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Clabaugh, 1 Gilm. 26. And to the same effect is Mc" Cready v. Sexton, 29 Iowa, 356. A party applying for a mandamus must show a clear, legal right to have the thing sought by it to be done, and if the granting of the writ will do the party applying for it no good it will be refused. People v. Chicago & Alton R. Co., 55 Ill. 95; Commissioners of Highways v. Bonker, 66 id. 339; People v. City of Elgin, id. 507; People v. Klokke, 92 id. 134; People ex rel. v. Dulaney, 96 id. 503; People ex rel. v. Johnson, 100 id. 537. And so the question of the sufficiency of the deed to convey the title, when made as asked, would always be a pertinent question in such cases. We think it is contrary to the policy of the law that mandamus should issue where its sole purpose and effect is, as it is here, to relieve from the consequences of the mistakes or omissions of the party applying for it. Klokke v. Stanley. Opinion by Scholfield, J.
RHODE ISLAND SUPREME COURT
WILL-LEGACY-EXECUTOR OR TRUSTEE-RESIGNABREACH OF BOND. A legacy was given to A., who was also named executor, "to be by him invested in his name as executor of my estate, and the interest that may mulate thereon to be paid by him to F. during the term of his natural life," with remainder over. The executor's bond was conditioned "well and truly to administer" the personal estate of the testator which should come into his hands "according to law and the provisions of said will." A. never invested the legacy in his name as executor, but used it in his business without objection from F., who duly received the interest. A. in his first account to the Probate Court charged off the legacy as having been paid to himself. This was allowed, but the court subsequently revoked the allowance, and required A. to recharge himself with the amount as executor. A. afterward resigned, settled his account, and turned over the legacy to an administrator, with the will annexed. In an action on A.'s bond as executor, in which the pleadings raised the one question of whether there had been a breach of the conditions of the bond. Held, that A. took the legacy as executor, not as trustee. The law in this particular is excellently elucidated by Chief Justice Shaw in Newcomb v. Williams, 9 Metc. 525. When personal estate is bequeathed in trust to some person other than the executor, the executor remains liable for it on his bond until he turns it over to the trustee. When the bequest is to the executor himself, then it is sometimes difficult to say, especially if the bequest be pecuniary, when the executor ceases to be an executor and begins to be a trustee. It is settled however that the change must be evinced by some open and notorius act, and cannot be effected by a mere mental determination; and in Massachusetts, where trustees are required to give bond before assuming the trust, it is held that the executor will remain liable as executor until he gives bond as trustee. Dorr v. Wainwright, 13 Pick. 328; Prior v. Talbot, 10 Cush. 1; Miller and Wife v. Congdon, 14 Gray, 114; Probate Court of Newport v. Hazard, 13 R. I. 1; Depeyster v. Clendining, 8 Paige, 295, 310. It has also been held that a trust, if not expressly created, will not necessarily be implied, because the will imposes duties different from what are ordinarily required of executors, but the duties will be regarded as duties superadded by the will, and the executor and his sureties will be liable on their bond for the performance of them. Saunderson v. Stearns,
*To appear in 14 Rhode Island Reports.
6 Mass. 37; Hall v. Cushing, 9 Pick. 395; Towne v. Ammidown, 20 id. 535, 540; State v. Nichols, 10 Gil. & J. 27; Lansing v. Lausing, 45 Barb. 182; Sheet's Estate, 52 Penn. St. 257. We think, on the authority of these cases, that Angell cannot be held to have discharged himself from his liability as executor for the $3,000, for the direction of the will is that he shall invest it in his name as executor, which clearly imports that at least until such investment he shall hold it as executor. And see particularly Hall v. Cushing, supra. The only reason for doubt on this point which we see is that the bequest is in the outset directly to Angell; but notwithstanding this, we think it is clear that Angell was intended to take simply as executor, for he is directed to invest the $3,000 in his name as executor and to pay the interest to Fiske for life, and after the decease of Fiske the principal is given, regardless of the bequest to Angell, directly to the remainder-men. The testator merely does by express bequest what the law would have done had he omitted it, namely, gives the money to the executor for the purposes of the will. If this be so the defendants are of course liable on the bond. Elliott v. Sparrell, 114 Mass. 404; Sanford v. Gilman, 44 Conn. 461. We do not think their liability was affected by the "charging off." It was no part of the duty of the Probate Court to allow it. Arnold v. Smith, 14 R. I. . The "charging off" amounted to nothing, even on the face of the account, for it simply showed the money still in the hands of the executor, without showing any right in him to have it except as executor. This was therefore a manifest mistake, and the court afterward rightly corrected it. And see United States v. Parker, 2 McArthur, 444. Indeed the defendant, Angell, has himself admitted the propriety of the correction by paying the $3,000 over to the administrator de bonis non, with the will annexed. Probate Court of Scituate v. Angell. Opinion by Durfee, C. J.
