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sented the claim to the Probate Court, to be allowed whether the survivors be insolvent or bankrupt or against the estate of deceased. The Probate Court, not." The same doctrine, but in different languupon the evidence introduced, allowed the claim, and age, is declared by Story in his work ou Equity Jur., the executrix appealed to the Circuit Court, where a $ 676. second trial was had, resulting in a judgment against Collyer on Partnership, $ 580, declares the law in the the estate. An appeal was then taken to the Appellate following language: “It is now established beyond conCourt, where the judgment of the Circuit Court was troversy, that in the consideration of courts of equity, affirmed, and this record is brought here by the exec- a partnership debt is several as well as joint, and that utrix for the purpose of reversing the judgment of the upon the death of a partner a joint creditor has a right Appellate Court.
in equity to proceed immediately against the represenIt is insisted by appellant that a partnership demand tative of the deceased partner for payment out of his cannot be allowed against the individual estate of a separate estate, without reference to the question deceased partner until the legal remedy against the whether the joint estate be solvent or insolvent, or to partuership assets and surviving partners has been ex- the state of accounts amongst the partners.'' hausted.
Dixon on Partnership, 113, says: “ When a liability Iu Mason v. Tiffany, 45 Ill. 392, which was a proceed-exists the creditor may, at his option, either pursue ing in chaucery, by a creditor of a firm, to enforce pay- his legal remedy against the survivor, or resort in ment of a firin debt against the estate of Tiffany, a de- equity to the estate of the deceased, and this altogether ceased member of the firm, it was held that every part- without regard to the state of the accounts between nership debt being joint and several, it follows neces- the partners themselves, or to the ability of the survisarily, that resort may be had, in the first instance, for vor to pay." the debt, to the surviving partners, or to the assets of Lindley on Partnership, 1053, says: “Whatever the deceased partner. In the decision of the case it is doubt there may formerly have been upon the subject, said: “If it was a fact that the surviving partners re- it was clearly settled before the judicature acts, that a mained solvent for a long time before the assigument, creditor of the firm could proceed agaiust the estate and the assigned assets were sufficient to pay this of the deceased partner without first having recourse claim, still these did not require the complainant to to the surviving partners, and without reference to press his claim against them, the estate of the de- the state of the accounts between them and the deceased partner being equally a fund on which he had a ceased." See also Parsons on Mercantile Law, 192; right to rely.” This case seems to establish the doc- Adams Eq. 173; Smith on Mercan. Law, 48; 3 Kent trine, in plain words, that a creditor, in equity, has the Com. 63, 64, and note. right, where he holds a claim against a firm, one mem- From the citations made, it would seem that the ber of which has died, to proceed against the estate of law as declared in Mason v. Tiffany, and Silverman v. the deceased member or the surviving partners, as he Chase, supra, is fully sustained, at least by text writmay elect.
ers of high authority, both in this country and in EngIn Silverman v. Chase, 90 Ill. 37, the same question land. But it will not be necessary to rely alone on the arose, and following the doctrine of the case last cited, text books for a solution of the question, as the decis. it was said: “A partnership debt is joint and several, ions in England and many of the States are in haraud the creditor has the right to elect whether he will mony with the rule declared in the text books. proceed against the assets in the hands of the surviv- In England, as early as 1816, in Devaynes v. Noble, 1 ing partner or against the estate of the deceased part- Mer. 5:29, it was decided, that in equity par\nership ner, as held by this court in Mason v. Till'any, 45 Ill. debts are joint and several, and a creditor holding a 392. Nor will the laches of the creditor in following firm debt could resort to the estate of the deceased the assets of the firm preclude a recovery. The credi-partner for payment, without showing the insolvency tor has the right to proceed against the estate at any of the survivor. The rule adopted in the case cited time before the Statute of Limitations has run, and a was subsequently adhered to and followed in Wilkinfailure to pursue the partnership assets cannot be re- son v. Henderson, 1 M. & K. 582, and since the decision lied upon as a defense when suit is brought against the of these cases the doctrine there announced has been estate.
