Gambar halaman

The plaintiff corporation contends that the members the import of the opinions delivered in the House of of the firm of Mason, Chapin & Co. have, by sharing or Lords in Cox v. Hickman is correctly summed up by being entitled to share the profits of the business car- O'Brien, J., in Shaw v. Galt, I. R., 16 C. L. 375, thus: ried on by Smith, become, if not actual copartners “The principle to be collected from them appears to with him, at least liable with him as copartners to be, that a partnership, even as to third parties, is not third persons for the debts contracted by him in the coustituted by the mere fact of two or more persons prosecution of his business.

participating or being interested in the net profits of a The position taken by the plaintiff corporation has business; but that the existence of such partnership the support of the earlier English and of numerous implies also the existence of such a relation between American decisions, and, previous to the decision of those persons as that each of them is a principal and Cox v. Hickman in the House of Lords, in 1860, was so each an agent for the others.” well established that Judge Story, in his work on the The doctrine promulgated in the decision of Cox v. Law of Partnership, while he questions whether it Hickman has been developed and applied in England would not have been “more conformable to true prin- in many subsequent cases, and may now be regarded ciples, as well as public policy, to havo held that no as established law in that country. Bullen v. Sharp, partnership should be deemed to exist at all, even as L. R., 1 C. P. 86; Holme v. Hammond, L. R., 7 Exch. to third persons, unless such were the intention of the 218; Mollwo, March & Co. v. The Court of Wards, L. parties, or unless they had so held themselves out to R., 4 P. C. 419; Pooley v. Driver, L. R., 5 Ch. Div. 458; the public," declares, nevertheless, that "the common Ex parte Tennant, L. R., 6 Ch. Div. 303, the substance law has already settled it otherwise," and that “there- of which is seated in Hart v. Kelley, 83 Penn. St. 286, fore it is useless to speculate upon the subject.” Story 290; Lindley on Partnership (3d ed.), 35–47. The docon Partnership, S 36. The ground of the doctrine was

trine has likewise been laid down or approved in many tbat a person who shares the profits ought to share the American cases. Hart v. Kelley, 83 Penn. St. 286; losses, because he takes a part of the fund out of which Harvey v. Childs & Potter, 28 Ohio St. 319; Smith v. the losses are to be paid. But the ground will not Knight, 71 Ill. 148; In re Francis, 2 Saw. 286; 7 Nat. bear examination; for in point of fact, the losses are Bank. Reg. 259; Williams v. Soutter, 7 Iowa, 435; Polk no niore payable out of the profits than out of the cap- v. Buchanan, 5 Sneed, 721; In re Ward & Co., 8 Rep. ital, and in other cases it has been decided, quite in- 136; Richardson v. Hughitt, 8 id. 177. Indeed, it has consistently with this ground, that it is only a partici

been maintained that the American cases, generally, pation in the net, not the gross, profits, which makes hảve never gone to the same extent as the earlier Engthe participant a quasi partner. Other grounds, but

lish cases. Eastman v. Clark, 53 N. H. 276. none more satisfactory, have been suggested. Indeed, Some of the cases above cited are stronger than the the doctrine, though well received by some judges, case at bar. Bullen v. Sharp is such a case. In Mollwo, appears to have been always regarded by others as an March & Co. v. The Court of Wards, the borrower anomaly or legal solecism. It was soon relaxed in agreed to carry on the business, subject to the control of favor of agents or servants, who, it was held, might the lender in several particulars, and to pay the lender take a share of profits by way of compensation for twenty per cent of the profits until the advances were their services without becoming quasi partners. The repaid with twelve per cent interest, and yet it was English courts, however, refused to extend the excep- held that no partnership was created, the primary purtion to cover a loan of money, though upon principle pose being security for the loan. In Polk v. Buchanan it is impossible to discern any difference whether a the lender was to have one-fourth of the net profits portion of the profits goes to pay for services or for for his accommodations, which were to continue for money contributed to the business. Mr. Lindley, in two years, and to have the product of the business his excellent work on Partnership, suggests that this placed under his control, and yet he was held not to be difference of decision was owing to the statutes against a partner. In Williams v. Soutter it was held that a usury, because in many cases a loan of money for a loan of two thousaud dollars, to be repaid at the expirashare of profits could only be upheld by regarding the tion of a year, with interest at the rate of thirty per lender as a partner. Lindley on Partnership (3d ed.), cent, or one-third of the net profits of the business, did 23-5.