CREDITOR'S BILL-JUDGMENT MUST BE FIRST OBTAINED-RETURN OF EXECUTION.—(1) It is a general rule that a creditor's bill cannot be maintained until judgment has been obtained at law and execution has issued and been unsatisfied, the reasons being that legal claims should be first adjudicated in courts of law, the tribunals in which such claims are properly cognizable, and that the legal remedies should first be exhausted. The bill before us does not set forth that judgment at law has been obtained by the complainant, and that execution has issued and been returned unsatisfied, nor any sufficient reason for the absence of those averments. In Merchants' National Bank v. Paine, 13 R. I. 592, a debtor had absconded, without leaving legal assets which could be attached, so that no judgment at law could be obtained against him. It was held that his creditors were entitled to proceed against his equitable assets to satisfy their legal claims. The doctrines of that case are as applicable to a non-resident debtor, having no legal assets within the State, and on whom service of legal process cannot be made for the purpose of bringing suit and obtaining judgment at law as to an absconding debtor. Scott v. McMillen, 1 Litt. 302, 305; Kipper v. Glancey, 2 Blackf. 356, 357, 358; Peay v. Morrison's Exrs., 10 Grat. 149, 157, 158. (2) Mere insolvency therefore does not dispense with the necessity of obtaining a judgment before a resort to equity. Whether or not it will dispense with the necessity for the issue and return of an execution is a question upon which the cases are conflicting. The affirmative is held by Tabb v. Williams, 4 Jones Eq. 352, 353; Turner v. Adams, 46 Mo. 95, 99; McDowell v. Cochran, 11 Ill. 31, 33; Postlewait v. Howes, 3 Iowa, 366, 383. The negative by Brinkerhoff v. Brown, 4 Johns. Ch. 671, 687; McElwain v. Willis, 9 Wend. 548, 560, 566; Screven v. Bostick, 2
McCord Ch. 410, 416. Parish Miss.) 299, 306. Ginn v. Brown. son, J.
v. Lewis, 1 Freem.
when so applied than when it is applied to a grant of Opinion by Matte-realty. But the deed contains no such language; on the contrary, the settler claims in the preamble of the deed, as his reason for making it, that he has "certain property, real and personal, which he is desirous of having conveyed in trust for the sole benefit and use of himself." Therefore "in a case like the present," to use the language of Judge Bigelow in Hall v. Priest, 6 Gray, 18, 22, "where personal and real estate are given in the same clause and in the same words, and there is nothing to indicate a different intent in relation to the personal from that manifested respecting the real estate, we are of opinion that the words are to be construed in the same manner as applicable to both species of property." Our decision is that it is the duty of the trustee to transfer the personal property to the administrator, to be administered and distributed by him according to law, as the personal estate of his intestate. Taylor v. Lindsay. Opinion by Durfee, C. J.