regarded as the settled law of England. These two cases would seem to be conclusive of the In Nelson v. Hill, 5 How. 127, the Supreme Court of question presented, so far at least as this court is con- the United States held that the creditor of a partnercerned, as they, in terms, decide the same question in- ship may, at bis option, proceed at law against the survolved in the record before us, and it would not be viving partner, or go in the first instance into equity deemed necessary to say any thing more on the ques- agaiust the representatives of the deceased partner; tion were it not for the fact that it is claimed that that it was not necessary to exhaust his remedy at law these cases are in conflict with prior decisions of this against the surviving partner before proceeding in court, and the doctrine therein announced is not equity against the estate. sound and in harmony with the current of authority In support of the rule announced, Story on Partner. on the subject. We have therefore concluded to briefly ship, 8 362, note 3, is cited. In a later case (Lewis v. refer to some of the authorities which have a bearing United States, 92 U. S. 622), Nelson v. Hill is cited with on the question, with the view of showing that the de- approval. cisions of this court are fully sustained by the weight In Camp v. Grant, 21 Conn.41, the Supreme Court of of authority.
Connecticut, in an able opinion, adopt the rule of the Story on Partnership, $ 362, says: “The doctrine courts of England. formerly held upon this subject seeing to have been, In Weyer v. Thornburgh, 15 Ind. 124, the question that the joint creditors had no claim whatsoever in arose, and the Supreme Court of that State adopt the equity against the estate of the deceased partner, ex- rule in the language of Story on Partnership, cited cept when the surviving partners were at the time, or supra, and this decision was followed in a number of subsequently became insolvent or bankrupt. But that subsequent cases. Deun v. Phillips, 17 Ind. 406; Harly doctrine has been since overturued, and it is now held v. Overman, 36 id. 519. that in eqnity all partnership debts are to be deemed Iu Freeman v. Stewart, 41 Miss. 141, the question joint and several, and consequently the joint credi- arose, and the Supreme Court of that State held in tors have, in all cases, the right to proceed at law equity all partnership debts are joint and several, and against the survivors, and av election also to proceed a creditor has the right to proceed in law against the in equity against the estate of a deceased partner, survivor, and an election also to proceed against the
separate estate of the deceased partner, whether the his partners as defendants in the action; but after
The judgment of the Appellate Court will therefore
UNITED STATES CIRCUIT COURT ABis also claimed by appellant that the New York rule
STRACT.* has been adopted in North and South Carolina, Ohio and Pennsylvania; but without stopping to determine
FRAUD-ANTICIPATING--EQUITY-FORGED MARRIAGE precisely what the rule of the courts of these States
CONTRACT.-Courts of equity may inquire into and anmay be, we are satisfied that the decided weight of au
nul a forged or frauduleut instrument of writing thority is in harmony with the rule adopted in this State, and we are not inclined to change the rule here
claimed to be a contract of marriage before it is sought tofore adopted in this State, and follow the doctrine
to be put into effect, in order to disarm the fraudulent established by the courts of New York and Georgia,
beneficiary of a dangerous power that might hereafter although we fully recognize the great ability of those
be exerted to the detriment of innocent parties. We
think this case is within tbe rule that is often laid courts. It is also claimed that Silverman v. Chase is in con
down on this subject. Story in his work on Equity flict with Moline Water Power and Manf. Co. v. Web
Juris., $ 700, after speaking of various instruments that ster, 26 111. 233, and Pahlman v. Graves, id. 405. This
may be used for fraudulent or improper purposes, and position is, in our judgment, based upon a misappre
which may be canceled by a court of equity on the hension of those cases. In those cases there was a con
ground of fraud, says: “If it is a mere written agreetroversy between partnership and individual credi
ment, solemn or otberwise, still while it exists it is tors, and the principle of marshaling assets was ap
always liable to be applied to improper purposes, and plied, as it should have been. Where there are indi.