not make the lender a copartner with the borrower. In Such was the state of the law, as it was generally un

Cox v. Hickman, Lord Chief Baron Pollock supposes, derstood, or to put the matter as some of the later as a case in which a partnership would clearly not exEnglish judges prefer to put it, as it was generally ist, the case of a loan to be repaid by the application misunderstood, when, in 1860, the House of Lords de- of one-half the net profits as they might arise, the cided the case of Cox v. Hickman, 8 H. L. 268. The lender to have the power to see that the profits were gist of that decision was that a mere participation in applied. If these cases are law, we do not see how it profits does not make the participant a partner unless can be held that a copartnership would result from he has in fact agreed to become such, but is only prima carrying out the contract in the case at bar. facie evidence that he is such, and is rebuttable by In Pooley v. Driver, L. R., 5 Ch. Div. 458, 474, 488, counter-proof to be found in the contract or transac- there was an agreement by the recipients of the accomtion or in the circumstances connected with it. The modation to carry on the business “to the best of their real question is, did the person who is sought to be ability." The court relied on this, in connection with charged on account of his participation in the profits other features of the contract, to show that a partnerever enter into the relation of copartner with the other ship was in reality created under the cover of a loan. participant, or in other words, do they participate on For the law will not tolerate any evasion, but wherthe common footing of principals in the business? ever the agreement creates as a matter of fact the And in explication the question, it was said that relation of partnership, no mere words to the contrary the law of partnership is a branch of the law of agency, will prevent, as regards third persons, its having its inasmuch as, wherever an actual partnership exists, legitimate consequences. Ex parte Delhasse, L. R., 7 the partner who ostensibly carries on the business Ch. Div. 511. In the case at bar, however, we find no does it for himself and as agent for his copartners; or reason to suspect any latent design to create a partnerto put the matter in another form, he and they carry ship under the disguise of a loan; for though there is it on through him on their joint account, so that in here, as in Pooley v. Driver, an agreement on the part law, on the principle of agency, whatever he does in of the borrower to carry on the business to the best the prosecution of the business they do, and whatever advantage, we do not think it affords any inference debts he contracts they contract with him. In Holme that a partnership was intended, for it is scarcely more v. Hammond, L. R., 7 Exch. 218, 230, it is stated that than the law itself would require, namely, that the borrower shall conduct with good faith, and it is cer- Mo. 230; Brown v. Gauss, 10 id. 265; Young r. Prestainly less significant than the stipulations given in ton, 4 Cranch, 239; Pierce v. Lacy, 28 Miss. 193; Hawkes some of the cases above cited And see Ex parte Ten- v. Young, 6 N. H. 300; Wilson v. Murphey, 3 Dev. 352; nant, L. R., 6 Ch. Div. 303. The lenders make a con- Shack v. Anthony, 1 M. & S. 573; Evans v. Bennett, dition of the loan that the borrower shall carry on the 1 Camp. 300, 303, note. The reason is because assumpbusiness to the best advantage, because they are de- sit lies only on simple contracts, and when a contract pendent on him, the business being his and not theirs. by specialty exists, all simple contracts of the same

The plaintiff contends that there is a distinction be- purport are merged in it. If, therefore, the action tween an agreement for participation and actual par- were against Smith alone, we think it clearly could ticipation, and that while the former may be only not be maintained, and of course it cannot be mainprima facie, the latter is conclusive evidence of part- tained against him and others unless they were conership. We do not find that the distinction is well partners with him. The question is, then, can it be founded in either reason or precedent. It certainly is maintained against him and others if they were his conot well founded if partnership is a fact dependent on partners? There is in our opinion an insuperable obagreement, and not a mere matter of legal imputation, stacle to it. For if he is not liable individually in asand as we understand the current of modern decision, sumpsit because he is liable on his contract under seal it is such a fact; and the only case in which a person, in the higher form of action, how can he be liable who is sought to be charged as a partner, is precluded jointly with others; the cause of action, which origfrom proving the actual fact is when he has held him-inally came into existence under the contract under self out, or permitted himself to be held out, as a seal, remaining always one and the same? We do not partner.