PLEADING-COMPLAINT FOUNDED ON STATUTE-ALLEGATIONS. When a new right of action is given by statute subject to a condition it is incumbent on the plaintiff suing under the statute to allege the fulfillment of the condition, and to prove it if denied. 1 Chitty Plead. *386: Drowne v. Stimpson, 2 Mass. 441, 444; Williams v. Hingham, etc., Turnpike, 4 Pick. 341, 345; Inhabitants of Bath v. Inhabitants of Freeport, 5 Mass. 325; Brown v. Adams, 1 Stew. 51; Greer v. Bumpass, Mart. & Y. 94; Bayard v. Smith, 17 Wend. 88. "It is a uniform rule of law," said Parsons, C. J., in Drowne v. Stimson, 2 Mass. 441, 444, "that "when a statute gives a remedy under particular circumstances, the party seeking this remedy should in his plaint or information allege all the facts necessary to bring him within the statute." Baker & Slater Mill and Power Co. July 5, 1884. Opinion by Durfee, C. J.
TRUST-CONVEYANCE-ESTATE PERSONAL.-L. conveyed certain property, real and personal, in trust to pay his debts from the income, if sufficient; if otherwise, from the principal, and thereafter to pay the income to himself or order for his benefit or his family's, and if the trustee should think more needed for L.'s comfort, to pay to L. or order such amounts, not to exceed one-half of the principal, as the trustee thought proper. The preamble of the deed stated that L. had "certain property, real and personal, which he is desirous of having conveyed in trust for the sole benefit and use of himself." The deed further provided, "and in case of the decease of L. this trust is to terminate, and the said property remaining in the hands of the trustee to be conveyed as he shall by his last will and testament direct, and in default thereof to his heirs at law." L. died intestate, leaving a widow and a daughter. Held, that according to the former decisions of this court L. took under the trust deed an equitable fee simple in the real estate conveyed by it. See Angell, Petitioner, 13 R. I. 630, and cases cited; Rogers v. Rogers, 10 id. 556; Nightingale v. Nightingale, 13 id. 113; Sprague v. Sprague, id. 701; Burges v. Thompson, id. 712; Pierce v. Pierce, 14 id. 63. It follows that it is the trustee's duty to convey the real estate which he still holds in trust, subject to the widow's right of dower in it, to the daughter, in fee simple, together with the rents which may have accrued from it since the decease of L. We are also of the opinion that the same words which gave to L. the equitable fee in the real estate must be construed to have given him the entire equitable interest in the personal property. This view is well supported by authority. Garth v. Baldwin, 2 Ves. Sr. 616; Tothill v. Pitt, 1 Madd. 488; Earl of Verulam v. Bathurst, 13 Sim. 374; Kinch v. Ward, 2 Sim. & Stu. 409; Simmons v. Simmons, 8 Sim. 22. It is the view which this court has taken sub silentio in several cases. Eaton V. Tillinghast, 4 R. I. 276; Rogers v. Rogers, 10 id. 556; Nightingale v. Nightingale, 13 id. 113. These cases may not be very authoritative as precedents, though they cannot be ignored as precedents even, but they show that this is the natural construction, the construction instinctively given, and it ought not therefore to be put aside without good reaSuch a reason would exist if the trust deed here contained any language from which it could be satisfactorily inferred that the settler intended to have the words of the grant less technically applied to the personal than to the real property; for it is doubtless true that the rule in Shelley's case is applied to grants of personalty rather by way of analogy for the purposes of construction than as a rule stricti juris, and that it therefore yields more readily to an apparent intention
ASSIGNMENT BY ONE PARTNER We think it is well established now that one of two or more co-partners has no authority simply as such to assign the entire partnership effects to a trustee for the payment of the partnership creditors without the consent of his co-partners if they are present or at hand where they can be consulted. Ormsbee v. Davis, 5 R. I. 446; Welles v. March, 30 N. Y. 344; Deming v. Colt, 3 Sandf. 284, 292; Fisher v. Murray, 1 E. D. Smith, 341; Kirby v. Ingersoll, 1 Doug. (Mich.) 477, 490; Hughes v. Ellison, 5 Mo. 463; Bull v. Harris, 18 B. Mon. 195, 199. But on the other hand, if the other partners be not present, or where they can be consulted, we think it established that an assignment of the partnership effects to a trustee for the partnership creditors is valid without their consent, if made by the partner in charge in good faith, to meet a crisis or exigency of the business, and that it is none the less valid for being made in the firm's name under seal so far as the personal effects are concerned. Anderson v. Tompkins, 1 Brock. 456; Harrison v. Sterry, 5 Cranch, 289; McCullough v. Sommerville, 8 Leigh, 415; Robinson v. Crowder, 4 MoCord, 519; Deckard v. Case, 5 Watts, 22; Welles v. March, 30 N. Y. 344; Kemp v. Caruley, 3 Duer, 1; Palmer v. Myers, 29 How. Pr. 8; 1 Am. Lead. Cas. 446-7. We think the case at bar falls under the authority of the cases last named. (2) When an actual delivery cannot be made, a symbolical delivery will be sufficient. In the case at bar the assignment, which was duly delivered and recorded, was on the express trust that the assignee should forthwith take possession of the goods assigned, and under the circumstances we think he did all that was necessary to perfect his title. Whipple v. Thayer, 16 Pick. 25; Mann v. Huston, 1 Gray, 250; Mitchell v. Cunningham, 29 Me. 376, 385; Arnold v. Brown, 24 Pick. 89. Matter of Daniels. Opinion by Durfee, C. J. May, 1884.
