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mined.—Where the description of the land and the purpose for which it is sought to be taken are stated in the petition, as they must be in every case, whether the land is reasonably necessary for the purpose stated depends mainly upon the facts thus stated in the petition. But the court in passing upon this question, as it must before submitting the question of damage or compensation to the jury, should take into consideration the section of the country and the particular locality in which the improvement is to be constructed-whether in an obscure country village, or in a great commercial centre—and acting upon its own knowledge of the commerce and business necessities of the country, must, upon the facts stated in the petition, determine this question for itself. The jury.impanelled can find no fact except what is just compensation to the owner : Smith v. C. & W. I. Railroad Co., 105 IN.
Every company seeking to condemn land for a public improvement must, in a modified degree, be permitted to judge for itself as to the amount that is necessary for such purpose. This right is subject to all constitutional and statutory restrictions, and to the further limitation that the courts are clothed with ample power to prevent any abuse of the same : Id.
ERRORS AND APPEALS. See Admiralty. Right of Administrator.-An administrator may maintain an appeal from an order of payment on the ground that it lays down a rule of apportionment which works injustice as between the creditors of the estate : In re Estate of McCune, 76 Mo.
Waiver of Appeal— Consideration.—By an agreement, free from all shadow of fraud, mistake or surprise, signed by counsel representing the executors, and others interested in the distribution of a testator's estate, and filed in the case, the right of appeal from a decree passed some six months previously, construing certain clauses of the testator's will, was waived, and consent was given to the passage of a decree for the final distribution of the testator's estate. Accordingly an order was passed for the immediate distribution of the residue. The consideration moving to K., one of the parties to the agreement, to waive his right of appeal, was the immediate possession of his share of the residue of the estate without further litigation or delay. Held, that the agreement to waive his right of appeal was binding, being supported by a sufficient legal consideration, and K. was concluded thereby from maintaining an appeal : Mackey v. Daniel, 59 Md.
ESTOPPEL. See Former Recovery. Assignment of Stock by blank Power of Attorney-Bona fide Purchaser. – Where certificates of stock in a private corporation are assigned in blank, with a power of attorney authorizing the transfer of the stock on the books of the corporation, with no limitation as to their use by the assignee, the assignee or holder will be authorized, as to persons dealing with him without notice of any defect of power in him, to make any legitimate use of them a rightful owner might, and a sale or pledge of such certificates by him, in the usual course of business, to a party taking in good faith for value, will be valid and binding on the original owner or assignor, though the legal title may not have passed, for want of a transfer on the books of the corporation : Otis v. Gardner, 105 Ill.
If the owner of property or choses in action voluntarily clothes another with the indicia of ownership, by which the latter is enabled to sell or pledge the same, for his own benefit, to an innocent party for value, the former can have no relief against such act to the prejudice of the pledgee or vendee. Where one of two or more persons must suffer loss, it must fall upon him whose conduct made it possible for loss to occur: Id. EXECUTORS AND ADMINISTRATORS. See Errors and Appeals.
FIXTURES. Tests as to what constitutes— Evidence of Custom.—Whether a chattel becomes a fixture or not does not depend so much upon the character of the fastening by which it is held down (whether slight or otherwise), as upon the nature of the article, and its use as connected with the use of the freehold. As between the mortgagor and mortgagee, the true criterion consists in the united application of several tests : 1st, Real or constructive annexation of the article in question to the realty. 2d, Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. 3d. The intention of the party making the annexation, to make the article a permanent accession to the freehold, this intention being in ferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been inade : Thomas v. Duvis, 76 Mo.
As between landlord and tenant, evidence of custom with respect to chattels annexed to the realty, by which they are treated as personalty, is admissible, but not so with respect to articles annexed by a mortgagor or grautor before the execution of his conveyance : Id.
FORMER RECOVERY. Waiver of Defences not pleasled- Not applicable to Defence constituting Counter-claim-Equitable Title.— The general rule is that a defendant is bound to set up every defence, legal or equitable, or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defence are sufficient to constitute a counterclaim, there is an exception to such general rule : Witte v. Lockwood, 38 or 39 Ohio St.
