Gambar halaman

objection that a way of necessity must mean some- The following cases were quoted in the course of the thing more than what I have stated, because where the arguments and the judgment: In the Goods of Hind, grant is of the inclosed piece, the grantee is entitled to 16 Jur. 1161; In the Goods of Christian, 2 Rob. 110; use the land for all purposes, and should therefore be Baker v. Dening, 8 Ad. & E. 94; Hindmarch v. Chorlton, entitled to a right of way commensurate with his right 4 L. T. Rep. (N. S.) 125; 1 S. & T. 433; 28 L. J. 132, P. of enjoyment. But there, again, the grantee has not & M.; In the Goods of Martin, 1 Rob. 712. taken from the grantor any express grant of a right of

The President (Sir James Hannen) delivered the way, and all he can be entitled to ask is a right to en

following judgment: Two interlineations were introable him to enjoy the property granted to him in the

duced into the will after execution and attestation, condition it was when granted to him. It does not appear to me that the grant of the property gives any against these interlineations, and the witnesses sub

but the testatrix signed with her initials in the margin greater right. But even if it did, the principle appli

scribed their initials in attestation of this signature of cable to the grantee is not quite the same as the prin

the testatrix. The Wills Act, section 21, enacts that ciple applicable to the grautor, and it might be that

no interlineation or other alteration made in any will the grantee obtains a larger way of necessity — though

after the execution thereof shall be valid unless such I do not think he does – than the grantor does under the implied re-grant. I am afraid that I am laying quired in the execution of the will; but the will with

alteration shall be executed in like manner as is redown the law for the first time-- that I am for the

such alterations shall be deemed to be duly executed first time declaring the law; but it is a matter of ne

if the siguature of the testator and the subscription of cessity from which I cannot escape. The demurrer

the witnesses be made in the margin. The only quesmust therefore be overruled with costs.

tion then is, whether the signature and subscription

only is sufficient. A mark is sufficient, though the tesINTERLINEATIONS IN WILL.

tator can write. Baker v. Dening. Initials, if in

tended to represent the name, must be equally good. ENGLISH HIGH COURT OF JUSTICE, PROBATE, DI

The language of the lord chancellor in Hindmarch v. VORCE AND ADMIRALTY DIVISION, FEB, 10, 1880.

Chorlton, seems equally applicable to the testator's sig

nature as to the witnesses' subscription: “I will lay IN THE GOODS OF BLEWITT.

down this as my notion of the law, that to make a valid

subscription of a witness, there must either be the name Where two interlineations were introduced into a will after or some mark which is intended to represent the

execution and attestation, but the testatrix duly ini- name.” And Lord Chelmsford says: “The subscriptialled the same in the margin opposite them, and the tion must mean such a signature as is descriptive of witnesses also subscribed their initials in attestation of

the witness either by a mark or by initials or by writsuch signature (by initialling) of the testatrix, held, that the interlineations were duly executed, and were enti

ing the name in full." In Christian's case the initials tled to probate as part of the will.

of the witnesses were held sufficient, although if

merely placed to attest the alteration they will not ARAH BLEWITT, late of Chelsham road, Clapham, serve as an attestation to the will itself. In the Goods

in the county of Surrey, widow, died on the 27th of Martin. I am therefore of opinion that the interDec. 1879, having duly made her last will and testa- lineations against which the initials of the testatrix ment on the previous day (26th Dec., 1879), in the and the witnesses are placed should be admitted to words and figures following:

proof. "I, Sarah Blewitt, of Chelsham road, Clapham, in Bayford. - As part of the instrument? the county of Surrey, widow, do hereby revoke all The President. - As part of the instrument. wills and other testamentary documents heretofore made by me, and do declare this to be my last will and testament. “I give and bequeath unto Amelia Cooke NEW YORK COURT OF APPEALS ABSTRACT. the sum of 501. and all my wearing apparel.' I give, devise and bequeath all the residue of' my estate,

ASSIGNMENT FOR CREDITORS --GOVERNS ACTION OF both real and personal, etc., unto John James Grocott,

