutter, 37 id. 526; Brewer v. Salt Ass'n, 47 id. 526; 11 N. W. Rep. 370. Sandler v. Bresnahan. Opinion by Cooley, C. J. [Decided April 30, 1884.]



NOVATION-SURRENDER OF NOTES SECURED-MORTGAGE CONTINUES IN FORCE--POWER OF ATTORNEY.—(1) A debtor is discharged from all personal liability by an agreement of his creditor to accept another in his stead. The acceptance of a new debtor does not raise a new debt, but merely transfers the old one. The debt itself is not changed by the novation. A mortgage continues in force until the debt is satisfied; and it is not discharged by the surrender of the notes secured and the acceptance of others in their stead from a new debtor. No mere change in the form of the debt, nor, as we think, in the personnel of the debtor,

has the effect to discharge it. Sloan v. Rice, 41 Iowa, 465; Packard v. Kingman, 11 id. 219; Henderschott v. Ping, 24 id. 134; Watkins v. Hill, 8 Pick. 522; Pomeroy v. Rice, 16 id. 22. (2) Where a power of attorney is given to cancel a mortgage and take a new one in its place the mere cancellation of the old mortgage under the power is of no effect unless a new mortgage is taken. 56 Iowa, 622; 10 N. W. Rep. 214. Foster v. Paine. Opinion by Reed, J. [Decided March 20, 1884.]


WILL-LEGACIES-INTEREST ON UNPAID.-A testator bequeathed various legacies, and amongst others a legacy to each of the sons and daughters of E. P., whether born in the testator's life-time or after his decease; and the will contained the following words: "I direct that the said several herein before-mentioned legacies shall be paid within four years after my decease. The executors paid certain of the legacies within one year after the death of the testator. The assets were amply sufficient to pay all the legacies, but other legacies had not been paid, because the legatees, being infants, were unable to give receipts for the same. The question was from what date interest was payable on the unpaid legacies. Held, that the direction as to payment was merely for the general convenience of the estate, for which purpose it was not necessary to postpone the payment of the legacies; and that therefore the several unpaid legacies should be credited with interest from the end of one year after the testator's death. Varley v. Winn, 2 K. & J. 700, followed. Chan. Div., March 15, 1884. Olive v. Westerman. Opinion by Kay, J. (50 L. T. Rep. [N. S.] 355.) [See 9 Alb. L. J. 175; 17 id. 279.-ED.]

[ocr errors]

PARTNERSHIP-REAL PROPERTY OF, PERSONALTYCANNOT BE RE-CONVERTED.-Real property belonging to a partnership, being regarded in equity as personalty in consequence of being impressed by equity with an implied trust for sale, cannot be reconverted, so as to avoid liability to probate duty at the death of one of the partners, by any thing short of a binding agreement between the partners which takes effect at the death. And therefore where one partner assumed by his will to reconvert real proverty belonging to the partnership, in pursuance of an alleged agreement between the partners that he should do so by his will, the liability to probate duty was not ousted. (2) A. and B. carried ou business in partnership together. An arrangement was made between A. and B. that A.'s share of the real property of the partnership should remain in the business after A.'s death, B. to

pay an annual sum equal to per cent upon the value of A.'s share as rent for it. These terms were embodied in A.'s will, and B. assented to them. Subject to these terms, A. devised and bequeathed all his property to his executors upon trust for his wife E. A. died, and B. paid to A.'s executors an annual sum equal to 5 per cent upon the value of A.'s share in the real property of the partnership. E. afterward died, having made her will, whereby she confirmed the dispositions in her husband's will, and subject thereto devised and bequeathed her property to her children. Held, that A.'s share of the real property of the partnership was personal property, and so liable to pro-bate duty, both under his will and under E.'s will, and that there was no such agreement made between the partners as was effectual to reconvert the property into realty. The judgment of Pollock and Huddleston, BB., and North, J. (48 L. T. Rep. [N. S.] 608),

[ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors]

affirmed. Custance v. Bradshaw, 4 Hare, 315, over-
ruled. Ct. of App., Jan. 17, 1884. Attorney-General
v. Hubbuck. Opinious by Coleridge, L. C. J., Brett,
M. P., and Bowen, L. J. (50 L. T. Rep. [N. S.] 374.)

AGENCY-POWER TO SELL, NOT TO PLEDGE.-An authority in a power of attorney "to negotiate, make sale, dispose of, assign, and transfer, or cause to be procured and assigned, and transferred," at discretion, "all or any of the government promissory notes * * * standing in my name or belonging to me ** * *and for the purposes aforesaid, to sign for me every contract, or agreement, acceptance, or other document'," held (affirming the judgment of the court below), not to give authority to indorse a promissory note by way of pledge as security for a loan. Bank of Bengal v. Macleod, 5 Moo. Ind. App. 1:7 Moo. P. C. 35, distinguished. Jud. Com. Priv. Conn., March 1, 1884. Jonmenjoy Coondoo v. Watson. Opinion per Curiam. (50 L. T. Rep. [N. S.] 411.) [See 28 Eng. Rep. 838.-ED.]

CONTRACT--CONSIDERATION--EVIDENCE TO EXPLAIN. -By an agreement in writing G. agreed that Y. should receive all the money that was then due, and which should become due to G. upon the winding-up of the Barnstaple Second Annuitant Society, Y. paying to G. out of such money the sum of 100l. The consideration was stated to be "a sum of money this day paid, etc." Held, that evidence was admissible to show that in addition to the consideration expressed there was another consideration, namely, that Y. should vote for the winding-up of the society. Q. B. Div., March 4, 1884. Matter of Barnstaple Second Annuitant Society. Opinions by Day and Smith, JJ. (50 L. T. Rep. [N. S.] 425.)