it may be litigated at a distance of time when the vidual creditors and partnership creditors, there is no
proper evidence to repel the claim may be lost or obdoubt in regard to the law that all individual creditors
scured, or when the other party may be disabled from have a prior claim against the individual assets, and
contesting its validity with as much ability and force partnership creditors have a prior claim against firm
as he can contest it at the present time." Story says assets, and an individual creditor would have the right
further, in section 701 : “The whole doctrine of to insist that no part of the separate assets should be
courts of equity on this subject is referable to the gentaken aud applied in payment of firm debts until all
eral jurisdiction which it exercises in favor of a party separate debts had been paid in full. This familiar
quia timet. It is not confined to cases where the inrule was applied in the two cases referred to, and also
strument, having been executed, is void upon grounds in the case of Ladd v. Griswold, 4 Gilm. 25. But there
of law and equity, but it is applied, even in cases of is no contest between individual and partnership cred
forged instruments which may be decreed to be given itors here, and hence the doctrine of marshaling as
up without any prior trial at law, on the point of forg. sets does not apply. In this case no claims had
ery." If this instrument is not void upon its face, been presented or allowed against the estate of any
then its validity depends upon testimony aliunde, aud character, except the one in controversy, and no in
testimony which rests wholly in parol, which is liable dividual creditor is resisting the allowance of the
at any time to be wholly lost, or placed beyond the claim.
reach of the parties injured by the fraud. In case of But independent of the authorities, we are satisfied
the death of complainant, the contract, and the means that the rule holding the estate of a deceased partner
of enforcing it, honest or otherwise, would be wholly primarily liable in equity, is sound in principle. Dog
in the control of the alleged forger and fraudulent gett, in his life time, was individually liable for his
claimant. She would be mistress of the situation, and debt, and if he had been sued, and a judgment ob
the heirs of a large estate might be wholly at her tained against him, any of his individual property
mercy. There is a charge of forgery and fraud; and would have been liable to be taken and sold in satisfac
we think the instrument, if a forgery and fraud, oaght tion of the debt. It is true, if he had been sued at law
to be canceled. If there be no remedy in equity for in his life-time, it would bave been necessary to join
* Appearing in 20 Federal Reporter,
such a wrong as is charged, then the law is indeed
not merely for the amount paid by him for them at the impotent to protect the community against frauds of foreclosure sale. The property, as well after foreclosthe most far-reaching and astounding character. If ure as before, is held for the benefit of both pledgor there is no precedent for a case upon the exact state of and pledgee, and must be disposed of for the benefit of facts disclosed by the 'bill, it must be because no in- both. The price bid at such sale does not operate as stance exactly like it has ever before arisen. The prin- payment upon the debt for which the mortgage was ciple however is established, and the occasion has pledged. Brown v. Tyler, 8 Gray, 135; Montague v. arisen for making a precedent, if none ever existed Boston & A. R. Co., 12A Mass. 242; Stevens v. Dedham before. Cir. Ct., Dist. Cal., March 3, 1884. Sharon v. Inst., etc., 129 id. 547; Slee v. Manhattan Co., 1 Paige, Hill. Opinion by Sawyer, J.