ASSIGNEE — PREFERENCES— TAXES. – L., in 1876, gave of, etc., and Thomas Henry Edward Cooke, of, etc.,

his bond and a mortgage on certain property to U. to their' heirs, executors and administrators respectively,

secure a certain debt due U. The mortgage contained upon trust, etc. And I appoint the said John James

a provision authorizing foreclosure in case the taxes on Grocott and the said Thomas Henry Edward Cooke'

the mortgaged property should not be paid. The taxes my sole executor. In witness whereof, etc."

for 1877, 1878 and 1879 not being paid, U. commenced The will was duly executed by the testatrix in ac

foreclosure procedings and had a receiver appointed cordance with the provisions of the statute, the attest

pendente lite, and through him secured possession of ing witnesses being a Mr. Nickinson, the solicitor who

the said property. In 1879 L. made an assignment of prepared it, and a Mr. Rigby Allport.

his property for the benefit of creditors to D. in trust The deceased had scarcely executed the will, and the

to pay certain preferred debts named, but the assignsecond subscribing witness was in the very act of

ment contained no provision giving any preference to attesting her signature, when she expressed a desire to

taxes or directing their payment at all, except as appoint Mr. Cooke co-executor and co-trustee with Mr.

embraced in the general unpreferred debts of the Grocott, and to give to Miss Cooke a legacy of 501. and

assignor. U., upon a petition showing that the mortall her wearing apparel. As there was some danger of

gaged property was an insufficient security for his the deceased expiring before another will could be

debt and the other facts, asked for an order that the executed, Mr. Nickinson thought it best to carry out

assignee should pay and discharge the taxes in arrears. her intentions by interlining them in the will, and

Held, that such order should be refused. The assiguee after the interlineations (which are marked above by

derives all his power from the assignment, which is inverted commas) had been made, the testatrix placed

both the guide and measure of his duty. Beyond that her initials opposite them, and the witnesses subscribed

or outside of its terms he is powerless and without their initials underneath hers in attestation of ber

authority. The control of the court over his action is signature.

limited in the same way and can only be exercised to Bayford and Stevens moved the court to decree pro- compel his performance of the stipulated and defined bate of the will with the interlineations to the execu- trust and protect the rights which flow from it. He tors. They amounted to a re-execution of the will, distributes the proceeds of the estate placed in his


care according to the dictation and under the sole the courts below that a case was made out for a comguidance of the assignment, and the statutory provis- mitment, nisi, etc., of defendants. In such a case this ious merely regulate and guard the exercise of an court may not, when an order of arrest or commitment authority derived from the will of the assignor. The has been denied, review the order. And the fact that courts therefore cannot direct the assignee to pay a the opinions below do not so state will not alter the debt of the assignor or give it preference in violation rule. This court may not look into the opinions of the terms of the assignment and the rights of cred- below to find matter differing from that in the order, itors under it. Nicholson v. Leavitt, 6 N. Y. 519. The unless the language of the order is ambiguous and case is not like that of a distribution of a bankrupt's needs aid for an understanding upon which it went. or of a decedent's estate. Even if the State has a Ferher v. Gould, 22 Alb. L. J. 55. Appeal dismissed. right to claim preference in the payment of taxes, an In re Nebenzahl et al. Opinion by the court. individual cannot interfere in its behalf and claim it. [Decided June 15, 1880.] Order affirmed. Matter of Assignment of Lewis. Opinion by Finch, J.

SUPERIOR COURT OF BUFFALO. [Decided June 15, 1880.]


ATTORNEY'S LIEN — SETTLEMENT. -- If an attorney TION - WHAT MUST BE SHOWN - FAILURE OF PROSECUTION. -- In an action by T. against K. and others for

has omitted to protect himself by a notice forbidding malicious prosecution, it appeared that the prosecution

a settlement without him, and the parties compromise complained of was set on foot by the defendants and

the action before judgment, of which he has notice, he rested upon an affidavit drawn by one of the defend

then proceeds in the suit for his costs, at the peril of ants and verified by K., the other, wherein a larceny establishing conclusively that the adverse party had of deeds was charged to have been committed by T.