VERMONT SUPREME COURT ABSTRACT.*
MORTGAGE FORECLOSURE REDEMPTION - IMPROVEMENTS CHARGEABLE TO MORTGAGOR.-While it is a general rule that a mortgagee in possession without foreclosure cannot improve the mortgagor out of his estate, and that permanent improvements cannot be made at his expense, if he elects to redeem, yet it is not an inflexible rule, but it is suspended in exceptional cases, if justice requires it; thus the land in question was covered with sprouts and bushes, the large timber having been taken off, and in no condi
* Appearing in 56 Vermont Reports.
tion to yield income; the mortgagee was in possession, and supposing that he was the absolute owner, cleared the land, built fences, and erected a small barn-all such as good husbandry required, and done in good faith; the mortgagor stood by in silence, making no objections, asserting no right or wish to redeem until the improvements were substantially completed. A bill having been brought to redeem, held that the rule that he who seeks equity must do equity applies; and that the improvements were chargeable to the mortgagor. A grantor has an equity of redemption under a deed absolute in form, but in reality a mortgage. Morgan v. Walbridge. Opinion by Powers, J.
STATUTE OF LIMITATION FROM STATE.-If a debtor residing out of the State when a cause of action accrues against him, comes into the State temporarily, with no intention of residing here, the creditor not knowing thereof, the statute of limitations is not thereby set in operation. Mazozon v. Foot, 1 Aik. 282; Hill v. Bellows, 15 Vt. 727. But when the "coming" is to dwell and reside permanently, it is not necessary in order to set the statute in operation that the creditor should have knowledge thereof; it is enough if he can acquire such knowledge by the exercise of reasonable diligence. Skinner, C. J,, in Mazozon v. Foot, 1 Aik. 282; Redfield, C. J., in Hall v. Nasmith, 28 Vt. 791; Fowler v. Hunt, 10 Johns. 464; Didier v. Davison, 2 Barb. Ch. 477; S. C., 2 Sandf. Ch. 61; Little v. Blunt, 16 Pick. 359; Whitton v. Wass, 109 Mass. 40; Angell Lim., §§ 206, 207. Davis v. Field. Opinion by Rowell, J.
TRESPASS--DAMAGES-USE OF PROPERTY-PLEADING -AMENDMENT EVIDENCE.-(1) The defendant as constable attached the plaintiff's ox, which was exempt; and after the executions were paid, the ox was returned. Held, that the measure of damages was the use of the ox; that if the defendant was at the expense of keeping the ox, it was the value of the use less such expense; that a failure to raise crops by reason of being deprived of the use of the ox was not the natural and proximate result of the attachment; that the plaintiff could not allow his land to go uncultivated and then ask the jury to speculate as to his loss; and that evidence was inadmissible to show it. (2) A part of the property attached was exempt, and a part not exempt, and the question being whether the exempt was turned out for attachment, held, that evidence that the non-exempt property was turned out by its owner for attachment, was not admissible to prove that which was exempt was also turued out; and that the court properly refused to allow the officer to state whether, in his opinion, the interview between himself and the owner at the time of the attachment was friendly or not. (3) The plaintiff brought an action of trespass merely declaring for the unlawful taking of his ox; he afterward filed an amended declaration averring that it was his only team, and that he had been prevented from planting his crops, etc. The defendant then pleaded, and justified the trespasses charged in the amended declaration. Held, that the amendment was proper, as it simply amplified the cause already declared for; but if not, that the defendant had precluded himself from raising the question on the trial of issues thus tendered. (4) The defendant claimed on trial that he settled for the taking when he returned the ox to the plaintiff. But subsequently to the return, he took a bond of indemnification from the execution creditors. Held that the bond was admissible as evidence to disprove the claim of settlement of the unlawful attachment. Luce v. Hoisington. Opinion by Ross, J.
