Gambar halaman
PDF
ePub

adjoining ground. This rule however is not artificial, that permitting dry grass and stubble to accumulate and of positive institution, but is founded on the pre- on its right of way is not negligence per se. (Railroad sumption, in absence of proof, that the highway Co. v. Butts, 7 Kans. 314), yet the accumulation may was originally granted by the adjoining proprietors be to such an extent, at such a season of the year, and over tbeir land in equal proportion. This is not a pre- | in such proximity to the track, that a jury would be sumptio juris et de jure, but a reasonable presumption, justified in holding the company guilty of negligence. based on probability. Where it appears however that In the case of Kesee v. Railroad Co., 30 Iowa, 78, the the highway was laid wholly over the land of one per- court laid down this rule: “ To allow the dry grass, son the presumption is annulled, and to hold by infer- weeds, and other combustible matter, the natural acence against fact that the fee of one person should be cumulations of the soil, to remain on the right of way, extended beyond his land, and of the other re- is not negligence per se; but there may be such pecustrained to narrower limits, because he had been paid liar or unusual circumstances iu a given case as to for a right of passage over a part of his soil, would be a amount to negligence in fact; and when such circummost inequitable fiction, in opposition to the established stances exist, they are proper to be submitted to a maxim that in fictione juris semper existit æquitas.jury for the purpose of establishing the fact of negliSo in Dunbam v. Williams, 37 N. Y. 251, 252, it was gence.” We think it is generally true that when the stated that a deed bounded on a highway prima facie evidence shows au accumulation of dry grass and stubcarries the title of the grantee to the center of the road ble, it is a question of fact for the jury whether the acon the assumption that the grantor owns it; but where cumulation is such and under such circumstances as to it appears that it was in fact owned by another, the inpute negligence. Here by the statement, not only terms of the deed are satisfied by a title extending was the natural growth of grass on the right of way to the roadside. And it was accordingly held that standing in places in rank stools, but further, in a dry where land covered by the road bed belonged to the ditch was an accumulation of tumble-weeds and other government, and not to the adjacent owners, as in the like matter. This was in the fall of the year, at a case of the ancient road from Flatbush to Brooklyn, a very dry time; and whether the accumulation at such deed bounding land upon such a highway carried title time and under such circumstances was sufficient to only to the roadside. In Taylor v. Armstrong, 24 Ark. charge negligence upon the company is a question 102, 107, the converse of the proposition held in Dun- wbich the jury should have been permitted to pass ham v. Williams was maintained, viz: that if a highway upon. Kellogg v. Railroad Co., 26 Wis. 235; Flynn v. bo laid out wholly upon a person's land, running along Railroad Co., 40 Cal. 14; Railroad Co. v. Shanefelt, 47 the margin of the track, and he afterward conveys the III. 497; Railroad Co. v. Nunn, 51 id. 78; Barron v. land, his grantee takes the fee in the whole of the soil | Eldridge, 100 Mass. 455; Webb v. Railroad Co., 49 N. of the highway. Healey v. Babbitt. July 5, 1884. Y. 420; Snyder v. Railroad Co., 11 W. Va. 14; 38 Am. Opinion by Malleson, J.

Dec. 6, and cases cited. White v. Missouri Pac. R. CONVERSION-EVIDENCE-RECEIVING IN GOOD FAITH