EXECUTOR AND ADMINISTRATOR-WILL NOT PROBATED-NO AUTHORITY TO SUE.-A bill of exchange had been indorsed by a testatrix, who was the holder thereof, and paid in to her bankers for collection in the usual course of business. Before the bill became due the testatrix died, and when it became due the plaintiffs, as her executors, demanded the return of the bill, or its value. The bankers refused to deliver up the bill, on the ground that the plaintiffs had not taken out probate, but said they were ready and willing to give up the bill to the plaintiffs on their production of probate. Whereupon the plaintiffs, before taking out probate, began an action against the bankers for the delivery up of the bill, or its value, and for damages for its detention. Held, that all proceedings in the action should be stayed as frivolous and vexatious, until the plaintiffs took out probate. Webb v. Adkins, 14 C. B. 401; 23 L. J. 96, C. P., followed. Q. B. Div., March 6, 1884. Tarn v. Com. Bank, Sydney. Opinions by Lopes, Stephen and Cave, JJ. (50 L. T. Rep. [N. S.] 365.




INDICTMENT-DEFECTIVE-ARREST · OBTAIN.-An affidavit alleging that affiant "has good reason to believe, and does believe," that a certain person has committed an offense, is not sufficient to authorize a justice to issue a warrant for his arrest. The affidavit must be upon knowledge, and not mere conjecture. Bish. Crim. Proc., §§ 716-719; Com. v. Lottery Tickets, 5 Cush. 369; Brown v. Kelley, 20 Mich. 27; People v. Judge of Wayne Circuit, 36 id. 334; Swart v. Kimball, 43 id. 451; S. C., 5 N. W. Rep. 635. The complaint must set up the facts constituting the offense on the knowledge of the person making the

complaint, and if he does not know them, other witnesses must be examined who do know them; and no person can be arrested on the mere belief of the person making the complaint. The liberty of the citizen is not held upon so slender a tenure as that. Badger v. Reade, 36 Mich. 774; People v. Recorder of Albany, 6 Hill, 429; Proctor v. Prout, 17 Mich. 473. An indictment alleging that defendant "was engaged in, and did carry on the business" of selling at retail, and as a beverage, spirituous liquors, etc., does not charge an offense under the laws of Michigan, unless some particular instance of the illegal traffic is specified. People v. Minnock, 18 N. W. Rep. 390. Sup. Ct. Mich., April 30, 1884. People v. Heffron. Opinion by Champlin, J. (19 N. W. Rep. 170.)

RAPE-STATEMENTS-RES GESTA-MEDICAL EXPERT. -Upon an indictment for rape of a female child, evidence is admissible of the answers given by the girl two or three days after the alleged injury, to the questions of her mother, induced by the girl's singular demeanor. Such statements are a part of the res gestæ, and their weight is for the jury. A hypothetical question put to a physician, whether in his opinion, the facts assumed would constitute rape, is altogether improper, being a demand for his legal, instead of his medical, knowledge. Yet if he gives a correct answer. the impropriety of the question is no ground for a new trial. Sup. Ct. Mich., April 30, 1884. People v. Brown. Opinion by Campbell, J. (19 N. W. Rep. 172.)

SENTENCE-CUMULATIVE ILLEGAL.- Where a prisoner, convicted for two separate offenses, was sentenced to serve three months for the first, from January 25th to April 24th, and for a like term for the second offense, from and after April 24th, unless the first term should expire before that time, in which case the second should begin at the termination of the first, held, that the second sentence was void. The petitioner, having served out the term under the first sentence, now applies in habeas corpus for a discharge, on the ground that cumulative sentences are illegal. We have no statute providing for such sentences; and in the absence of statutory provision therefor the question presented is not without difliculty, as the following cases will abundantly show. Wilkes' case, 4 Brown, Parl. Cas. 360; Queen v. Cutbush, L. R., 2 Q. B. 379; State v. Smith, 5 Day, 175; Brown v. Com., 4 Rawle, 259; Warden of State Prison v. Allen, 11 Ind. 389; James v. Ward, 2 Metc. (Ky.) 271; Kite v. Com., 11 Metc. 581; Ex parte Meyers, 44 Mo. 279; Ex parte Roberts, 9 Nev. 44; People v. Forbes, 22 Cal. 135; Brown v. Rice, 57 Mo. 56; People v. Whetson, Cent. Law J. (1875) 552. But expressing no opinion upon the general question, we think a sentence to confinement to take effect in the future cannot be sustained, unless it is certain and definite, and not subject to undefined and uncertain contingencies. Sup. Ct. Mich., April 30, 1884. Bloom's case. Opinion by Cooley, C. J. (19 N. W. Rep. 200.) [See 29 Eng. Rep. 432.-ED.]


is County Court at D., and the local practi

tioners are all at their offices at 9 sharp, waiting for the last stray fish that may come to the net. I have a jury case with S.," Mr. Attorney-General," as we have dubbed him, and two or three smaller matters against less dangerous antagonists, but these are all prepared and will cost me no trouble this morning. I have seen my witnesses, looked up my cases and am ready for the fray. What I now await is the visit of

« SebelumnyaLanjutkan »