the design, when making the settlement, of defeating from X., but the facts and the circumstances of the

his demand for the costs. If he fail in satisfying the

court of this, his proceedings, subsequent to notice, case were set forth and showed that T. having per

will be set aside. MoDowell v. Second Ave. R. Co., 4 suaded K. to let him have possession of deeds from him to her, of real estate (belonging to her, but the

Bosw. 670; Sullivan v. O'Keefe, 53 How. 426; Crotty title to which was held by him in trust), for the pur

v. MacKenzie, 52 id. 54. He must make out a clear pose of examination and correction, refused to return

case of collusion to justify him in proceeding in the

suit after notice of settlement. And it must be shown them to her but kept them by violence, and afterward conveyed the real estate to another. It also appeared

affirmatively that the settlement was made with the that at the time, the deeds were not recorded. Held,

purpose of depriving the attorney of his claim. Carthat if the statement of surrounding circumstances in

penter v. Sixth Ave. R. Co., 1 Am. L. Reg. (N. S.) 410. the affidavit were true, the action for malicious prose

Iudigence of plaintiff, known to defendant, is not sufficution could not be sustained, even though the district

cient to establish collusion, or to requiro the latter to attorney afterward dismissed the indictment against

take notice of the lien or claim of the attorney. SusT. after K. had been heard, as not sustained by the evi-picious circumstances are insufficient to show collusion. dence. The affiant was responsible for the statements

The attorney may protect himself by giving notice of

his claim. But he does not acquire a vested interest in her affidavit but not for any legal conclusion therefrom of a police magistrate or a district-attorney, or a

in or a lien upon the plaintiff's cause of action, by grand jury. In order to compel a defendant in an

stipulating beforehand for a share of the recovery. action for malicious prosecution to go into a defense, Coughlin v. N. Y. C. R. Co., 71 N. Y. 448. The attorthe plaintiff must show, first, the want of a reasonable

ney has not, even after judgment, a lien, properly and probable cause for the complaint in the proceeding speaking, but only a claim or right to ask for the interagainst plaintiff (Williams v. Taylor, 6 Bing. 183), and

vention of the court for his protection, when, having second, that it was instituted by malice. As to the

obtained judgment for his client, he finds there is a first ground, the plaintiff is bound to give in evidence probability of the client's depriving him of his costs. facts sufficient to satisfy a reasonable mind that his

Mercer v. Graves, L. R., 7 Q. B. 499. The question is, accuser had no ground for the proceeding but a desire

not whether plaintiff has acted with a fraudulent into injure him, and whether he had done so was for the

tent, but whether defendant has acted fraudulently court to determine as matter of law, assuming the evi

with respect to plaintiff's attorney. Where the attordence was true. Stewart v. Sonneborn, 98 U. S. 189;

ney has noticed the cause for trial, after notice of setHalles v. Marks, 7 H. & N. 56; Masten v. Deyo, 2 tlement, a motion to strike it from the calendar is Wend. 424; Besson v. Southard, 10 N. Y. 236; Sutton

proper. (The settlement was made before amendunent v. Johnstone, 1 Term R. 269; Turner v. Ambler, 10 A.

to section 66 of the Code, by Laws of 1879.) Lang v. & E. 252. Judgment reversed and new trial ordered.

Buffalo Seamen's Union. Opinion by Beckwith, J. Thaule v. Krekeler. Opinion by Danforth, J.

BAILMENT --- CONVERSION. – Though a man cannot [Decided June 18, 1880.]

be made a bailee against his will, yet where a customer PRACTICE – APPEAL TO COURT OF APPEALS --ORDER

unintentionally leaves an article in a shop, and the DISCHARGING ARREST - OPINION OF COURT BELOW

shop-keeper takes charge of it, he becomes a bailee of CANNOT CONTROL ORDER. -- In this case defendants

the article. A demand of the property and a refusal

or neglect to re-deliver it is prima facie evidence of a were arrested under the provisions of the Code for fraud in contracting the debt for which suit was

conversion, and it is incumbent on the defendant to brought, and after judgment they were again arrested

justify or excuse the refusal. Osgoodby v. Liemberner. under the act to abolish imprisonment for debt, upon