Co. Opinion by Brewer, J. -WHEN AGENT LIABLE.-Ordinarily, when one person

LIMITATION-NOTE SCHEDULED IN ASSIGNMENThas the chattel of another it is his duty to deliver it PARTIAL PAYMENT:—Where the maker of a note thereto the owner or his agent on demand, and if he refuses after made au assignment for the benefit of creditors, to do so his refusal is evidence of a conversion. It is and in such assignment scheduled this note and dihowever only prima facie evidence, and may be ex- rected his assignee to convert the assigned property plained. Magee v. Scott, 9 Cush. 148; Robinson v. into money aud pay his debts, and in pursuance Burleigh, 5 N. H. 225; Dietus v. Fuss, 8 Md. 148; thereof the assignee took possession and converted Green v. Dunn, 3 Camp. 215; Solomons v. Dawes, said property into money, and applied the same in 1 Esp. 83. Thus it is no conversion for the bailee of a part payment of the assignor's debts, this note among chattel, who has received it in good faith from some the number, held, that the payment, being one made person other than the owner, to refuse to deliver it to in pursuance of express directions from the assignor the owner making demand for it, uutil he has had for his benefit and out of the proceeds of his property, time to satisfy himself in regard to the ownership. | is such a payment as under section 24 of the Code Carroll v. Mix, 51 Barb. (S. C.) 212; Lee v. Bayes, 18 C. avoids the bar of the statute of limitations; and this B. 599, 607; Sheridan v. New Quay Co., 4 C. B. (N. S.) notwithstanding the proceedings under the assign618; Coles v. Wright, 4 Taunt. 198. In the case of a ment are controlled by the provisions of a general statservant who has received the chattel from his master, ute concerning assignments for the benefit of crediit has been held that he ought not to give it up with- tors. Here, statutes of limitation are held to bo statout first consulting his master in regard to it. Mires utes of repose. Taylor v. Miles, 5 Kans. 499; Elder v. v. Solebay, 2 Mod. 242, 245; Alexander v. Southey, 5 Dyer, 26 id. 604. Partial payments made by one debtor B. & A. 247; Berry v. Vantries, 12 Serg. & R. 89. But will not suspend the running of the statute in favor of if after baving had an opportunity to confer with his other debtors on the same obligation. Steel v. Soumaster, he relies on his master's title, and absolutely der, 20 Kans. 39. But here the party sought to be refuses to comply with the demand, he will be liable charged is the one for whom and out of whose propfor a conversion. Lee v. Robinson, 25 L. J. (C. P.) 249; erty the payment was made. It was made in pursu18 C. B. 599; 1 Ad. on Torts, 475; Greenway v. Fisher, ance of an express direction. So upon the maxim qui 1 Car. & P. 190; Stepheus v. Elwall, 4 M. & S. 259; facit per alium, facit per se, it would seem that this Perkins v. Smith, 1 Wils. 328; Gage v. Whittier, 17 N. payment was within the very letter of said section 24. H. 312. The mere fact that he refuses for the benefit Letson v. Kenyon. Opinion by Brewer, J. of his principal will not protect him. Kimball v. Bill

BANK-OFFICERS SELLING SAFE-WHEN BANK NOT ings, 55 Me. 147. Singer Manuf. Co. v. King. June 2, 1884. Opinion by Durfee, C. J.

BOUND BY.-Neither the president nor cashier of a bank organized under the laws of the State has the

power, virtute officii, to sell the safe of the bank for a KANSAS SUPREME COURT ABSTRACT.* debt of the bank. This court in the case of National JANUARY TERM, 1884.

Bank v. Drake, 29 Kans. 325, said: “The directors

constitute the governing body of the bank, the bank NEGLIGENCE-PERMITTING DRY GRASS TO ACCUMU

itself being an incorporeal entity, without power to LATE-QUESTION FOR JURY.-While it may be conceded

see or know. The directory constitutes the visible *Appearing in 31 Kansas Reports.

representative, the thinking, knowing head of tbe

[ocr errors][ocr errors]

bank.” Morse on Banks and Banking, 107, thus states the rule. “The general control and government of all the affairs and trausactions of the bank rest with the board of directors. For such purposes the board constitutes the corporation, and uniform usage inposes upon them the general superintendence and active management of the corporate concerns." The cashier is the executive of the financial department of the bank, and whatever is to be done, either to receive or pass away the funds of the bank for banking purposes, is done by him or under his direction; he therefore directs and represents the bank in the reception and emission of money for banking objects. United States v. Bank, 21 How. 356; Merchants' Bank v. State Bank, 10 Wall. 604; Com. Bank v. Norton, 1 Hill, 501. But neither the president nor the cashier can impose by his own action, on the bank, any liability not already imposed by law or usage; nor can they biud the bank, in the absence of authority from the directors, by any agreements or contracts outside of the range of their duties. Bank v. Dunn, 6 Pet. 51. The mere fact that they had conducted the business of the bank gave them no authority to make the sale. As these officers had no power to execute the bill of sale, and as it is not claimed that the directors ever ratified their act, the plaintiff below was not the owner of the safe at the commencement of her action. Bank v. Dunn, 6 Pet., supra; Bank of Metropolis v. Jones, 8 Pet. 16, 17; Adriance v. Roome, 52 Barb. 399; Walworth County Bank v. Farmers' Loan & Trust Co., 14 Wis. 325; Chicago & N. W. Railroad v. James, 22 id. 194; Blood v. Marcuse, 38 Cal. 590; Angell & Ames on Corp., $ 298, pp. 322, 323. Asher v. Sutton. Opinion by Horton, C. J.