see how he can, consistently with the rules of pleadThe plaintiff also contends that ina uch as partici- ing or with the rule that the same cause of action canpation in profits, if not conclusive, is at least prima not exist at the same time as a simple coutract and as a facie evidence of partnership, it is for the jury to specialty. It is only in caso the contract under seal say whether the defendants are partners or not. This could be regarded as collateral to an implied contract may be so if there is testimony outside the contract on the part of all the defendants that the action could and its execution going to show the existence of a lie, but it cannot be so regarded because it is itself the partnership. But if there is no such outside testimony, original or principal contract, and being express leaves if all that the members of the firm of Mason, Chapin no room for any contract by implication. Banorgee v. & Co. have done is to carry the contract into effect ac- Hovey, 5 Mass. 11; Kimball v. Tucker, 10 id. 192; cording to its terms, then the qnestion is wholly for the Blume v. McClurken, 10 Watts, 380; Eames v. Preston, court; for nothing done in execution of the contract 20 Ill. 389. The plaintiff has cited numerous cases, of could create a partnership unless the contract is itself which the three following are most in point: Cram v. a contract for a partnership, and whether it is or not, Bangor House Proprietary, 12 Me. 354; Van Deussen v. it being in writing, is simply a question of legal con- Blum, 18 Pick. 229; Fagely v. Bellas, 17 Penn . St. 67. struction.

In the first of these cases the contract was for the The Roman law and the modern foreign law, Judge benefit of a corporation, but was signed and sealed by Story says, do not create partnerships as to third per- its agents with their own names and seals. It was sons between parties without their consent, and there- held that an action of assumpsit would lie against the fore, he adds, the common law appears to have pressed corporation which had received the benefit of the conits principles to an extent not required by, if it is con- tract. The court appear to treat the sealed contract sistent with, natural justice. Story on Partnership, as if it were not binding either on the corporation or $ 37. If Judge Story were living to-day he would its agents, and if this was so, the decision was right doubtless rejoice to find that the common law, as ex- beyond any question. Moreover the action was against pounded by the highest judicial tribunals in England, the corporation alone and not against any person who does not diverge from the Roman and modern foreign signed the contract under seal. In the second case the law, nor from natural justice, so widely as ho had in- action was debt, not assumpsit. The declaration conferred from the earlier English cases. It is certainly a tained, besides a special count on the contract, general great advantage to have the law in harmony with nat- counts for work done and materials furnished, and the ural justice. A law that no person can share in the court permitted the plaintiff to recover on the latter profits of a business without becoming liable as a part-counts, notwithstanding the contract was under seal ner for its losses is not such a law, for it subjects men, and signed in the firm name by only one of the partners. without any fault on their part, to liabilities, as if by The case appears to have been decided without regard contract, which they never contracted. In this State to the previous and thoroughly considered case of there is no reported decision which is inconsistent Banorgee v. Hovey, the contract apparently being conwith the later English cases, and we think the later sidered a nullity, whereas it was, according to the preEnglish cases are to be accepted as the truest and most cedents, the deed of the partner who sigued it. Tho authoritative exposition of the common law.

case of Fagely v. Bellas is directly in point, but it is a Taking then the first question to be as previously mere decision without reasons assigned or precedents stated, namely: Would the contract, if carried into cited. We do not think these cases ought to control effect according to its terms, make the parties to it co- our decision. The contract here was executed by partners, or render them liable to third persons as co- Smith in his own name, and thero can be no doubt partners ? we answer it in the negative.

that he is individually bound by it. There are cases The second question arises thus: The action is as- which hold that where the partner who executes the sumpsit for goods sold and delivered. The goods were obligation is insolvent, the other partners may be sold by contract under seal, executed May 1, 1878, by reached in equity, there being no remedy against them the plaintiff and the defendant Smith, and were sub- at law. Purviance v. Sutherland, 2 Ohio St. 478; Linsequently delivered under it. The contract purportsney's Admr. v. Dare's Admr., 2 Leigh, 588; Sale v. to be simply the individual contract of Smith with the Dishman, 3 id. 548; Weaver v. Tapscott, 9 id. 424, 426; plaintiff. The defendants contend that assumpsit James v. Bostwick, Wright (Ohio), 142; Wharton v. cannot be maintained. The question is, can it be Woodburn, 4 Dev. & B. 507. These decisions rest on maintained ?