48; Hoyt v. Martense, 16 N. Y. 231; Dalton v. Smith, JURISDICTION --OF FEDERAL COURT - WHEN AT
86 id. 176; Smith v. Bunting, 86 Penn. St. 116;
Jones Pledg., $$ 659, 683. The evident principle upon TACHES-TRUST ESTATE--TRUSTEE REFUSING TO SUE
which these cases were decided is that the assignor or CESTUI QUE TRUST.-(1)The jurisdiction of a court attaches upon the service of process, and the court whose
pledgor of the collateral in each instance had an interprocess is first served upon the defendant will retain
est in the mortgage which could not be extinguished the cause. Union Mutual Life Ins. Co. v. Chicago, 6
by a procedure to which he was not a party, and it Fed. Rep. 443; Riggs v. Johnson Co., 6 Wall. 196;
seems clear that in this respect there can be no distincUnion Trust Co. v. Rockford, 6 Biss. 197. (2) A court
tion between the position of an assignor of notes sehaving gained prior jurisdiction of a cause by the ser
cured by a mortgage upon real estate, and that of an vice of its process is not deprived of its jurisdiction
assignor of notes secured by the pledge of bonds or by reason of the actual seizure of the property in con
other like securities. Cir. Ct., D. Ind., Jan. 9, 1884. troversy by the officer of a court having concurrent
First Nat. Bk. v. Ohio Falls Locomotive Works. Opinjurisdiction. To avoid such a result, the broad rule is
ion by Woods, J.
NEBRASKA SUPREME COURT ABSTRACT.
STATUTE OF FRAUDS-DEBT OF ANOTHER-WHEN law and comity, not to interfere with it. Chief Jus- WITHIN STATUTE-CONTRACT OF LABOR.-M. employed tice Marshall, in the case of Smith v. McIver, 9 Wheat. S. to do the carpenter work in and about the construc532, says "that in all cases of concurrent jurisdiction the tion of certain buildings. S. employed K. to labor for court which first has possession of the subject must de- him on said work. K. quit work and stated to M, that termine it conclusively." This rule the Supreme Court
he would work no more until he knew where his pay of the United States has approved in several subsequent was coming from. M., in reply, told K, that he wanted cases, notably, Buck v. Colbath, 3 Wall. 341; Riggs v. him to keep on with the work, and that he would see Johnson Co., 6 id. 166. (3) The jurisdiction of a court it paid, provided 8. did not pay for it, and K, conof the United States to which a cause has been re
tinued to work. Held, that the promise of M. was moved from a State court relates back to the time of void under the statute of frauds. In Young v. French, the original service of process, and the jurisdiction
35 Wis. 116, it is said: “Where the party promising thus acquired is not only prior, but is complete and has for his object some benefit and advantage accruing exclusive orer the defendant company's property.
to himself, and on that consideration makes the promMiller v. Tobin, 18 Fed. Rep. 609; Osgood v. Railroad ise, this distinguishes the case of an original underCo., 6 Biss. 330; Armstrong v. Mech. Nat. Bank, id. taking from one within the statute." Aud a large 524; 12 Chi. Leg. N. 176; Bills v. Railroad Co., 13 majority of the cases which we have examined seem Blatchf. 227. (4) The court first gaining jurisdiction of
to follow the rule; but none of them are upon a case a part of a trust estate is entitled to administer the similar to the one at bar. In fact our attention has whole, even though some portion of the property lies not been called to a similar case. In Clapp v. Webb, within the domain of another court. (5) When the 52 Wis. 641; 9 N. W. Rep. 796, it is said the Supreme trustees of a mortgage deed, executed for the security Court of that State has repeatedly decided that “the of bondholders, refuse to institute proceedings to en- alleged promise is within the statute unless it was force the security, the bondholders themselves are en- founded upon a new and independent consideration titled to prosecute a suit for that purpose. Cir. Ct., passing between the newly contracting parties.” We D. West Va., 1884. Owens v. Ohio Cent. R. Co. Opin
conclude that if this case is taken out of the statute, it ion by Jackson, J.
must be by virtue of a new and independent consider
ation passing between the parties, or by reasou of AGENCY--CONCEALED-RESPONSIBILITY OF PRINCI
some benefit and advantage accruing he promisor PAL-RATIFICATION.-(1) A party selling goods to
and that they, on that consideration, made the promanother and taking his individual acceptance therefor,
ise. It is claimed by the plaintiffs in error that may upon the discovery that the latter was really act
the decision in Rose v. O'Linn, 10 Neb.