HIGHWAY OBSTRUCTION EXTRA VIAM.- It is a maxim that private mischief shall be endured rather than a public inconvenience. That regard be had to
the public welfare, is the highest law. Hence if a public highway be out of repair and impassable, a traveller may lawfully go over the adjoining land, since it is for the public good that there should be at all times free passage along the highways for all the subjects of the State. In such case, an interference with private property is obviously dictated and justified summa necessitate, by the immediate urgency of the occasion, and a due regard to the public safety or convenience. Broom Leg. Max. 2; Lord Mansfield, C. J., in Taylor v. Whitehead, Dougl. 749; Lord Ellenborough, C. J., in Bullard v. Harrison, 4 M. & S. 393. But such obstruction must be from sudden and temporary causes, and of such a character as to render the road founderous and impracticable. The leading case in this country on the subject is Campbell v. Race, 7 Cush. 408, in which the highway was obstructed and rendered impassable by snowdrifts. But such a right, having its origin in necessity, must be limited by the necessity that creates it, and does not exist from convenience merely, nor when by the exercise of due care, after notice of obstructions, other ways may be used and travelling extra viam thereby avoided. It is to be confined to cases of necessity arising from sudden and recent causes that have occasioned temporary and impassable obstructions in the way. Morey v. Fitzgerald. Opinion by Rowell, J.
HABEAS CORPUS-INSOLVENT LAW-R. L., §§ 1794, 1839.-A debtor imprisoned on a warrant issued by the Court of Insolvency is entitled to be discharged on habeas corpus, when it appeared by the return that the debtor was committed to jail because he refused to submit to an examination on oath upon matters relating to his trades, dealings, the disposal of his estate, etc., and to surrender his books to a messenger, when it did not appear, that an assignee or a messenger had been legally appointed; or that the relator had been declared an insolvent debtor; and his rights are to be determined by the return. In re Brainerd. Opinion by Rowell, J.
ANIMALS-DAMAGES BY TRESPASSING-FENCE-NEGLIGENCE. The defendant's bull escaped from his pasture into the plaintiff's adjoining pasture, and there injured his horse. The plaintiff's fence was insufficient and out of repair; and the bull escaped through a gap in that portion which the plaintiff was bound to maintain. It was not proved that the defendant knew that the animal was vicious. Held, that the bull was in the plaintiff's field through his own neglect to build a legal division fence, and that the defendant was not liable; and that the statute, R. L., § 4003, against allowing a bull to run at large out of the inclosure,' etc., has no application, as the bull was in the defendant's "inclosure" when in his pasture. The bull, as regards the defendants, had an excuse for being in the plaintiff's pasture. In the language of Parke, B., in Sharrod v. N. W. R. Co., 4 Welsb. H. & G. 584, and adopted by this court in Hurd v. R. & B. R. Co., 25 Vt. 116, "that if the cattle had an excuse for being on the road, as if they escaped through defects of fences which the company should have kept up, the cattle were not wrong-doers, they had a right to be there and their damage is a consequent damage from wrong of the defendants in letting their fences be incomplete, or out of repair, and may accordingly be recovered by action." On this doctrine the defendant's bull was not a wrong-doer, or trespasser, in the plaintiff's pasture, because there through the fault or neglect of the plaintiff. The plaintiff could not maintain trespass for his entry into his pasture on that occasion. It was expressly decided in Page v. Olcott, 13 N. H. 399, that one adjoining land owner could not maintain trespass quare clausum fregit against another for damages done by the latter's sheep upon the close of