Opinion by James M. Smith. J. the same grounds. The judge discharged them on the DAMAGES UPON EVICTION OF TENANT. - In an action ground that they were not liable to be arrested twice by a tenant against his landlord to recover damages for the same cause. His decision was affirmed at Gene- for breach of contract in evicting him from the premral Term. The order of discharge stated that it was ises, he is not entitled to recover the value of goods made “upon due consideration of the proofs in the

left thereon. Tho eviction did not deprive him of matter, and the affidavits on which the warrant was them. After demand and refusal, he could maintain granted.” In the order of affirmance at General Term, an action for their conversion, or replevin. But an no ground was stated. Held, that this court could not action sounding in tort cannot be joined with one upon say from the orders that they were not made upon the contract. Stenbeck v. Latta. Opinion by James M. merits, and that the proofs in the case failed to satisfy Smith, J.





- If a

JUDGMENT OF JUSTICE OF PEACE- INSUFFICIENCY OF EVIDENCE. – A judgment rendered by a justice of the peace cannot be upheld by mere intendment; there must be some legitimate evidence tending in some degree to establish every fact essential to the cause of action. Evidence held insufficient to establish employment of real estate broker, and tbat he was the procuring cause of the sale. Chappell v. Truscott. Opinion by Beckwith, J.

JUSTICE'S JUDGMENT judgment rendered by a justice court violates the statute, which provides that “the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars" (3 R. S. 247, $ 117), the whole is vitiated. Kunz v. Echhert. Opinion by James M. Smith, J.

MORTGAGE OF MERCHANDISE - WHEN NOT FRAUDULENT. - Where there was no express agreement or stipulation, verbal or written, that tho mortgagor should remain in possession of the merchandise mortgaged and sell it in the usual course of business, but the mortgagor did continue in possession of the merchandise and sold part of it in the usual course of trade at retail, with the knowledge of the mortgagee, and though there was no proof that any part of the proceeds had been applied on the mortgage, held, that the mortgage was not, as a matter of law, fraudulent as against the creditors of the mortgagor, and a nonsuit of the mortgagee was error. Hastings v. Parke. Opinion by Beckwith, J.

SALES FRAUDULENT AGAINST CREDITORS. -- After trial, but before judgment rendered against him, a man executed and delivered to his wife a bill of sale of furniture in the house occupied by them, but without any actual and continued change of possession of the goods. In replevin by the wife against a constable who levied upon the goods under the judgment aforesaid, held, that the plaintiff was bound to establish affirmatively that the sale was made in good faith and without any intention to defraud creditors. Randall v. Parker, 3 Sandf. 69; Jones v. O'Brien, 36 N. Y. Sup. Ct. 58. Marvin v. Smith. Opinion by Beckwith, J.

USURY - MORTGAGE — PAROL EVIDENCE — ESTOPPEL BY GUARANTY OF MORTGAGE. — A conveyed lands to B, and received in return a bond and mortgage, which he sold and assigned to plaintiff, with a guaranty of their payment, and shortly thereafter B re-conveyed the lands to A. In an action to foreclose the mortgage, hell, (1) that evidence was admissible to show that the deed, bond and mortgage were given without any consideration, and were made for the sole purpose of obtaining a loan of money from the plaintiff at a usurious rate of interest, by the sale of the bond, etc., to him, and that the same was known to him when he purchased and took the assignment of them. Parol evidence is admissible to show that an instrument is void, or that it never had any legal existence or bind. ing force, either by reason of fraud, or for want of due execution and delivery, or for the illegality of the subject-matter; or that it was made for the furtherance of objects forbidden by law; whether it be by statute, or by an express rule of the common law, or by the general policy of the law. (2) That the mortgagee (A) was not estopped by reason of his guaranty from showing these facts. Where the assignee of a mortgage sets up an estoppel against the mortgagee, based on the warranty or assurance of the validity of the security by the mortgagor, the latter may show that the assignee could not have believed or acted upon such assurance or warranty, because he well knew the mortgage was void. Fellows v. Wallace. Opinion by James M. Smith, J.