the assumption that at law an action will lie only op Ordinarily an action of assumpsit does not lie for the specialty. And wo think if there is any remedy money due on a contract under seal so long as an ac- against the nou-executing partners it is in equity. tion can be maintained on the specialty. Gilman v. We think, therefore, there being no claim that the School District, 18 N, H. 215; Clendennen v. Paulsel, 3 1 goods were furnished otherwise than in fulfillment of



the contract under seal, without any variation or ant's real estate, though no service had been made on abandonment of it, that the plaintiff cannot maintain him, could not be used to commence a new action of an action of assumpsit.

later date between the same parties. No case has been The plaintiff must therefore, agreeably to the agree- found where after a writ has been served and placed ment, become nonsuit, and judgment must be entered on the files of the court, it has been allowed to be used for the defendants for their costs.

to commence a new proceeding. To allow such a

practice “would tend to give the process and files of MAINE SUPREME JUDICIAL COURT AB

the court an unseemly and slovenly appearance," and

deprive the officers of the court of their legal fees. STRACT.*

Parsons v. Shorey, supra. In re Marson. Opinion by

Appleton, C. J.
assessed for public purposes, cannot constitutionally

MASSACHUSETTS SUPREME JUDICIAL be imposed upon a portion only of the real estate of a

COURT ABSTRACT. town, leaving the remainder exempt. A legislative

JUNE, 1880. act, authorizing a village corporation to levy a local tax upon the real estate of its municipality for public

CONSIDERATION — AGREEMENT TO ACCEPT PART OF purposes — thus imposing a local tax for general and public purposes upon the real estate of one part of a

DEBT AS FULL PAYMENT.- Where a creditor promised town, leaving the other part untaxed transcends the

in consideration of the payment of part of the sum power of the Legislature, and is unconstitutional and

due on a note to accept that part as payment in full, void. Brewer Brick Co. v. Brewer, 62 Me. 62; Farns

no agreement under seal being made, held, that this worth Co. v. Lisbon, id. 451. “There is no case to

did not relieve a guarantor of the note. The payment be found in this State, nor, as I believe, after a very

of part of an acknowledged debt after its maturity has thorough search, in any other — with limitations in

often been held to be no sufficient consideration for a the Constitution or without them - in which it has

release, not under seal, of the remainder. It has no been held that a Legislature, by virtue merely of its

effect as an accord and satisfaction, and rests upon no general powers, can levy, or authorize a municipality

legal or valid consideration. Harriman v. Harriman, to levy, a local tax for general purposes. It matters

12 Gray, 341; Jennings v. Chase, 10 Allen, 526. Lathrop not whether an assessment upon an individual, or a

v. Page. Opinion by Ames, J. class of individuals, for a general, and not a mere local CRIMINAL LAW -- JOINDER

OFFENSES-LARpurpose, be regarded as an act of confiscation, a judi- CENY - BURGLARY - RECEIVING STOLEN GOODS. A cial sentence or rescript, or a taking of private prop- thief and a receiver of goods stolen may be indicted erty for public use without compensation; in any together. Commonwealth v. Adams, 7 Gray, 43. In aspect it transcends the power of the Legislature, and an indictment for breaking and entering a building, is void.” Sharswood, J., in Hammett v. Philadelphia, with intent to steal, it is usual, though not necessary, 65 Penn. St. 146. “A legislative act, authorizing the to allege an actual stealing therein; and if one person building of a public bridge, and directing the expenses is charged both with breaking and entering and with to be assessed on A., B. and C., such persons not be- stealing, he may be convicted and sentenced for either ing in any way peculiarly benefited by such structure, offense, or if the two offenses are charged in separate would not be an act of taxation, but a condemnation counts and are proved to be distinct, for both. Crowof so much of the money of the persons designated to ley v. Commonwealth, 11 Metc. 575. If one person a public use.” Beasley, C. J., in Tidewater Co. v. Cos- breaks and enters a building and steals therein, and ter, 3 C. E. Green, 518. “It would be wholly beyond another person takes no part in the transaction until the scope of legislative power to authorize a munici- after the breaking has been accomplished, but participality to levy a local tax for general purposes.

pates in the subsequent stealing, each may be convicted A law which would attempt to make one person, or a and sentenced accordingly, the one for the breaking given number of persons, under the guise of local as

and entering, and the other for stealing under an insessments, pay a general revenue for the public at large, dictment which charges both defendants with having would not be an exercise of the taxing power, but an

jointly committed both offenses. Rex v. Butterworth, act of confiscation.” Wagner, J., in McCormick v. Russ. & Ry. 520. Or they may be separately charged Patchin, 53 Mo. 33. Dyar v. Farmington Village Cor- in one indictment according to the actual facts of the poration. Opinion by Walton, J.