the former, which had escaped from the latter's inclosure through a defect in that portion of the division fence which the former was bound to maintain. The gist of the action of trespass upon the freehold is the wrongful entry. What is done after such entry is but an aggravation of the wrong in making the entry. As the entry of the bull into the plaintiff's pasture was through his negligence in discharging a duty he owed the defendants, the defendants are not responsible for any injuries which he occasioned while there, although such injuries arose from a vicious act, unless the defendant knew of such vicious propensity. In the well-considered case of Decker v. Gammon, 44 Me. 322, cited by the plaintiff's counsel, the court say: "If domestic animals, such as oxen and horses, injure any one, in person or property, if they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury, unless he knew they were accustomed to do mischief; and in suits for such injuries, such knowledge must be alleged and proved." The court cite extracts from May v. Burdett, 58 E. C. L. 101; 1 Hale P. C. 430; Buxendin v. Sharp, 2 Salk. 662; Mason v. Keeling, 12 Mod. Rep. 332; Vrooman v. Lawyer, 13 Johns. 339, supporting the proposition. The court also say: "The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so before." We think these extracts are a correct statement of the law upon this subject. The other cases cited by the plaintiff's counsel, Dunckle v. Kocker, 11 Barb. 387, Chunot v. Larson, 43 Wis. 536; S. C. 28 Am. Rep. 567, note; Dolph v. Ferris, 7 Watts & Serg. 367; Ellis v. Iron Co., 11 Eng. Rep. 214, to show that the owner of a domestic animal is liable for injuries arising from its vicious act, although he did not know it had such vicious propensity, are cases in which it is shown, or found by the jury, that the animal was unlawfully and wrongfully in the place where the act was committed. Scott v. Grover. Opinion by Ross, J.
DEED-WARRANTY-CORRECTING MISTAKE.-A warranty deed that omits to mention by name a certain incumbrance, although the amount appears in the aggregate of all the incumbrances, subject to which the grantee takes the land, and proof can be had of the grantee's knowledge of its existence before the conveyance, will not require the grantor to make the title good to that extent, but the deed may be corrected by leave of the court. Zack v. Krall. Opinion by Seevers, J.
[Decided June 9, 1884.]
DAMAGES-SLANDER-VINDICTIVE-PERSONAL REPRESENTATIVE.-Vindictive damages are awarded as a punishment against a wrong-doer, and not as compensation for the injured person. In an action against the personal representative of a decedent for damages on account of slanderous words spoken by the deceased, exemplary or punitory damages may not be awarded against the personal representative. Such damages are awarded as a punishment of the man who has wickedly or wantonly violated the rights of another, rather than for the compensation of the one who suffers from his wrongful act. It is true they are awarded to the one who has been made to suffer, but not as a matter of right; for while he is entitled under the law to such sum as will fully compensate him for the injury he has sustained, the question whether punitory damages shall be assessed and the amount of the assessment is left to the discretion of the jury. Plaintiff had a right of action, on account of the slan
derous words spoken by defendant, for such sum as
EXECUTOR AND ADMINISTRATOR-SALE OF PERSONAL PROPERTY-DISTRIBUTION OF PROCEEDS-LEASE
Where executors sell the personal property of an estate to pay the debts, the proceeds become a fund to be distributed under the order of the court, and if it is insufficient to pay them all fully, it should be divided pro rata. (2) The purchase money from the sale of the personal property of an estate belongs to the executors, regardless of any claim which the purchaser may have against the estate; but if in an action by the purchaser against the estate to enforce his claim, the executors set up the purchase-money due as a counterclaim against the purchaser, a court is justified in treating the purchase-money claim precisely as the executors pleaded it. (3) Where a lease was made, rent fee, there being other consideration for giving it, and with the provision that it should not be assigned, an assignment of it did not work a forfeiture, in the absence of a declaration of forfeiture, and so long as the lease subsisted, the right to collect rent was gov erned by it. Shattuck v. Lovejoy, 8 Gray, 204. Eldredge. Opinion by Adams, J. [Decided June 10, 1884.]