ATTORNEY HAS NO POWER TO COMPROMISE CLIENT'S CLAIM. - An attorney at law in Pennsylvania has, as such, no authority to compromise his client's claim. Iu Stokely v. Robinson, 10 Cal. 315, it was held that an attorney, by virtue of his professional relation, has no power to compromise his client's case without the client's authority or sanction; and this doctrino is supported by tho cases of Huston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O'Hara's Ex’rs, 2 Harris, 88. In the latter case it was said, per Coulter, J.: “An attorney at law in Pennsylvania has very extensive power in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment and giving a receipt for it." Housenick v. Miller. Opinion by Gordon, J. [Decided March 22, 1880.)

CONTRACT - NON-PERFORMANCE CAUSED BY ACT OF GOD NO BREACH. — C. agreed with J., who owned a hotel, to supply spring water to the hotel through pipes that were laid from a spring that was tho only regular source of supply since the hotel was built. J. leased the hotel, agreeing with the lessee that the hotel should “be supplied with spring water during said term in the manner tho samo is now supplied under that certain agreement” between C. and J. Held, that a failure of the water supply, caused by the drying up of the spring, was not a breach of the contract. Ward v. Vance. Opinion by Trunkey, J. [Decided March 22, 1880.]

ILLEGAL CONSIDERATION -- PROOF OF. - The proof of a mere threat of prosecution for a felony, inducing tho execution of an instrument, is not sufficient to establish the invalidity of the instrument as having been given for an illegal consideration, there being no proof of the felony or of an agreement not to prosecute. Swope v. Jefferson Fire Insurance Co. Opinion by Sterrett, J. [Decided May 3, 1880.]

NEGLIGENCE- RAILROAD ENGINE SPARKS SETTING FIRE - THAT FIRE OCCURS NOT EVIDENCE OF NEGLIGENCE. In an action against a railroad company for fire caused by sparks from its engine, it was claimed that its spark arresters were defective and its engines carelessly managed, but no evidence of that fact or that the company was negligent was given, except that it was shown that tho dry grass and stubble along the company's track were ignited. Held, not sufficient to establish negligence, and a submission of the question to the jury was improper. The company in operating its road had a right to use steam engines; and no person, natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark arresters of tho most approved kind, keep them in good order, and exercise reasonable care and vigilance in running its engines. The bare fact that dry grass and stubble on the line of the road were ignited was not of itself evidence of negligence in either of these particulars. It is impossible so to construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals. The most approved spark arresters necessarily permit the escape of small sparks, and if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, without more, was neither negligence nor evidence from

which a jury would be justified in finding negligence. in People v. Mayor, 4 N. Y. 419: “This is an appropriThe principle involved in this case was recognized and ate mode when lands or goods are taken, because their applied in Jennings v. Railroad Co., recently decided value is uncertain, but not when money is taken, bein the Western District. Upon a state of facts differ- cause its value is already fixed.” Whether or not a ing in no essential particular from those of the present special tax on contiguous property in a city or town case, the jury was instructed to render a verdict for for a local improvement, as a sidewalk frontivg the defendant; and in affirming the judgment, it is said: samue, exceeds the actual benefit to the lots taxed, is ,' To hold that the fact of the fire having taken place not material. It may be supposed to be based ou a was prima facie evidence that the spark arrester was presumed equivalent, and where the corporate authordefective, and therefore that the case ought to be sub- ities determine the frontage to be the proper measure mitted to the jury, would be practically to hold rail- of probable benefits, this cannot be disputed or disroad companies liable for all fires; it is a notorious fact proved. White v. People of Illinois ex rel. City of Bloomthat no spark arrester has yet been invented to preventington. Opinion by Sheldon, J.; Walker, C. J., and all sparks, and a little spark may kindle as large a con- Scholfield, J., dissented. flagration as a large one. It depends on the dryness

NEGLIGENCE -- LANDING OF PASSENGERS - CARRIER or humidity of the atmosphere, whether a spark will