A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defence or a counter-claim, or he may maintain an action thereon : Id.
Assumpsit and Trover— Recovery in One a Bar to Other.-The law is adverse to multiplying suits, and if a party has a choice between two actions upon the same demand, and he selects one, which is decided by a competent tribunal, either for or against him, as a general rule he will not be permitted to resort to the other : Walsh v. Chesapeake and Ohio Canni Co., 59 Md.
The plaintiffs recovered judgment in an action of assumpsit, and afterwards sued the same defendant in an action of trover, to recover damages for the conversion of the same property which had formed the subject of the action of assumpsit. On a plea of former recovery it was held, that in the judgment in the first action the cause of action was merged, and could only have been revived by apt proceedings terminating in striking the judgment from the record in the court of original jurisdiction, or by its reversal on appeal : Id.
INTOXICATING LIQUOR. Suit by Wife for Sale to Husband-In lependent Sales by two Persons - Joint Liability.—In an action by a wife against two persons for injury to her means of support resulting from the habitual intoxication of her husband caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appeared that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that peither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit : Held, that the defendants were jointly liable: Rantz v. Barnes, 38 or 39 Ohio St.
LIBEL. False Statement as to Conviction of Crime. — The publication in a newspaper of a false statement that a person was convicted and sentenced to prison for libel, is actionable, without proof of special damage : Boogher v. Knapp, 76 Mo.
MALICIOUS PROSECUTION. Civil Suit— Injunction Corporation- Measure of Damages— Mining Company.—The N. C. Co., a corporation, with malice and without probable cause, sued U. and others, in a civil action and by an order of injunction made on its ex parte application, prevented U. and others from entering upon and enjoying their property, and also from prosecuting a profitable business. After a year had passed, the N. C. Co. dismissed its action. U. and others thereupon sued the company, claiming damages for said malicious prosecution : lleld, 1. They can maintain the action. 2. The measure of the damages is the value of the right of U. and others to possess their property and prosecute their business during said period of ouster and suspension : i.e., the value of the use of the property, in the business, during that time: Newark Coal Co. v. Upson, 38 or 39 Ohio St.
MUNICIPAL CORPORATIONS. See Ordinance. Counties— Property of subject to Legislative control.—The property of a county being held for the public, it is under the uncontrolled power of the General Assembly, which is not restricted or limited in its absolute control over the same. A county can neither hold nor dispose of property except by constitutional or legislative authority, and the legislature has the power to sell or dispose of it without the consent of the county aathorities : Harris v. Board of Supervisors of Whiteside Co., 105 III. Bonds of Municipal Corporations-Irregularity in Election by which they were authorized— United States Court when not bound by Decisions of State Court.-Where a municipal corporation in pursuance of legis lative authority voted a donation to a railroad company, and issued bonds to pay the same which recited, on their face, that an election had been held in accordance with the authorizing statutes : Held, 1. That a defect in the method of holding the election by which the donation was voted in no way impairs the validity of the bonds in the hands of a bona fide holder. 2. That a decision of the state Supreme Court declaring that in consequence of such irregularity the bonds are void in the bands of bona fide holders is not binding on the U. S. Supreme Court. The proposition is one which falls among the general principles and doctrines of commercial jurisprudence, as to which it is the duty of the latter court to form an independent judgment, and in respect to which it is under no obligation to follow implicitly the conclusions of any other court bowever learned or able it may be: Town of Pana v. Bowler, S. C. U. S., Oct. Term 1882.
NATIONAL BANK. See Bank. Power to receive Special Deposits-Liability for— Evidence. The power to receive special deposits is conferred by the National Banking Act, upon banks organized under that act: First National Bank of Mansfield v. Zent, 38 or 39 Ohio St.