MECHANICS' LIEN-SUB-CONTRACTOR'S STIPULATION INCONSISTENT WITH.-A mechanic's lien, as against parties chargeable with notice of it, dates from the time the labor or material was provided. The inten tion of the Legislature, in enacting the thirty-days limitation, was that there should be a reasonable time to allow the sub-contractor to serve notice. It was said in Winter v. Hudson, 54 Iowa, 339: "While it is true that the owner may make such contract as thereby, yet if the contract recognizes that there may he may see proper, and the sub-contractor is bound be sub-contractors whom the owner may be required to pay, and such owner has knowledge that certain persons as sub-contractors have furnished materials which were used in the construction of the building, he cannot pay the contractor with impunity during the thirty-day period." The case at bar differs from that in this, that it does not appear that the contract recognized that there might be sub-contractors whom the owner might be required to pay. But it was not held in that case that such fact was of controlling importance. The fact was in the case, and there was no reason for determining what the rule would be in the absence of it. Where the contract expressly recog nizes the fact that there may be sub-contractors, the owner becomes apprised at once that the contractor has some expectation of procuring labor or materials, or both upon credit. The recognition is a circumstance to be considered with others, in a proper case, in determining whether the owner was not put upon inquiry. But where, as in this case, the owner admits that he had knowledge that the material was being furnished by the person claiming as a sub-contractor,
he must be deemed to have had knowledge of the lien (Gilchrist v. Anderson, 59 Iowa, 276; S. C., 13 N. W. Rep. 290), and we cannot think that we should be justified in holding that he could properly pay before the end of the thirty days, even though his contract called for payment before that time, and made no reference to sub-contractors. Notice served after the thirty days, with statements filed, gives a lien upon the balance, if any, due the contractor. We cannot hold that notice served before that time has no greater effect. Though a mere stipulation on the part of a contractor not to claim a mechanic's lien would not preclude a sub-contractor from making such a claim, nevertheless such sub-contractor is precluded when the contractor, at the outset, stipulates for a mode of payment inconsistent with the mechanic's lien. Jones & Magee Lumber Co. v. Murphy. Opinion by Adams. J. [Decided June 12, 1884.]
AGENCY-CONTRACT-MEMBERS OF CLUB.-As to the contracts of an unincorporated organization, the in dividual members are liable either because they held themselves out as agents of a principal that had no existence, or because they are themselves principals, since there are none other in existence. It is insisted that there is no known legal principle or rule under which the defendants can be made liable. It is said they are not parties. This is true: that is to say, these defendants could not bind any other members of the organization as a partner in a joint enterprise on a contract as to which he had no knowledge and did not assent to. But we think "those who engaged in the enterprise (that is, became members of the organization) are liable for the debts they contracted, and all are included in such liability who assented to the undertaking, or subsequently ratified it." It was so held in Ash v. Guie, 97 Penn. St. 493; Fredendall v. Taylor, 26 Wis. 286; and is supported to some extent by what was said by this court in Keller v. Tracy, 11 Iowa, 530; and Drake v. Board of Trustees, id. 54. Lewis v. Tilton. Opinion by Seevers, J. [Decided June 14, 1884.]