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

IOWA SUPREME COURT ABSTRACT.

See also 1 Dill. Mun. Corp. (3d ed.), $$ 480, 481, 482, and authorities cited in notes. There is a class of cases which hold in substance that when the powers of a municipal corporation are defined in the charter or a statute, persons contracting with the corporation are bound to know the extent and character of such pow. ers, and therefore deal with the corporate authorities at their peril. Craycraft v. Selvage, 10 Bush (Ky.), 696; Zottman v. San Francisco, 20 Cal. 96; Swift v. Williamsburg, 24 Barb. 427. Conceding the correctness of these cases, we do not think they have any application to the case at bar; for if the plaintiff had looked at the statute he would have ascertained that the city had the power to grade its streets and pay therefor out of the general fund, and that it did not have the power to make an assessment on the abutting owner, and we think he had the right to conclude that the city would and was bound, as no assessment could be lawfully made to pay him out of the general fund. Becroft v. City of Council Bluffs. Opinion by See vers, J. [Decided June 6, 1884.)

NEGLIGENCE-RAILROAD_TRAVELLING ON ANOTHER'S PASS-FRAUD-COMPANY NOT LIABLE.--A person who travels on a railroad train on the ticket of another contrary to the rule of the company printed on the ticket, and without the consent of the company's agents, perpetrates a fraud, and in case of his receiving injuries during the trip the law of common carriers cannot be invoked to make the company responsible. The doc. trine was very clearly expressed in T., W. & W. R. Co. v. Beggs, 85 Ill. 80. In that case the court said: "Was defendant a passenger on that train in the true sense of that term? He was travelling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances the company could only be held liable for gross negligence which would amount to willful injury." In Thomp. Carr. Pass., p. 43, $ 3, the author goes eren fur. ther. After stating the rule that the relation of carrier and passenger does not exist where one fraudulently obtains a free ride, it says: “This doctrine extends further, and includes the case of one who know ingly induces the conductor of a train to violate the regulations of the company, and disregard his obligations of fidelity to his employer..” In U. P. Ry. Co. F. Nichols, 8 Kang. 505, the defendant in error imposed himself upon the company as an express messenger, and obtained the consent of the conductor to carry him without fare. It was held that he did not become entitled to the rights of a passenger. The court, after quoting Shearman & Redfield's definition of a passenger, which is in these words: “A passenger is oue who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, other than in the service of the carrier as such," – proceeds to say: “The consent obtained from the conductor was the consent that an express messenger might ride without paying his fare. Such consent did not apply to the plaintiff” (the defendant in error). See also the following cases : T., W. & W. R. Co.v.Brooks. 81 III.292; M. & C. R. Co. v. Chastine, 54 Miss. 503; Creed v. P2 R. Co., 86 Penn. St. 139; Relf v. Rapp, 3 Watts & S. 21; Hayes v. Wells, Fargo & Co., 23 Cal. 185. The plaintiff cites and relies upon Bissell v. Railroad Cos., 22 N. Y. 308; Washburn v. Nashville, etc., R. Co.,3 Head, 638 ; Jacobus v. St. Paul, etc., R. Co., 20 Minu. 125 (Gil. 110): Pa. R. Co. v. Books, 57 Penn. St. 346; Wilton v. Middlesex R. Co., 107 Mass. 108; Flint, etc. R. Co. v. Weir, 37 Mich. 111; Dann v. Grand Trunk Ry. Co., 58 Me. 192; Edgertop v. N. Y., etc., R. Co.

, 39 N. Y. 227; Gregory v. Burlington, etc., R. Co., 10 Neb. 250; S. C., 4 N. W. Rep. 1025; Great Northern R.