364, ing in the interest of and under authority from a third
virtually disposes of this
in his favor. party, hold that third party responsible for payment.
Although there is, as we think, a difference between (?) A party who, without the authority of another,
that case and this, as in that a part of the services had purchases goods for him, which the other, knowing
been rendered, and it was claimed that the plaintiff in the purchase has been so made, accepts, becomes
error agreed to “see” the whole bill paid, yet the difthereby an agent, and the other as principal may be
ference is so slight as not to be material, and the rule required by the seller of the goods to pay the consider
laid down in that case must govern this. The defeudation. Cir. Ct., E. D. Wis., Apr. 12, 1884. Pope v.
ant in error claims that this case is similar to the case Meadow Spring Distilling Company. Opinion by
198; Dyer, J.
and the case of Clopper v. Poland, 12 Neb; 69; PLEDGE--MORTGAGE BONDS-ASSIGNEE-FORECLOS- and that they
decisive of this. In URE-MUST ACCOUNT. Where the pledgee of mort- the first case named, Morrissey had been working for a gage bonds assigns them as collateral security for a subcontractor on the grading of a railroad for Fitzgerdebt of his own, and the assignee, foreclosing against
ald. The subcontractor had failed to pay Morrissey, the original pledgor without joining the assignor as a and he, Morrissey, had determined to abandon the party, buys in the bonds himself, he is bound to ac- work. Fitzgerald, who had a large amount of grading count to the assignor for the bonds or their value, and to do, then promised Morrissey, if he would continue
to work on said grade for him, that in addition to the mon law a deed from a husband directly to his wife usual and regular wages, he would pay Morrissey the was void in law. 1 Co. Litt. 3a; Moyse v. Gyles, 2 amount due him from the subcontractor. In consider- Vern. 385; Beard v. Beard, 3 Atk. 72. The case of ation of this promise, Morrissey began to work for Fitz- Shepherd v. Shepherd, 7 Johns. Ch. 57, is a leading gerald. It was claimed by Fitzgerald, that the agree
American case, and while it holds that the conveyance ment to pay the amount due from the subcontractor in that case would be enforced as an evidence of an was within the statute of frauds, and void; but it was equity in favor of the wife, yet the chancellor, in the not found to be so, which was clearly correct. It was a opinion, states the law the same as the English cases new and independent contract, founded upon a cousid. above cited. He says: "The deed from H. S. to the eration. The amount promised Morrissey for his labor plaintiff was undoubtedly void in law, for the husband included the amount due him from the contractor. It cannot make a grant or conveyance directly to his wife was a direct promise, founded upon a consideration to during coverture. In equity the courts have frepay the debt. The case of Clopper v. Poland is based quently refused to lend assistance to such a deed, or to upon the same principle. Morrissey v. Kinsey. Opin- any agreement between them. Thus iu Stoit v. Agloff, ion by Reese, J.
1 Ch. Rep. 33, the husband promised to pay his wife [Decided May 27, 1884.)
100 pounds; they separated, and she filed her bill for DEED-BOUNDARY--MONUMENTSPAROL EVIDENCE
the sum. But the court would not relieve the plaint-EJECTMENT-EQUITABLE DEFENSE — ESTOPPEL- (1)
iff, because the debt was sixteen years old, and the In an action between others than the original parties
promise made by a husband to a wife, which the court to a deed, the intention of the parties to the convey.