case, the one with breaking and entering and stealing, PRACTICE - WRIT USED AND FILED MAY NOT BE

and the other with stealing only, or with receiving the USED IN NEW PROCEEDING.– When a petition for in

goods stolen. Rex v. Hartall, 7 C. & P. 475; Common

wealth v. Hills, 10 Cush. 530. solvency has been served and placed on the files of the

Commonwealth v. Darcourt and the proceedings have been subsequently dis

ling. Opinion by Gray, C. J. missed, such petition cannot be withdrawn from the


9- IN ANOTHER STATE FOLLOWED BY MARfiles and reissued and made the basis of subsequent RIAGE - ESTOPPEL – ACQUIESCENCE.-In an action by proceedings. In Lyford v. Bryant, 38 N. H. 89, a writ a wife against her husband for divorce and adultery it was quashed on motion for a defect apparent on its

appeared that he had procured a divorce from her in face. “It is said," observes Bell, J., in delivering the

an action in an another State in which action she had opinion of the court, “that the cause for quashing the

appeared; that she afterward executed a release, rewrit was, that it was drawn upon a blank, which had

citing the divorce obtained by him, and for a pecunibeen before used for the commencement of another ary consideration discharging all her claims upon him action which had been entered in court. Beyond

or his estate. And that he afterward married in that doubt, such a blank, having been once so used, has per

State. Held, that the wife could not treat his subseformed its office and it has ceased to be capable of use

quent marriage and cohabitation with another woman to draw a valid writ upon afterward. The uniform as a violation of his marital obligations to herself. A practice has been to quash writs so drawn at once and

defense to the action by the wife allowed, not upon there seems to us no doubt of its propriety.” So, in

the ground of a strict estoppel, but because her own Parsons v. Shorey, 48 N. H. 550, it was held that a

conduct amounted to a connivance at, or acquiescence writ, which had been served by attaching the defend

in, his subsequent marriage. Kerrigan v. Kerrigan, 2

McCarter, 146; Palmer v. Palmer, 1 Sw. & Tr. 551; *To appear in 70 Maine Reports.

Boulting v. Boulting, 3 id. 329; Pierce v. Pierce, 3


Pick. 299; Lyster v. Lyster, 111 Mass. 327. See, also, resentative had or had not collected such interest. Smith v. Smith, 13 Gray, 209. Loud v. Loud. Opinion Held, further, that although B's executrix was responby Gray, C. J.

sible for the interest falling due on the collateral notes, LORD'S DAY – INJURY BY DOG TO ONE TRAVELLING

she was not, in the circumstances, responsible for the ON — DEFENSE - CONTRIBUTORY NEGLIGENCE. — Plain- principal of these notes. It is undoubtedly the law tiff was driving his horse and buggy along the

that the pledgee of a chose in action, who receives it public highway in Boston on Sunday, not upon

as collateral security, is bound to use, not extraordia work of necessity or mercy, when defendant's

nary care, but ordinary or reasonable care and dilidog jumped at the head of the horse, frighten

gence to secure its payment when due. 1 Am. Lead. ing him and causing him to be unmanageable so

Cas. 402-3; Lawrence v. McCalmont, 2 How. (U.S.) 426; that he overturned plaintiff's buggy. Held, that

Kiser v. Ruddick, 8 Blackf. 382. The law implies on the fact that plaintiff was unlawfully travelling

the part of the pledgee, from the nature of tho transon the Lord's day would not relieve defendant from

action, an agreement to use such care to protect the liability under a statute for the injury caused by the

pledgor's interest and make the pledge available. dog. The fact that he was travelling unlawfully would

Accordingly, if the pledge consists of indorsed negonot defeat his right to recover, unless his unlawful

tiable paper, the pledgee must present it for payment act was a contributory cause of the injury he sustained.

at maturity, and if it is not paid, must give notice to McGrath v. Merwin, 112 Mass. 467; Marble v. Ross,

charge the indorser, or if loss ensues, he will be liable 124 id. 44, and cases cited. It has been held in this

to make it good. 1 Am. Lead. Cas. 123, 124; MCCommonwealth that if a person who is unlawfully trav