OF PASSENGERS — STEAMBOAT.- Where a steamboat is go out before reachivg the ground, and whether what lavding at a wharf for the purpose of enabling passenit reaches is in a condition to be easily ignited." Read

gers to go ashore, it is the duty of the proper officers of ing & Columbia Railroad Co. v. Latshaw. Opinion by

tho boat to provide means for the safo transit of those Sterrett, J.

who wish to leave the boat - and the fact that a stage [Decided March 15, 1880.]

plank placed for the use of passengers in landing, fell

while a passenger, in the exercise of due care, was walkILLINOIS SUPREME COURT ABSTRACT. ing over it, is prima facie evidence of negligence on the

part of the officers of the boat in the performance of MAY, 1880.*

that duty, and in an action by the passenger to re

cover for an injury caused by the falling of the plauk, ATTORNEY — INVESTING IN CLAIM AGAINST CLIENT.

the burden is upon the defendant to show the falling of It is not to be tolerated that an attorney shall advise or

the plank was not the result of negligence on the part encourago a client in investing in a bad title, and him

of the officers of the boat. This position is sustained self afterward buy up the better title and assert it as in Pittsburg, Cin. & St. L. R. Co. v. Thompson, 56 Ill. against his former client. Such a practice would open 138, and in Railroad Co. v. Pollard, 22 Wall. 342, and in a door to endless wrongs and villanies, and bring great Stokes v. Saltonstall, 13 Pet. 181. In the last named case and just reproach upon the profession. “If an attor

it is held that the upsetting of a stage coach, by which ney employed by the party should designedly conceal

a passenger is injured, is prima facie evidence of negfrom his client a material fact or principle of law, byligence on the part of the driver, and casts upon the which he should gain an interešt not intended by the proprietor the burden of showing the driver was in client, it will be held a positive fraud, and he will be

every respect qualified, and acted with reasonable skill treated as a mere trustee for the benefit of his client

and the utmost caution, Although it may appear that and his representatives; and in a case of this sort it the end of the boat was moved around by the wind, willy not be permitted to the attorney to set up his and that this caused the falling of the stage plank, yet ignorance of law or his negligence as a defense or an

it not being shown that the boat was fastened to the excuse. It has been justly remarked that it would be

wharf in any way, or that it could not have been fasttoo dangerous to the interests of mankind to allow

ened so as to have prevented it from being moved by those who are bound to advise, and who ought to be

the wind, there would not appear to have been due able to give good and sound advice, to take advantage

care on the part of the officers of the boat to discharge of their own professional ignorance, to the prejudice

it from liability. Eagle Packet Co. v. Defries. Opinof others. Attorneys must, from the nature of the

ion by Dickey, J. relation, be bound to give all the information which they ought to give, and not be permitted to plead ignorance of what they ought to know." Gibbons v.

IOWA SUPREME COURT ABSTRACT. Hoag. Opinion by Scholfield, J.

JUNE, 1880. CONSTITUTIONAL LAW EMINENT DOMAIN --TAKING PRIVATE PROPERTY FOR PUBLIC USE-ASSESS- EVIDENCE - INTEREST OF WITNESS — MAY NOT BE MENT FOR SIDEWALK NOT.- The constitutional lim- SHOWN BY ADMISSIONS. — Under a statute declaring itation that private property shall not be taken for that a person interested in the event of a suit should public use without just compensation, to be ascertained not be excluded as witness, but allowing the fact of by jury when not made by the State, has reference his interest to be shown for tho purpose of affecting only to the exercise of the power of eminent domain, the credibility of his testimony, held, that statements and not to special taxation of contiguous property for made to others by the witness that he vas interested the building of a sidewalk or other public improve- could not be shown. The rules relating to the admisment by cities, towns and villages. Warren v. Henley, sibility of evidence showing the interest of a witness 31 Iowa, 31. It is quite clear that the levying such are the same at common law and under the statute. A local assessments (for the building of sewers and side- difference arises only as to the effect of the interest, walks) is not taking private property for public use and consequently as to the time when it may be shown. under the right of eminent domain, but is the exercise At common law the court passes upon the evidence, of the right of taxation, inherent in every sovereign and if the interest be established, excludes the testiState. Per Redfield, J., in Allen v. Drew, 44 Vt. 175. mony; under the statute the evidence goes to the The courts seem to be very generally agreed, that the jury, and is considered upon the question of the crediauthority to require the property specially benefited bility of the witness. The difference above referred to bear the expense of local improvement is a branch to does not extend to the manner of showing the of the taxing power, or included within it. 2 Dill. interest of the witness. Decisions of the courts made on Mun. Corp., $ 596. The compensation, under this at common law must therefore determine the question provision, is to be ascertained by a jury. As remarked under consideration. It has been often held that testi

mony for the purpose of establishing declarations of a * Appearing in 91 and 95 Illinois Reports.