[ocr errors]

STATUTE OF LIMITATIONS-ABSENCE FROM STATENON-RESIDENT.- Where a person leaves a State in which he resides, under the employment of the general government, with the intentiou of returning as 8001 as his employment terminates, but retains no property or business interests in the State, he is a nonresident within the meaning of the statute, although his wife remains in the State for a portion of the time; and the statute of limitations will not run in his favor against an action on a promissory note during his absence. This view is sustained by the previous holdings of this court. Penley v. Waterhouse, 1 Iowa, 498; Savage v. Scott, 45 id. 133. And to the same effect is Hackett v. Kendall, 23 Vt. 275. And in Sleeper v. Paige, 15 Gray, 349, and Ware v. Gowen, 111 Mass. 526, it is beld by the Supreme Court of Massachusetts, in facts similar to those in the present case, that the par. ties were non-residents of the State within the meaning of the statute of limitations of that State, which is identical in its provisions with our statute. Hedges v. Jones. Opinion by Reed, J. [Decided June 4, 1884.]

MUNICIPAL CORPORATION-ADMITTING DEBT, LIABLE UNDER CONTRACT.-- When a city admits the existence of a debt, and issues certificates of assessment to the end that the plaintiff could be paid out of a particular fund created by the city, it must be assumed it guarantees, or by implication contracts, that such fund exists, or that it has taken and has the power to take the steps necessary to create such fund. Now wher it turns out that there was no such fund, and that the power to create it did not exist, it seems to us that the city should not, and cannot, escape all liability under the contract, and it has been so held.

Kearney v. City of Covington, 1 Metc. (Ky.) 339; Sleeper v. Bullen, 6 Kans. 300; Maher v. City of Chicago, 38 III. 260.

[ocr errors]

Co. v. Harrison, 10 Exch. 376. But none of these cases other officers, whose duty it is to approve of these hold that the extraordinary care described in the in- bonds, are held to a great extent to responsibility in struction given is due to a person'not a passenger, and taking proper security in this class of cases by a just none of them hold that the relation of passenger can publio opinion, from which they cannot be permitted be insisted upon where the company shows affirma- to shield themselves in the course pursued by this retivelp as a defense that the company's consent was ob- spondent. The real purpose of the statute is that pertained by fraud. May v. Chicago, R. I. & Pac. R. Co. fectly safe bonds shall be taken for the protection of Opinion by Adams, J.

all parties, and this purpose must not be defeated by [Decided June 7, 1884.)

proceedings of the sort complained of in this case. We are all of the opinion that the action taken by the

treasurer in this case can find no support in law or MICHIGAN SUPREME COURT ABSTRACT. right, and should not be sustained. If authority were

needed upon the construction of the statute as we have AGENCY IMPLIED POWERS CONVERSION FIX

given it, it will be found in Ferry v. Williams, 41 N.J. TURES. -The general agent and and manager of a min- Law, 332; 19 Am. Law Reg. (N. S.) 154, which we fully ing company is presumably empowered to sell its per- approve. The request of the petitioner was a reasonsonal property. The sale on execution of personal able one, and it was the duty of the officer to comply property belonging to a third person amounts to a with it when made. The writ of mandamuz must be couversion, whether the officer making sale removes it granted as prayed, with costs against the respondent. or not. Ordinary movable office furniture and ordi- Brown v. Washtenau County Treasurer. Opinion by nary vehicles are not fixtures, aud the question Sherwood, J. whether personal property in use about a mine can be [Decided June 11, 1884.] so regarded, is a question of the intent with which it

NEGLIGENCE-MUST BE PROVED— INFERRED FROM was attached to the freehold. Personal property that

CIRCUMSTANCES SPARK-ARRESTER CONTRIBUTORY can be removed from the land cannot be part of the

NEGLIGENCE.-The party counting upon negligence realty, when the owner does not also own the land.

must adduce affirmative proof of it. Lake Shore, etc., This was decided in Adams v. Lee, 31 Mich. 440; and

R.Co.v.Miller,25 Mich. 274; Macomber v.Nichols,34 id. Robertson v. Corsett, 39 id. 777. Scudder v. Anderson.

212; Grand Rapids, etc., R. Co. v. Judson, id. 507; Opinion by Campbell, J.