AGENCY-PURCHASE PRICE-IMPLIED AUTHORITYRATIFICATION-RECOURSE TO AGENT-DEMAND.- An authority to make a contract for the sale of lands will authorize the agent to receive so much of the purchase-money as is to be paid in hand on the sale as an incident to the power to sell. Story Ag., § 58; Johnson v. McGruder, 15 Mo. 365; Yerby v. Grigsby, 9 Leigh (Va.), 387; Higgins v. Moore, 6 Bosw. 344; Goodale v. Wheeler, 11 N. H. 424; Peck v. Harriot, 6 Serg. & R. 149; Hoskins v. Johnson, 5 Sneed, 469. A landowner having suffered others to hold, occupy, and cultivate land under deeds prima facie good, and for an adequate consideration actually paid by them, cannot after three years impeach the sale on the ground of his attorney's defrauding him in the transaction. Hayes v. Steele, 32 Iowa, 44; Cooper v. Schwartz, 40 Wis. 57; Hawkins v. Lange, 22 Minn. 557; Cairnes v. Bleecker, 12 Johns. 300: Benedict v. Smith, 10 Paige, 127. As against the attorney, plaintiff asks for no specific relief, and we are not certain that as against him he claims relief of any kind. We have seen that by ratification the payment to Palmer became a valid payment, and he received the money as the plaintiff's duly-authorized agent. The rule is that where money has been properly received by an agent for his principal he is not liable in an action until a demand has been made by his principal. Bedell v. Janney, 9 Ill. 193; Cockrill v. Kirkpatrick, 9 Mo. 697; Armstrong v. Smith, 3 Black f. 251; Waring v. Richardson, 11 Ired. Law, 77. Alexander v. Jones. Opinion by Ad
Decided June 13, 1884.]
RECENT ENGLISH DECISIONS.
WILL-EXECUTION ACKNOWLEDGMENT OF SIGNATURE-FORGETFULNESS OF WITNESS.-When a will is ex facie duly executed, and there is no suggestion of fraud, probate ought not to be refused merely because the persons whose names appear as attesting witnesses cannot, when examined, recollect either having seen the testator sign the document, or that his signature was there before they signed, and did not know the nature of the document which they were signing. Ct. of App., Feb. 27, 1884. Wright v. Sanderson. Opin ions by Selbourn, L. C., Colton and Fry, L. JJ. [See 95 N. Y. 329; 83 id. 582; 52 id. 517.-ED.] (50 L. T. Rep. [N. S.] 769.)
INJUNCTION-RAILROAD-VIOLATION OF STATUTEREMOVAL OF BUILDING.—In an action brought to obtain a mandatory injunction to compel the defendants to pull down a goods station and cattle sheds which they had erected 140 yards from Bala station, in the face of sub-section 6 of section 6 of an act which provided, "that at that station there should be no goods or cattle station, etc.," the plaintiff had not objected to the buildings till they were nearly completed, owing to his being abroad at the time, and ignorant of their erection until his return. The defendants contended that the buildings in question had not been erected "at" the station, as they were 140 yards off; that if they had been, it was for the public convenience they should be there, and that the plaintiff was precluded by his acquiescence from now obtaining a mandatory injunction to remove. Held, that by sub-section 6 the defendants had made a statutory contract not to do what the court was of opinion they had done, so that the question of public convenience did not apply, and that the acquiescence of the plaintiff was not such as would preclude him from obtaining the injunction, but that the court would grant one, compelling the defendant to remove the buildings as prayed. High Ct. of Justice, Ch. Div., May 6, 1884. Price v. Bala, etc., R. Co. Opinion by Chitty, J. [See 5 Allen, 221; 1 Gray, 340, 367.-ED.] (50 L. T. Rep. [N. S.] 787.
WILL-EXECUTION-ALIEN.-A will made according to the forms of English law by an alien, who though her domicile of origin was English was domiciled abroad at the time of making her will and of her death, is not entitled to probate in this country. 8 P. Div. 101, affirmed. Ct. of App., Feb. 13, 1884. Bloxam v. Favre. Opinions by Lord Selborne, L. C, Lord Coleridge, C. J., and Cotton, L. J. (50 L. T.. Rep. [N. 8.1 766.
WILL- ANNUITY DIRECTION TO APPROPRIATE FUND-DEFICIENCY IN INCOME-RESORT TO CAPITAL OF ESTATE.-A testator after giving various pecuniary legacies, bequeathed to various persons annuities of 11. a week, and he directed sufficient funds to be appropriated in the name of his trustee out of his personal estate to answer by means of the income the payment of the annuities, and he directed that on the dropping of the annuities the appropriated funds should follow the distribution of his residuary personal estate. The income of the personal estate, after payment of the pecuniary legacies, was insufficient to pay the annuities. Held, that the annuities were payable, so far as necessary, out of the capital of the estate. Ch. Div., May 8, 1884. Matter of Taylor. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 717.)