Lughan v. Bovard, 4 Watts, 308; Ormsby v. Fortune, elling on the Lord's day is injured by a defective high

16 Serg. & R. 302. And there are cases which go so far way or by a collision with the vehicle of another trav

as to hold that the pledgee will be liable for neglecting eller, he cannot recover for the injury. This is upon

to put the collateral in suit, when a prudent man the ground that his illegal act aids in producing the in

would do it, if any loss results from the neglect. jury, or, in other words, is a contributory cause. Ly

Lamberton v. Windom, 12 Minn. 232; Wakeman v. ons v. Desotelle, 124 Mass. 387; Conolly v. Boston, 117

Gowdy, 10 Bosw. 208; Slevin v. Morrow, 4 Ind. 425; id. 64. On the other hand, it has been held in several

Ex parte Mure, 2 Cox, 63; Williams v. Price, 1 Sim. & cases that if a person, who is at the time acting in vio

Stu. 581; Lyon v. Huntingdon Bank, 12 Serg. & R. 61; lation of law, receives an injury caused by the wrong

Hoard v. Garner, 10 N. Y. 261; but see 1 Am. Lead. ful or negligent act of another, he may recover there

Cas. 404. But the pledgee is not bound to exercise exfor if his own illegal act was merely a condition, and

traordinary care. Hence he is neither bound to forenot a contributory cause of the įnjury. Steele v. Burk

cast the markets for the pledgor, nor to watch the hardt, 104 Mass. 59; Kearns v. Sowden, id. note;

markets for the most favorable opportunity to sell tho Spofford v. Harlow, 3 Allen, 176. We are of opinion pledge. Granite Bank v. Richardson, 7 Meto. 407; that the case at bar falls within the last-named class.

Robinson v. Hurley, 11 Iowa, 410; Howard v. BrigThe plaintiff when travelling was assaulted and injured ham, 98 Mass. 133; O'Neill v. Whigham, 87 Penn. St. by a dog for whose acts the defeudant is responsible.

394; Richardson v. Insurance Co. of Va., 27 Gratt. 749; Gen. Stats., ch. 88, $ 59; Le Forest v. Tolman, 117 Mass.

Clark v. Young, 1 Cranch, 181. Whiton v. Paul. 109. The act of travelling had no tendency to produce

Opinion by Durfee, C. J. the assault or the consequent injury; and therefore, EXECUTORS — PAYMENT TO ONE OR SEVERAL DISthough the plaintiff was travelling in violation of law, CHARGES DEBT DUE ESTATE. A and B were execuit does not defeat his right of recovery. White v. Lang. tors of an estate. A made collections and squandered Opinion by Morton, J.

the receipts; whereupon C, a debtor of the estate,

agreed with B to make no payments to A except upon RHODE ISLAND SUPREM COURT AB

orders bearing B's signature. A subsequently preSTRACT.

sented an order signed by himself as executor, and

bearing a signature of B forged by A. C in good faith MAY AND JUNE, 1880.

paid this order. In an action by B against C to recover BAILMENT-DUTY OF PLEDGEE OF SECURITIES TO

the balance due to the estate, held, that the payment

by C made on the order bearing A's genuine signature COLLECT INTEREST — NEGLIGENCE -- DEPRECIATION OF SECURITIES. A transferred to B, as collateral, certain

and B's forged signature was valid. There can be no promissory notes secured by mortgages. The notes

doubt that the ordinary rule is that co-executors, howbore interest payable half yearly, and the mortgages

ever numerous, have each of them complete power to contained powers of sale if default was made in paying

administer the estate. Williams on Exrs. 946; Charlesthe interest when due, and also contained a provision,

ton v. Earl of Durham, L. R., 4 Ch. App. 433; Hall v. that in case of sale for non-payment of interest, the

Carter, 8 Ga. 388. A payment, therefore, to any one is principal should be due and payable on the day of such

equivalent to payment to all. Ordinarily, too, neither sale. A notified B by letter that the power to collect

can prevent the others receiving payment. See Herthe interest was wholly in B’s hands; that B's duty

bert v. Pigot, 4 Tyrw. 28; Hill v. Simpson, 7 Ves. Jr. was to collect the interest, if necessary, by sale, and

152; Keane v. Robards, 4 Madd. Ch. 332; Whale v. credit A with the collections, and that A would hold