Browu v. Street R. Co., 49 id. 153. But negligence, like [Decided June 11, 1884.)

any other fact, maybe inferred from the circumstanMANDAMUS-COUNTY TREASURER, INSPECTION OF ces, and the case may be such, that though there be no LIQUOR BOND.-The papers presented in this case show positive proof that defendant has been guilty of any a most extraordinary proceeding on the part of the

neglect of duty, the inference of negligence would be county treasurer. A member of the board of review irresistible. Such a case is seen in Higgins v. Dewey, of Ann Arbor, who bad been for the two previous 107 Mass. 494, a case of fire set for the burning of brush years a supervisor in Washtenaw county, on applica- on agricultural lands. See also Kearney v. London, tion to that officer for permission to inspect a liquor etc., R. Co., L. R., 6 Q. B. 759; Field v. N. Y. Cent. R. bond, is denied the privilege on the ground that the Co., 32 N. Y. 339. Now what are the facts in this case? treasurer regards it as unnecessary for the purpose The defendants constructed, in connection with their stated by the petitioner. It is not pretended that such mill, a burner, whereby they might be enabled to conpurpose is an unlawful one, or that the request was sume and get rid of the waste and refuse stuff of their not respectfully made. The county treasurer holds a business. The burner, as we understand it, was not a poblic office, and the statute requires the liquor bonds necessity to their business, but it was constructed as a to be filed therein and to be kept by the treasurer. means of saving something in the cost of removing They thereby become public records, and as such may sawdust, slabs, etc. It was what may be described as be examined and copies taken thereof by any citizen.

a tall and very large chimney, and the draught There are many and very good reasons why the citi

through it, when a fire was burning, was very strong zens may and should have this right: (1) As a citizen and powerful. Only a very perfect spark-arrester to hold the board, whose duty it is to approve the

could prevent a stream of large cinders pouring out of bond, to public accountability for accepting insufficient

it when the draft was open. The evidence was strong bonds; (2) to prosecute sureties criminally when they that fires were frequently started by cinders which have falsely sworu to responsibility; (3) to see if there

came from it; that such an occurrence might reasonis sufficient security for any citizen, widow, child, or

ably be looked for whenever a strong wind was blowparent who may have a right of action for violations ing. The sparks, so called, which ignited the plaintof the license law (which frequently occurs) against

iff's building, could not have been mere sparks. A the liquor-seller and his sureties, and to see that they spark could scarcely have retained sufficient vitality are not forged; (4) as assessor or other tax officer, who

and substance, after being carried that distance, to may desire to compel parties who may have property,

communicate fire to a building. It was in proof that according to their oaths given on justification, to pay

the spark-catcher was bent in at the top, as a consetheir share of the taxes; and for many other purposes

quence of the heat; and though there was no direct which readily occur to any one who has given any at

evidence that any wires were broken, or the openings tention to the subject. It is no answer to say that the

in it increased, the very manner in which the sparks time has gone by for performing the official act by the poured out of it, and started fires at a distance, would person desiring the information sought, or that the suggest, if it did not fully justify, an inference that purpose iutended, in the judgment of the respoudent, in some way it was defective, and such an inference is not a commendable or proper one, so long as it is not

might have been fully warranted if the plaintiff had criminal, when the inspection is desired. The law

shown, as she offered to do, and as she should have does not rest in the treasurer any such discretionary

been permitted to do, that after a change was made in power to deprive the citizen of a substantial right the spark-catcher immediately following the fire, the given by the statute, one in which he may have large

dangerous emissions of sparks through it ceased pecuniary interests, and of which he may be deprived

altogether. But the evidence the plaintiff gave was if the action of the treasurer in this case can be sus

precisely such as in Lehigh Valley R. Co. v. McKeen, tained, and the most beneficial object of the act under