conceived to be utterly void at law. Again in Moyes ance cannot be inquired into for the purpose of ascer
v. Gyles, 2 Vern. 385, the husband made a grant or astaining the land sought to be conveyed, if the calls in
signment of his interest in a church-lease to his wife. the deed refer to fixed monuments or points. (2)
She brought a bill, after his death, to have the defecWhere there is a call in a deed which was in fact not
tive grant supplied; and the court held the grant to be intended by the parties, and is unambiguous, the in
void in law, and dismissed the bill, as the grant was tention of the parties cannot be made to take the place voluntary and without consideration. So in Beard v. of the call; neither is parol proof competent to locate
Beard, 3 Atk. 72, the husband, by deed-poll, gave to the land. Iu McAfferty v. Conover, 7 Ohio St. 104,
his wife all of his substance which he theu had or the Supreme Court of Ohio uses the following lang
might thereafter have. Lork Hardwicke considered uage: “But where there is a call in a deed which was
the deed-poll to be so far effectual as to be a revocain fact not intended by the parties, and is found and
tion of a will by which the testator had given all his is unambiguous, the intention of the parties cannot be
estate to his brother, yet that it could not take effect made to take the place of the call; for if this could be
as a grant or deed of gift to the wife, because the law done, titles and lands would be transferred by the in
will not permit a man to make a grant or conveyance tention of the parties, and not by deed. Effect will
to his wife in his life-time; neither will this court sufbe given to the intention of the parties in respect to
fer the wife to have the whole of the husbaud's estate calls, only when the words of description they employ
while he is living, for it is not in the nature of a prowill adınit of it, and are not inconsistent with the in
vision, which is all the wife is entitled to." * It is to tention proved. Further than this, a court of law
be observed,” coutinues the chancellor, “that none of cannot go; beyond this is the region of equitable jur
these cases were determined strictly and entirely upon isdiction under the head of mistake." See also Piercy
the incapacity of the husband to convey to the wife v. Crandall, 34 Cal. 343; Jackson v. Wendell, 5 Wend.
according to the rule of law; and they do not preclude 146; 1 Greeul. Ev. 391. We therefore conclude that
the assertion of a rigbt in a court of equity, under the description given in the deed, as between these
certain circumstances, to assist such a conveyance. parties, must stand without explanation or change by
The court relied upon the staleness of the demand, in parol proof; and that the recording of said deed was
the first case, and upon the want of consideration, in not of itself sufficient to give notice of the alleged
the second, and upon the extravagance of the gift, in rights of the plaintiff. Calway v. Malchow, ņ Neb.
the third, as also constituting grounds for the decree; 287. (3) In an action of ejectment, where an equitable
and it is pretty apparent that if the grant in each case defense is pleaded, and under the allegations of such
had been no more than a suitable provision for the answer it is shown that the defendant bought the land
wife, the court would have been inclined to assist it. in question in good faith for a valuable consideration,
In Slanning v. Style, 3 P. Wms. 334, Lord Talbot said, taking immediate possession thereof, and with the
that courts of equity have taken notice of, and alknowledge of the plaintiff made valuable and lasting
lowed feme coverts to have, separate interest by their improvements thereon, the plaintiff taking no steps to
husband's agreement, especially where the rights of notify defendants of his claim, held, that he was es
creditors did not interfere. And in More v. Ellis,
Bunb. 205, articles of agreement executed between topped to set up his rights as against them. In Kirk v. Hamilton, 102 U. S. 68, it is said:
“There is no
husband and wife were held binding without the in
tervention of trustees. So in Lucas y. Lucas, 1 Atk. principle better established in this court, nor founded on more solid considerations of equity and
270, Lord Hardwicke admitted, that in chancery, gifts
between husband and wife have often been supported, public utility, thau that which declares that if one man
though at law the property is not allowed to pass; and knowingly, though he does it passively, by looking on,
he referred to the case of Mrs. H., and that of Lady suffer another to purchase and expend money on land,
Cowper. And in the very modern case of Lady Arun. under an erroneous opinion of title, without making
dell v. Phipps, 10 Ves. 146, Lord Eldon held that a buskuown his own claim, he shall not afterward be per
band and wife, after marriage, could contract for a mitted to exercise his legal right against such person.