Booth, 4 T. R. 625, note a; Sherburno v. Goodwin, 44 B responsible for any neglect. After B's death, A

N. H. 271; Dodson v. Simpson, 2 Rand, 294; Ashton v. wrote to B's executrix, who was sole legatee and de

Atlantic Bk., 3 Allen, 217. Stone v. Union Savings

Bank. visee, to the same effect. Both B and B's representative neglected to collect much of the interest and to MUNICIPAL CORPORATION - LIABILITY FOR TRESenforce payment by sale. By the depreciation of PASSES OF AGENTS. — The city of Provideuce, owning property the mortgages became nearly valueless, and by purchase certain lots on both sides of a private way, the mortgagors were irresponsible. It appearing that the highway commissioners of the city excavated prompt sales would have realized enough to pay the gravel from the lots and the way until the latter becollateral notes in full, on a bill in equity to redeem, came impassable. The gravel was used for highway and for an account, held, that B's executrix was re- repairs at various and remote points. All the expenses sponsible for neglecting to collect the interest as it fell were paid from the city treasury and from regular apdue. Held, further, that A was entitled to have his propriations. In an action against the city brought by principal debt reduced by the amounts of interest fall- another owner of land on the private way, held, that ing due on the collateral notes, whether B and B's rep- the highway commissioners were the agents of the


city. Held, further, that the city was liable for their trial, in giving his charge, or on the motion for a new tort in making the way impassable. The commission- trial.” (2) Held, also, that it was error not to permit ers, though they invaded the right of the plaintiff, did defendant to prove, if he could, his willingness to try so, not only for the benefit of the city, but also in the his shoe in the foot-prints formed upon the ground and general course of their employment. They may be supposed to have been made by the assassin, and also regarded as the agents of the city, even in the excesses that he requested the parties having him under arrest which they committed. Howo v. Newmarch, 12 Allen, to measure his horse's foot and apply the measure to 49; Levi v. Brooks, 121 Mass. 501 ; Carman v. Mayor of the horse tracks supposed to have been made by the New York, 14 Abb. Pr. 301; Lee v. Village of Sandy animal ridden by the assassin to and from the place of Hill, 40 N. Y. 442; Luttrell v. Hazen, 3 Sneed, 20; Hil- | killing. Texas Court of Appeals, March 13, 1880. dreth v. City of Lowell, 11 Gray, 345. The case is not Bouldin v. State of Texas. Opinion by White, P. J. within the rule laid down in Donnelly v. Tripp, 12 R. I. 97, for there the act complained of was not only un

NEW BOOKS AND NEW EDITIONS. authorized in itself, but was not committed in the course of or in excess of a work which was authorized. NAAR'S LAW OF SUFFRAGE AND ELECTIONS. Sprague v. Tripp. Opinion by Durfee, C. J.

The Law of Suffrage and Elections. Being a Compendium

of Cases and Decisions showing the origin of the ElectCRIMINAL LAW.

ive Franchise, and defining Citizenship and Legal

Residence, together with the clauses of the State ConPLEADING - COMPLAINT FOR UNLAWFULLY SELLING

stitutions prescribing the qualifications for Suffrage,

and the law governing the conduct of Elections in the LIQUOR. — A criminal complaint for the unlawful sale

several States. With an appendix containing the proof liquor charged the defendant with unlawfully sell- visions of the United States Constitution and Revised ing on a day given “without license first had and ob- Statutes regulating the Election of Presidents, Senators, tained.” Held, that these words sufficiently charged and Representatives. By M. D. Naar, Counsellor at the want of license to sell when the sale was made. A Law. Trenton, N. J. 1880. Pp. xiii, 317. complaint for unlawfully selling liquor need not aver 'HE the price paid for the liquor nor the residence and oc

page, and the work seems methodically and thorcupation of the purchaser. See as to the question of oughly done. It has frequent foot-notes and a table of license: Edwards v. State, 22 Ark. 253; Bolduc v.