90 Peun. St. 122, was held to require the court to subwhich the bond is given defeated. City boards and

mit the case to the jury. But it is said on behalf of

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

the defendants that the plaintiff was guilty of con- CHATTEL MORTGAGE-NOT GIVEN TO SECURE DEBT-
tributory negligence, and for that reason, if for no INVALID.—To constitute a valid chattel mortgage, il
other, the verdict should be permitted to stand. The given to secure a debt, it must be one due from the
contributory negligence suggested is that the plaintiff mortgagor to the mortgagee; if a liability, it must be
ereoted her buildings within a hundred yards or so of a liability incurred by the mortgagee for the morto
defendants' mill, after this dangerous burner had gagor; or any other agreement, it must be one between
been put up, and did not cover them with metallic the parties to the mortgage; the oath must conform to
roofs. It is not suggested that the buildings were ex- the purpose of the mortgage, verifying the truth, Fali-
ceptionally combustible, or that the roofs were of dif- dity, and justice of the debt; and the debt or obliga-
ferent material to that made use of by the plaintiffs tion be specifically described and with substantial
veighbors; but it is said, that in view of the danger to truth; thus the affidavit in the mortgage allegiug that
which she was exposed from the burner, she should the debt secured was “due and owing," etc., w23
have incurred the extra expense of a metallic roof for wholly false. But the plaintiff insisted that he had an
protection, and was negligent in not doing so. This equitable right to the property, claiming that prior to
strikes us as a most extraordinary proposition. The the execution of the mortgage he had agreed to loan
defendauts, not because it is a necessity to their busi- the mortgagor $1,500, to be secured on the printing
ness, but as a means of saving expense in getting rid of press in question; that at the time the mortgage was
the refuse, erect this dangerous burner, and having given he had advanced about $200, and that it was un-
done so, it is argued that by this contrivance of derstood this was secured by the mortgage; that he
money-saving to themselves they have imposed a bur. the plaintiff, entered into an arrangement with one T.
den upon all the property in the veighborhood, and to pay such portion of the $1,500, as he himself should
subjected all lotowuers to the necessity of incurring be unable to furuish, and so the note and mortgage
extra expense in any future erections which they may were executed to T., and placed in the hands of s
make in the vicinity. To state the argument boldly, third party, to become the property of T. when the
it seems to be that by erecting a neighborhood nuis- money was paid ; that T. never paid any thing; that
ance to save cost to themselves, the defendants have the mortgagor fraudulently misrepresented the value
imposed upon everybody in the neighborhood an obli- of the press; that in a short time it was attached and
gation of expense for protection against it, so that no sold by the defendant, an officer, on an execution in
one can be permitted to complaiu of the nuisance who favor of an attaching creditor against the mortgagor:
declines to incur this expense. We are aware of no that the plaintiff never advanced any thing more on
principle of law which will justify this species of econ- the note; that the holder of the note and mortgage,
omy at the expense of others. In Beauchamp v. Sagi- by direction of the mortgagor, delivered them up to
naw Mining Co., 50 Mich. 163, it was suggested that the plaintiff, though there was no transfer made by T.
the defendant could not afford to take certain precau- Held, that the chattel mortgage was invalid, and that
tions in the management of its business, which seemed an action of trover would not lie. Tarbell V. Jones.
necessary for the protection of the public; but the Opinion by Veazey, J.
court was of opinion, that if the business at the par-

SURETY-CONTRIBUTION-STATUTE OF LIMITATIONS
ticular place could not be profitably carried on, and
the rights of third parties at the same time respected

- The plaintiff and defendant were co-sureties ou a

promissory note. All the parties to the note, the and protected, then it must either be carried on at a loss or abandoned. And this, we still think, is perfectly

payee, the principal, and sureties were residents of

this State. After the statute of limitations became a reasonable. Alpern v. Churchill. Opinion by Cooley,

bar here, the plaintiff voluntarily and without the C. J.

knowledge of the defendant, but with no fraudulent [Decided June 4, 1880.)

intent, went to New Hampshire, where there was no de-
fense to the note, and there was sued by the payee,

judgment rendered against him, and he was compelled VERMONT SUPREME COURT ABSTRACT.*

to pay. Held in an action for contribution, that the

payment was compulsory, and vot voluntary, and that Quo WARRANTO-DISCRETION OF COURT- SCHOOL the defendant was liable. The legal right of sureties COMMITTEE.—It is now settled law that the granting as against each other is not governed by the lex loci conor withholding leave to file an information, at the in- tructus; neither is there any implied obligation that stance of a private relator, to test the right to an office they shall reside or remain in any particular locality. or franchise, rests in the sound discretion of the The right to contribution among co-sureties is not court to which the application is made, even though founded on the contract of suretyship, but is based on there be a substantial defect in the title by which the an equity arising from the relation of the co-oureties. office or franchise is held. State v. Fisher, 28 Vt. The right of action for coutribution acorues wheu one 714; State v. Smith, 48 id. 266; High Ex. Rem., has paid more than his proportion of their liability. It $$ 605, 628, and the cases there cited. And this on