witness, to the effect that he is interested in the event



of the suit, is not admissible; it is regarded as merely sisted, has been overruled by Maloue v. Hathaway, 61 hearsay evidence. Rich v. Eldridge, 42 N. H. 153; N. Y. 5. This is a mistake, as it was followed in the Vining v. Wooten, Cooke (Tenn.), 127; Commonwealth later case of Booth v. Boston & Albany R. Co., 73 N. v. Waite, 5 Mass. 261; Pierce v. Chase, 8 id. 487; Pol- | Y. 38. Braun v. Chicago, Rock Island & Pacific Raillock's Lessees v. Gillespie, 2 Yeates, 129; Young v. road Co. Opinion by Severs, J. Garland, 18 Me. 409; Stewart v. Lake, 33 id, 87; Cotchett v. Dixon, 4 McCord, 311; Dunn v. Cronise, 9 Ohio, 82 ; OHIO SUPREME COURT ABSTRACT. Sims v. Givan, 2 Blackf. 461; Freem in v. Luckett, 2 J. J. Marsh. 390; Davis v. Whiteside, 4 id. 116; Jones v.


CERTIFICATE OF Tevis, 4 Litt. 25; Stimmel v. Underwood, 3 Gill & STOCK WITHOUT SURRENDER OF OLD - LIABILITY FOR Johns. 282; Walker v. Coursin, 19 Peun. 321. A differ- WRONGFUL ISSUE — DIVIDENDS.-- On the 9th of Sepent rule was recognized in Dunn v. Jones, 1 Cox, 46; tember, 1854, the Cleveland and Mahoning Railroad Anon. 2 Hayw. 340; and Colston v. Nichols, 1 Harr. & Company issued to V. certificates of its capital stock. Johns. 105. The last one was overruled in Stimmel v. The certificates declared upon their face that the stock Underwood, supra; Lucas v. Flinn, 35 Iowa, 9. Erick

was transferable on the books of the company upon the son v. Bell Opinion by Beck, J.

surrender of the certificates. On the 16th of SeptemMARRIED WOMAN - DEED BY - CANNOT BE CONTRA

ber, 1854, the stock was sold to F. by V, who delivered

to him the certificates with blank powers of attorney DICTED BY PAROL. - In the execution of a mortgage by

to enable him to have the stock transferred. The cera husband and wife, the fact that she was induced to

tificates were mislaid by F. and were not discovered sign by deception on the part of her husband cannot

until December, 1871. In tho meantime, on May 8, be set up against an innocent mortgagee. In the

1863, the board of directors of the railroad company, absence of fraud by the mortgagee, or mutual mistake,

on the application of V. issued to B. & P., to whom V. the court must look to the instrument alone to deter

assumed to sell the stock, new certificates of stock, on mine whether she concurred in it. Edgell v. Hagens,

the supposition that the original certificates had been 5 N. W. Rep. (Iowa) 504. It cannot be contradicted

lost by V. On tho application of the administrators by parol testimony. It is undoubtedly true that many

of F., for a transfer of the stock to their names and married women execute deeds and mortgages in pro

for an account of the dividends, the company refused found ignorance of their contents, and with unlimited confidence that their husbands will not mislead them.

the application on the ground of the issue of the new

certificates to B. & P. The by-laws provided that no But they cannot be allowed to plead this ignorance

new certificates should be issued in place of any certiand confidence to the detrimeut of innocent parties.

ficate previously issued, until such previous certificate Ætna Life Insurance Co. v. Franks. Opinion by

was surrendered and cancelled. There was also proAdams, C. J.