Where a national bank has been accustomed to receive United States bonds as special deposits, gratuitously, it is liable for any loss thereof occurring through the want of that degree of care which good business men would exercise in keeping property of such value : ld.
A demand of such bonds, and a refusal by the bank to deliver the same, with no other explanation of such refusal than the statement that the bank has no such bonds in its possession, furnish sufficient proof of loss by such negligence as will render the bank liable therefor: Id.
Construction of National Banking Acts and Section 3166 Revised Statutes— Claims of United States when not Preferred.—The law of 1797, re-enacted in the Revised Statutes, giving priority to the demands of the United States against insolvents cannot be applied to demands against National Banks which have failed. The provisions of that law and of the national banking law being, as applied to demands against national banks, inconsistent and repugnant, the former must yield to the latter, and is, to the extent of the repugnancy, superseded by it: National Bank v. The United States, S. C. U. S., Oct. Term 1882.
At the time of its suspension a national bank had on deposit certain postal funds” and “money-order funds” deposited by a deputy-postmaster. The Treasury Department, over and above a sum sufficient to secure the circulation of the bank's notes, had $30,000 belonging to it, but the liabilities of the bank exceeded its assets. Held, that the claiin of the United States for moneys so deposited by the deputy-postmaster was not a preferred debt nor could it be set off against the surplus moneys remaining in the treasury of the proceeds of bonds deposited as security for the circulating the notes of the bank : Id.
NEGLIGENCE Railroad-Rate of Speed— Contributory Negligence-Duty of Court. - Aside from statutory or municipal regulation, no rate of speed at which a railroad train may be run is negligence per se: Powell v. The Missouri Pacific Railway Co., 76 Mo.
In an action grounded upon allegations of negligence, if the undisputed facts show that notwithstanding the defendant's negligence, the plaintiff would not have sustained the injuries complained of but for his own negligence directly tending to produce them, it is the duty of the court to direct the jury to find for defendant: Id.
Railroad— Escape of Fire-Presumption.—There is no legal presumption that a railroad company, while in the exercise of its lawful right to run its locomotives and trains over its road and to use fire in so doing, will not permit fire to escape from them : Palmer v. Missouri Pacific Railway Co., 76 Mo.
The fact that a railroad company uses good machinery and the most approved appliances to prevent the escape of fire, and has careful and competent men in charge thereof, will not, in case fire does escape, of itself rebut the prima facie inference of negliger.ce or exempt the company from liability for damages caused thereby : R.
Railroad companies must use reasonable precautions to prevent fire from being carried from their locomotives by such winds as are usual and ordinary at the season and the place, and are only relieved from making provision against extraordinary and unusual winds: Id.
NOTICE. See Bank.
ORDINANCE. Rules of Construction-Pay of Officers. The charter and ordinances of
a city stand in the same relation to each other as the constitution and statutes of a state, and the rules applicable in deciding questions of conflict between the latter may be resorted to to determine similar questions between the former : Quinette v. City of St. Louis, 76 Mo.
Where a city charter provided that judges of election should receive no pay, and repealed all existing ordinances inconsistent with its provisions: Held, that an ordinance then in force providing for the pay of judges and clerks of election was repealed only so far as it related to the judges, and the clerks were entitled to pay at the rate fixed by the ordinance: Id.
PARDON. Fraud in Procuring-Effect of, on Habeas Corpus after re-arrest An unconditional pardon by the governor, delivered to and accepted by one convicted of felony, cannot be treated as a nullity, in a proceeding on habeas corpus prosecuted by such person against one who re-arrested him basing his right to do so on the ground that the pardon was granted by reason of acts of such convict affecting his health, done with the fraudulent purpose of obtaining such pardon, and by reason of fraudulent representations with respect to his health, made by such convict with like fraudulent purpose : Knapp v. Thomas, 38 or 39 Ohio St.
PARTNERSHIP. Employment for Share of Profits.—A contract was made between E. and the Mayor and City Council of Baltimore, for the performance by E. of certain work for said corporation. The contract provided for the