is an equity which arises when the relation of co-surethe ground that he was eligible to the office and

ties is entered into, and upon which a cause of action competent; that he had hired teachers in good faith,

accrues, when one has paid more than his proportion and made provision for a school; that it was an annual of the debt for which they were bound. Burge Suroffice without emoluments; and that the best inter- 384; Theo.Pr. & S.$ 158; Camp v. Bostwick, 20 Ohio St. ests of the district required that he should be allowed

337; Peaslee v. Breed, 10 N. H. 489; Board man v. Paige, to continue through his term. The grounds upon

11 id. 431; Sibley v. McAllaster, 8 id. 389. Aldrich F. which courts have exercised discretion by denying the Aldrich. Opinion by Royce, C. J. petition have been the same as those established by

NEGLIGENCE-INJURY ON HIGHWAY the evidence in this case. In the exercise of the dis

CAUSE-KNOWLEDGE OF DANGER.-Knowledge of ex. cretion reposed in the court, and independent of the

isting danger is not per se negligence; but it is a fact question of the alleged defect in Mead's title, which is

to be weighed hy the triers as bearing upon the ques. sharply controverted by the defendant, and by no

tion of negligence. Clarke v. Holmes, 7 1. & N. 31; means clearly established by the relator, we think

Senior v. Ward, 1 E. & E. 385: Nave v. Flack, 90 Ind. every consideration demands a dismissal of the com

205; S. C., 46 Am. Rep. 205. Thus in an action to re plaint. State v. Mead. Opinion by Veazey, J.

cover for injuries received on the bighway, it appeared *To appear in 56 Vermont Reports.

that from a certain point there were two high wiys of

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

PROXIMATE

about equal length leading to the place where the there is any thing else than an absolute gift to the lega. plaintiff wished to go; that one was very near the rail- tees in the first instance, followed by a modification of road, and the otber more remote; that the plaintiff be- the mode of eujoyment. Under those circumstances ing acquainted with both roads, and kuowing that he I am of opinion that the brothers and sisters take unwas liable to meet a train of cars about that time, der the gift in the will merely an estate for life. I do took the one nearest to the railroad, but he did not not intend to decide any thing as to the interests of kuow of its insufficiency; that his horse became fright the children, as they are not before me. The case has ened at an approaching train, and that he was injured | been argued on behalf of two members of the family, by reason of want of repair of the highway. Held, who at all events had it as their interest that I should that the plaintiff had a right to presume that the high- give a contrary decision to the one I have given. All way was sufficient, and that his kuowledge did not I decide is, that under the gift in the will the brothers reach the proximate cause of the injury, and so did and sisters take a life estate only. Ch. Div., April 3. not coutribute to it. Templeton v. Montpelier. Opin- Matter of Houghton. Opinion by Pearson, J. (50 L. T. ion by Royce, C. J.

Rep. (N. S.] 529.)

WILL-SPECIFIC LEGACY-ADEMPTION.--A testatrix RECENT ENGLISH DECISIONS.

by her will directed her trustees to stand possessed of

1,5001. now invested in the Bombay, Baroda, and CenPARTNERSHIP-JOINT LIABILITY-JUDGMENT-MER

tral India Railway Company, upon trust, in case her GER--PROOF AGAINST ESTATE OF ONE PARTNER.—The

brother, who had not beeu heard of for some years, firm of 1. having been employed by the executors of should present himself to the trustees withiu a period B. to sell certain crops, etc., paid over a part of the of five years, to pay him the income during his life, proceeds, but were adjudicated bankrupt on the peti- and after the period of five years, or the death of her tion of the executors of B. in 1880 upon a judgment brother, whichever event should first happen, the tesfor the balance. The executors of B. proved as creditatrix bequeathed 5001., “ being part of the said Bomtors of the joint estate. Subsequently H. S. D., one of bay, etc., stock," to the treasurer of the Asylum for the partners in the bankrupt firm, became entitled to Destitute Sailors, in the neighborhood of the East Ina legacy and to other moneys, and the executors of B.