vision in the by-laws, that certificates might be issued MASTER AND SERVANT - DUTY AS TO SAFE MACHIN- on the special order of the board of directors in the ERY — FELLOW-SERVANT - INSPECTOR AND BRAKEMAN place of certificates lost or destroyed, on proof of such NOT. – It is the duty of a master not only to provide, loss and destruction, and on receiving security to inin the first instance, proper and safe machinery for his demnify the company against loss consequent upon employees, but to use ordinary care by inspection to the issuing of such new certificates. Held, the issuing see that the machinery remains safe. An inspector of of the new certificates to B. & P., and the allowing cars on a railroad is not a co-servant of a brakeman, so the transfer of the stock to them was a breach of the as to relieve the railroad company from liability for duty wbich the company owed to F. as the holder of such inspector's negligence causing injury to the brake- the original certificates, and this breach of duty creman. Negligence on the part of the corporation may ated a liability on the company to replace the stock to consist of acts of omission or commission, and it neces- which F. was entitled, or to account for its value. The sarily follows that the continuing duty of supervision issuing of the certificates, under the by-law providing and inspection rests on the corporation; for it will not for the issue of certificates in place of such as may have do to say that, having furnished suitable and proper been lost or destroyed, does not affect the liability of machinery and appliances, the corporation can there. the company to F., as the holder of the original certiafter remain passive. The duty of inspection is affirm- ficate. The object of the by-law is to enable persons, ative, and must be continuously fulfilled and positively whose certificates appear to havo been lost or deperformed. In ascertaining whether this has been stroyed, to obtain others, on indemnifying the comdone or not the character of the business should be pany against loss, case other parties should assert considered, and any thing short of this would not be rights against the company under tho original certifiordinary care. As the corporation must act through cates; but does not affect tho rights of such parties. agents and employees, the negligence of tho employee The company is not liable for the dividends paid on upon whom the duty of inspection is devolved is the the stock, before it had notice of the transfer of the negligence of the corporation. The brakemen on certificates to F. Unlike the transfer of the stock, the freight trains and an inspector of such trains cannot surrender or production of the certificates was not be regarded as co-employees in such sense as to pre- necessary to draw tho dividends. Until the company vent the former from recovering of the corporation was notified of the transfer of the certificates, it because of the negligence of the latter. Greenleaf v. was warranted in paying the dividends to V.. the L C. R., 29 Iowa, 14; Kroy v. C., R. I. & P. R. Co., registered owner, or to his order, and by paying 32 id. 357; Buzzell v. Laconia Mfg. Co., 48 Me. 113; the dividends to B. & P. as purchasers under V., Shanny v. Androscoggin Mills, 66 id. 420; Snow v. the company is as fully protected as if the payHousatonio R. Co., 8 Allen, 441; Gilman v. Eastern R. ments had been made to V. directly. Until the Co., 10 id. 233; S. C., 13 id. 433; Ford v. Fitchburg R. transfer of the stock to the holders of the original Co., 110 Mass, 241; Mullan v. Phila. & Southern M. S. certificate was refused, or they had notice of the Co., 78 Pend. 23; Chicago & N. W. R. Co. v. Jackson, transfer of the stock to other parties, the statute of 55 Ill. 492: Brabbits v. Chi go & N. W.R. Co., 38 Wis. limitations did not begin to run. Boynton, J., was of 208; Harper v. R. Co., 47 Mo. 567; Brothers v. Carter, opinion that as the new certificates were issued in 52 id. 373; Porter v. Hannibal & St. Jo. R. Co., Sup. good faith by the company, in accordance with the byCt. Mo., Oct. Term, 1879; Thompson v. Drymala, 1 N. law, it was discharged from further liability. CleveW. Rep. 17; Warner v. Erie R. Co., 39 N. Y. 468; lund & Mahoning Railroad Co. v. Tapett's Adm's. Laning y. N. Y. C. R. Co., 49 id. 522; Flike v. Boston Opinion by White, J. & Albany R. Co., 53 id. 549. This last case, it is in- [Decided March 30, 1880.]

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