There are several chapters which are perhaps Randall, 107 Mass. 121; Kadgihn v. City of Blooming

not suggested in the title, such as those on Bribery ton, 58 III. 229; Commonwealth v. Bryden, 9 Metc. 137; , and Corruption, Election Contests, Taxes and Suffrage, Commonwealth v. Baker, 10 Cush. 405; Commonwealth Liability of Election Officers, etc. Doubtless tho work v. Dunn, 14 Gray, 401; Lord v. Jones, 24 Me. 439; Com- would prove useful to, even if not purchased by all of monwealth v. Doherty, 10 Cush. 52; Commonwealth the class to whom it is dedicated — the voters of the v. Bugbee, 4 Gray, 206; State v. Price, 11 N. J. Law,

United States of America. 203. As to the question of price: Commonwealth v. Bryden, 9 Metc. 137; Commonwealth v. Baker, 10

BURKE'S LAW OF PUBLIC SCHOOLS. Cash. 405; Commonwealth v. Dunn, 14 Gray, 401; Kil

A Treatise on the Law of Public Schools, by Finley Burke, bourn v. The State, 9 Conn. 560; State v. Reed, 35 Me.

Counsellor at Law, Council Bluffs, Iowa. New York : 489; State v. Fuller, 33 N. H. 259; State v. Munger, 15

A. S. Barnes & Co. 1880. Pp. viii, 151. Vt. 290; State v. Whitney, 15 id. 298; People v. Adams,

This work is divided into the following chapters : 17 Wend. 475; People v. Gilkinson, 4 Park. Cr. 26; Can

taxation for public schools; exemption from taxation nady v. People, 17 Ill. 158; Hintermeister v. Iowa, 1 Iowa, 102; State v. Ladd, 15 Mo. 430; State v. Miller,

of property used for educational purpose; condemna

tions of sites for school-houses; elections; school offi24 id. 532; State v. Fanning, 38 id. 359; State v. Melton, 8 id. 417; State v. Rogers, 39 id. 431; Hare v.

cers; use of school property ; school district meetings;

employment of school teachers; school regulations; State, 4 Ind. 241; State v. Murphy, 8 Blackf. 498. As to the description of the purchaser: Cotton v. State, 4 corporal punishment. It has reference to statutes and


an index, and a table of cases. It is a well-conTexas, 260; State v. France, 1 Overt, 434; State v.

sidered and useful manual. Black, 31 Texas, 560; State v. Bell, 65 N. C. 313; State V. Anderson, 3 Rich. 172; State v. Brite, 73 N. C. 26; PATERSON'S LIBERTY OF THE PRESS, ETC. State v. Henderson, 68 id. 348; State v. Doyle, 11 R. I. 574. As to the uncertainty of the complaint: United

The Liberty of the Press and Public Worship. Being Com

mentaries on the Liberty of the Subject and the Laws States v. Claflin, 13 Blatchf. C. C. 178; Regina v. Mans

of England. By James Paterson, M. A., Barrister at field, 1 Car. & M. 140. Rhode Island Sup. Ct., April 1, Law, sometime Commissioner of English and Irish 1880. State of Rhode Island v. Hines. Opinion per Fisheries. London: Macmillan & Co., 1880. Pp. xxxi, Curiam.

568. TRIAL- JURY TAKING WEAPONS CAUSING HOMICIDE The particular subjects treated in this work are the WITH THEM - EVIDENCE — FOOT PRINTS. -- (1) In a following: freedom of public meetings, addresses, and trial for murder held that it was error for the court to petitions; freedom of the press and of correspondence permit the jury to take with them, into their room by post; restriction of the press and of speech as rewhen they retired to consider of their findings, the gards blasphemy and immorality; abuse of free speech rifle gun and balls which had been exhibited and tes-by seditious words and writings; libels ou Parliament tified about by the witnesses. As was said in Smith v. and right to publish parliamentary debates; libels and State, 42 Tex. 444: “If, by this means, they, the jury, comments on courts of justice, reports of trials, and or either of them, did obtain a personal knowledge of comments on public matters; abuse of speech and a material fact in the cause before finding their verdict, writing by defamation; characteristics of libels and and it was considered by them in finding their verdict, excusable libels; remedies for libel by civil and crimthen they acted upon a fact known to themselves, not inal proceedings; copyright ; patent right and tradedeveloped publicly on the trial as to how they under- | mark; security of public worship. Some 200 pages stood it, concerning which defendant has had no op- are devoted to the last-mentioned topic, which has portunity to cross-examine them as witnesses, and no particular interest to any but the English, inasupon which, being unknown, the defendant or his much as it treats exclusively of the English church and counsel have not been heard, and of which the judge, its relations to others. The rest of the book is an extrying the cause, had no information either on the cellent generalization aud summary, expressed in an

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