dia Docks. The testatrix was not possessed of any attempted to withdraw the proof against the joint es

Bombay, etc., stock, at the time of her death, and her tate and prove against the separate estate of H. S. D.

brother had never been heard of since the date of the The trustee rejected the proof on the ground that the

will. Held, that the legacy to the asylum was specific, creditors were bound by their election, and his decis.

aud the gift failed. Ch. Div., March 27, 1884. McCleion was reversed by the County Court judge. On an

lan v. Clark. Opinion by Pearson, J. (50 L. T. Rep. appeal from his decision, held, that the ground upon

[N. S.) 616.) whicb the trustee had rejected the proof was wrong, but that in order to entitle them to prove against the

FINANCIAL LAW. separate estate of H. S. D., the respondents must prove that they had a separate cause of action against him. NEGOTIABLE INSTRUMENT-NOTE UNDER SEAL, NOT. Held, also, upon an argument that the separate cause -An instrument in the form of a negotiable promisof action was merged in the joint judgment, that it sory note, but with the device “[Seal]" after and opwas not so merged. Q. B. Div., March 31, 1884. Matter posite the signature of the maker, is, though there be of Davison. Opinion by Cave, J. (50 L. T. Rep. [N. no reference to a seal in the body of the instrument, a 8.] 635.)

sealed instrument, and not a negotiable promissory WILL-CONSTRUCTION--GIFT OF RENTS--LIFE ESTATE. note. Undoubtedly where there is a scroll or device -A testator bequeathed leaseholds to a trustee upon

upon an instrument there must be something upon the trust to give yearly equal portious of the rents to the

instrument to show that the scroll or device was intwo brothers and three sisters of the testator; that

tended for and used as a seal. The scroll or device was to say, each to receive one-fifth part of the net

does not necessarily, as does a common-law seal, estabproceeds of rent, and he directed that on the decease

lish its own character. Such words in the testimonium of any or all of his brothers and sisters, “the same

clause as witness my hand and seal " or “sealed should go to their children." Held, that the brothers

with my seal,” would establish that the scroll and sisters of the testator took life interests only. In

or device was used a seal. No such refScawin v. Watson, 10 Beav. 200, affirmed by Lord Cot

erence in the body of the iustrument was tenham, C., 9th of July, 1847, the last case referred to essary in the case of a common-law seal. 2 Coke, 5a; upou this subject, there were words of absolute gift of 3 Bac. Abr. 163. Nor is there any reason to require it the 1,0001. ; but the master of the rolls considered the in the case of the statutory substitute, if the instruwhole direction to amount to a gift of the 1,0001. for

ment anywhere shows clearly that the device was the benefit of the daughter, to pay her the interest for used as and intended for a seal. It would be difficult to life, with remainder to her cbildren; and upon appeal conceive bow the party could express that the device I concurred in this opinion, and affirmed his lordship’s

was intended for a seal more clearly than by the word order. I have therefore to consider here whether seal,” placed within and made a part of it. Sup. Ct. upou the construction of this will this was intended to Minn., May 31, 1884. Brown v. Jordhal. Opinion by be an absolute gift of one-fifth share in these houses to

Gilfillan, C. J. (19 N. W. Rep.) each of the testator's brothers and sisters; or whether NEGOTIABLE INSTRUMENT-TITLE OF PURCHASER it is a gift over, in case they had children, then to AFTER MATURITY--SUBJECT TO EQUITIES.-The title of those children; or wbether under the terms of this the owner of personal property or things movable canwill this is only a gift for life to each of the brothers not be divested except by his consent or by operation aud sisters, with a gift over to the others of thein in of law. To this rule there are exceptions arising out case any of them had no children. I am of opinion that of the character of the property, among which are the latter is the right construction. I can see nothing bank notes, checks payable to bearer which pass by whatever here in the shape of an absolute gift of these delivery and circulated as money, and drafts, bills and two houses. The houses are given, in the first in- negotiable promissory notes transferred before matustance, not to the legatees but to the executors, to rity. But if transferred after maturity for value and hold on the trusts following. I think there is nothing in due course of business, such drafts and promissory ou the face of this will authorizing me to say that notes in the hands of the holder are subject to the

as

neo

« SebelumnyaLanjutkan »