bona fide and valuable consideration, for a transfer of It would be an act of fraud and injustice, and his con
property from the husband to the wife, or to trustees science is bound by this equitable estoppel." See also
And where, in contemplation of a separaFremont Ferry & Bridge Co. v. Dodge Co., 6 Neb. 25;
tion and divorce, a husband executed and delivered a Roy v. Molherson, 11 Neb. 200; Gillespie v. Sawyer.
conveyance directly to his wife of an undivided half Opinion by Reese, J.
of certain wild land, and without entry upon the laud [Decided May 21, 1884.]
or applying to any court for relief or aid in the premo MARRIAGE-DEED FROM HUSBAND TO WIFE--VOID ises, seventeen years afterward, she having in the AT LAW-GRANTEE OF WIFE GETS NO TITLE. -At com- mean time obtained a divorce and remarried, execu
ted a warranty deed of the land to the plaintiff, held, that the same carried no title to the plaintiff, and his petition for partition of said land dismissed. Johnson v. Vundervort. Opinion by Jobb, C. J. [Decided May 28, 1884.]
track ouce before. Stevens v. Dudley. Opinion by Ross, J.
PARTNERSHIP-ONE PARTNER GIVING FIRM PAPERBURDEN OF PROOF.-The law is well settled that oue member of a non-trading partnership has no authority to bind his copartner by a note made by him in the firm name without express authority therefor from his copartner, or when the giving of such instrument is necessary to the carrying on of the partnership business, or is usual in similar partnerships; and the burden is upon the party suing on a note given by one member of such firm to prove such authority or usage. Smith v. Sloan, 37 Wis. 285; Kimbro v. Bullitt, 22 How. 256; Zuel v. Bowen, 78 IIl. 234; Greenslade r. Dower, 7 B. & C. 635; Ulery v. Giurich, 57 III. 531; Hunt y. Chapin, 6 Lans. 139. The testimony introduced on the trial of the cause in the District Court does not disclose any such authority, necessity, or usage; and there is nothing in the record which will sustain a conclusion that either existed. Lalham. Opinion by Reese, J. [Decided May 27, 1884.]
NEVADA SUPREME COURT ABSTRACT.
VERMONT SUPREME COURT ABSTRACT.*
FRAUD-ORDER ON EMPLOYERS-RECEIVING MONEY AFTER GIVING. The defendant, quarryman, gave an order on 0. & Co., his employers, to pay bis monthly wages to the plaintiff, for his, defendant's, monthly store bill, and to pay an old debt due the plaintiff. Notice was given to 0. & Co. of the order. They refused to accept it, but did however pay the wages to the plaintiff for several months, then notified him that they would do so no longer, and paid directly to the defendant. O. & Co. alone were responsible for the discontinuance of the payments to the plaintiff. Held, that the receiving of his wages by the defendaut, although he was then indebted to the plaintiff, did not amount to a tort; and that an action brought upon the theory that the defendant was liable as for a tort could not be maintained. The case is not like Troy v. Aikens, 46 Vt. 55, relied upon by the plaintiff. In that case the defendant misappropriated to his
a promissory note issued by the town, and the town was thereby compelled to pay the same. Here the defendant has not misapplied any money or other valuable thing of the plaintiff; and so the element of fraud is Jacking. The conclusion we reach does not debar the plaintiff from maintaining an action ex contractu to recover the balance his due. McGuire v. Kiveland. Opiniou by Powers, J.
NEGLIGENCE-EVIDENCE IN REBUTTAL-NEW RULES. -(1) The plaintiff, while attendiug the annual fair of the Washington County Agricultural Society, received the injuries complained of by collision with a runaway team, which just prior to the accident was driven by one S. The defendant was one of the marshals of the society; and wbile clearing the track preparatory to a trial of speed of horses, wbich was about to begin, he turned S., with his team, off the track. In the act of turning, S. was thrown out of his carriage, the horses broke loose, ran against the plaintiff's carriage, and so caused the injuries. The question being whether the defendant exercised the requisite prudence, or was negligent, the court below charged: “Was the defendant guilty of a wrong in the manuer of requiring this S. to leave the track? If so, did he do an act which a person thus acting must have adjudged, would in the natural course of events be the natural consequence of that act, to set those horses loose, adrift, into that crowd, and cause them to run away? If not, then there is no recovery." Held error; that the question was not what the defendant, or a person thus acting, might reasonably expect, or adjudge, would result from the act; but that if the defeudant negligently turned the team up the bank, off the track, and S. thereby lost control of his team, which broke loose and so caused the damage, without any superior, uncontrollable force, or without the negligence of a responsible agent having intervened, the defendant would be liable; and that this is 80, although the negligent act was committed in the performance of a legal duty. (2) Testimony was admissible to prove all the considerations and circumstances which might legitimately influence the defendant's acts in the removal of S., and what occurred prior to the accident, between S. and the defendant, and S. and the policemen, as that he bad beeu ordered off the
*To appear in 56 Vermont Reports.
GARNISHMENT-CLAIM AGAINST ESTATE-NOT SUBJECT TO LEVY.-No order for distribution to creditors having been made, a claim against the estate, although allowed and approved, cannot be garnished in the hands of the executor, or be subject to levy or sale at the instance of a creditor of the party to whom such claim is due. These funds must travel only in the path pointed out by the laws relating to decedents' estates in their various brauches, and cannot be directed out of that path without interfering with salutary regulations, and violating some of the most important provisions of the acts of assembly. See also Barnes v. Treat, Mass. 271; Brooks v. Cook, 8 id. 247; Thorn v. Woodruff, 5 Ark. 55; Stout v. La Follette, 64 Iud. 365; J. I. Case T. M. Co. v. Miracle, 64 Wis. 295; S. C., 11 N. W. Rep. 580; Colby v. Coates, 6 Cush. 558; Thayer v. Tyler, 5 Allen, 94; Walch v. Gurley, 2 Hayw. (N. C.) 334; Young v. Young, 2 Hill (S. C.) 425; Curling y. Hyde, 10 Mo. 374; Winchell v. Allen, 1 Conn. 383; Lyons v. Houston, 2 Harr. (Del.) 349; Waite v. Osborne, 11 Me. 185; Wilder v. Bailey, 3 Mass. 289; Marvin v. Hawley, 9 Mo. 382; Hill v. Lacrosse, etc., R. Co., 14 Wis. 291; Dawson v. Holcomb, 1 Ohio, 275. Nortont v. Clurk. Opinion by Belknap, J. (Decided Feb. 12, 1881.]
EASEMENT-OBSTRUCTING RIGHT OF WAY-FORCIBLY REMOVING.-(1) An easement does not divest the owner of the soil of the possession thereof, nor does the right of way coufer any possession on parties using the easement as against such owner. Read v. Leeds, 19 Conn. 187; and see Wood v. Truckee Turnpike Co., 24 Cal. 487; San Francisco v. Calderwood, 31 id, 589. (2) Where the plaintiffs are in possession of a piece of land, over which the defendants have a right of way, and the plaintiffs inclose the same, the defendants, while they have a remedy iu law for the obstruction, have no right to enter forcibly to remove it and to detain the possession with strong band. People v. Leonard, 11 Johns. 509; Mitchell v. Davis, 23 Cal. 384; Porter v. Cass, 7 How. Pr. 445; People v. Van Nostrand, 9 Weud. 53; Voll v. Hollis, 60 Cal. 573; Allen v. Tobias, 77 III. 171; Krevet v. Meyer, 24 Mo. 110; Harris v. Turner, 46 id. 439; Bartlett v. Draper, 23 id. 408; 2 Bish. Crim. Law (7th ed.), $ 490. (3) The exclusion of evidence which merely tended to prove the use of the easement by the defendants and their tenants, the allegation of which is not denied, is neither erroneous