Gambar halaman
PDF
ePub
[graphic]

circumstances it must be so. Then afterward he refers mentioned is applied to prevent vexatious litigation to Borjes v. Bedale, and says: "I do not hesitate to and is rigidly enforced in common-law actions, but in follow that decision;" so that decision agrees with equity will not be enforced unless the equity of tho Boyes v. Bedale. I think, if it is agreed that those case requires. In this case the action and judgment cases are decided rightly, in the case of a will of a of Charmed only plaintiff and was enforced against domiciled Englishman, according to the statute of dis- no part of the mortgaged premises. Judgment aftributions, the word "children,” wherever it occurs, firmed. Dougherty v. Remington Paper Company, apmust mean children according to the English law. It pellant et al. Opinion by Earl, J. is impossible that there can be two meanings put on [Decided Sept. 21, 1880.] the same words in the statute. It must mean the

MANDAMUS — WILL LIE AGAINST TOWN BOARD OF same. Then as regards the actual decision, the declara- | AUDIT TO COMPEL SPECIFIC EXAMINATION OF CLAIM.tion by Stuart, V. C., that they take under another Relator, who was commissioner of highways of the will, cannot decide the question of legitimacy for all town of Elmira, presented his bill to the town auditors, purposes.

in proper form and duly verified, for twenty-seven Some further discussion took place, during which days' service, specifying by its date each day for which his lordship said that, as he understood, in Goodman v.

payment was claimed. The rate of compensation of Goodman, the opinions of Dutch advocates were taken, commissioners of highways fixed by statute is two and that according to them all the brothers and sisters dollars per day. The auditor allowed relator thirtyof Madame Pieret and Mrs. Denis were legitimate by four dollars as a gross sum, without allowing or disalDutch law, and he did not at present see on what lowing any specific item alleged in the account, and ground in that action any of them had been excluded

without deciding that any definite or particular days from participating.

were not necessarily spent in the service of the town.

Held, that the action of the town board of auditors NEW YORK COURT OF APPEALS ABSTRACT: was improper and a mandamus would lie to com

pel a proper award. Within the range of their discreFORMER ADJUDICATION ACTION BY PLEDGEE OF

tion boards of auditors are sufficiently powerful. The MORTGAGE TO FORECLOSE-PAYMENT OF JUDGMENT jointly require that they arrive at one in a just and

courts may not dictato their conclusion, but may BY OWNER OF MORTGAGE RESTORES HIS RIGHT TO FORECLOSE.- A executed a mortgage to B to secure

intelligent way and with some reasonable respect for

the possible rights of creditors. A claimant is entitled the payment of $4,500. B assigned the mortgage to plaintiff in his action. Plaintiff assigned it to C to

to the judgment of a board of auditors upon each

item of his claim, and a mandamus framed to compel secure the payment of $1,334, and the assignment was expressed to be upon the condition that it should be the performance of that duty will be sustained. Peovoid upon the payment of that sum. The sum secured affirmed. People ex rel. Thurston v. Board of Town

ple v. Supervisors of Delaware, 45 N. Y. 196. Order by the mortgage was then due. The $1,334 not being Auditors of Elmira, appellants. Opinion by Finch, J. paid as agreed, C commenced an action to foreclose the mortgage, all the parties to this action being made [Decided Sept. 21, 1880.] defendants. That action was defended by A, who set up that the mortgage was given for the sole purpose of UNITED STATES CIRCUIT AND DISTRICT securing against liability for indorsements upon notes

COURT ABSTRACT.* which had been paid, and the mortgagee sustained no damage. Plaintiff in this action also appeared and AGENCY — PAYMENT TO AGENT BY MISTAKE - WHEN denied personal liability. In that action judgment AGENT NOT LIABLE TO REPAY. - It is a general rule was given that C had a lien upon the mortgaged prem- that an agent, known and treated with as such, cannot ises for the $1,334, and a sale of sufficient of them to be compelled to pay back money received by him unpay that sum was ordered. The parties appearing ap- der a mutual mistake of fact, and paid over to his pealed and the judgment was affirmed. Plaintiff paid principal. Holland v. Russell, 30 L. J. 312; 32 id. the amount of the judgment and afterward com- 297 ; Shand v. Grant, 15 C. B. (N. S.) 322-324; Newall menced this action to foreclose the mortgage. The R. v. Tomlinson, L. R., 6 C. P. 405; Buller v. Harrison, company, which had an interest in the mortgaged Cowp. 565-569; Frye v. Lockwood, 4 Cow. 454-456 ; premises, appeared and set up the judgment in the Granger v. Hathaway, 17 Mich. 500; Morral v. McClelprior action as a bar and defense to this action. Held, lan, 1 Wend. 173; Costigan v. Newland, 12 Barb. 456. that the former judgment did not constitute a defense. If the agent acts in bad faith, or with knowledge of The assignment by plaintiff to C constituted a pledge his principal's want of right to receivo the money, or of the mortgage to him as security for the sum is himself a party to an illegal exaction of the money, named. Hoskins v. Kelly, 1 Rob. 160; Campbell v. or is not authorized by his assumed principal to act for Parker, 9 Bosw. 322. Plaintiff remained the general him, as where his power of attorney is a forgery, payowner of the mortgage. The court decided that Chad ment of the money over will be no defense. Miller v. a lien upon the mortgaged premises to the extent of Aris, 3 Esp. 231; Snowdon v. Davis, 1 Taunt. 359; Edthe sum named; that lien was discharged and the wards v. Hodding, 5 id. 416 [*815); Seidell v. Peckmortgage was restored to plaintiff as fully as she owned worth, 10 S. & R. 442. See, also, Story on Agency (8th and possessed it before the assignment. The principle ed.), ss 300, 301, and notes. If the party receiving the that there can be but one suit for the enforcement of

money, though an agent in fact, does not disclose his one entire demand, and that where an action is brought

agency to the party making tho payment, there is of for a part of the demand a judgment in such action is

course no presumed consent or direction that he pay a bar to an action for another part of the demand

over, and payment to his principal will be no defense. (Phillips v. Berick, 16 Johns.136; Bendernagle v. Cocks, In such a case, having acted as a principal, he will not 19 Wend. 207; Fish v. Folley, 6 Hill, 54), has no applica- be permitted to defend on the ground that he was not tion to this case. II C had proceeded to judgment the principal. Canal Bank v. Bank of Albany, 1 Hill, and sale for a part only of his demand, the whole being 287, 293, 294 ; Bank of Commerce v. Union Bank, 3 N. due, and then brought another action, the principle Y. 230, and Kingston Bank v. Ettinge, 40 id. 391, conmight have been invoked against him. But plaintiff sidered. District, S. D. New York, June 24, 1880. did not hold the mortgage under C. Upon satisfying United States v. Pinover. Opinion by Choate, D. J. his lien the pledge was restored to her unaffected by any thing the pledgee might have done. The principle

* Appearing in 3d Federal Reporter

CONSTITUTIONAL LAW - IMPAIRING CONTRACT - EX- officer's return on an original writ cannot be controEMPTION FROM TAXATION - FEDERAL JURISDICTION. verted by the defendant except as provided by statute; - The Legislature of a State may contract in a corpo- and in Estes v. Cooke, 12 R. I. 6, it was decided that rate character for exemption of the corporate property the return on an execution was conclusive on the parfrom taxation, unless there be some constitutional ties in a subsequent action. In other States, with two probibition. Tomlinson v. Branch, 15 Wall. 460. Where or three exceptions, the rule is that the return is cona State has, by valid contract, exempted certain prop- clusive on parties and privies until set aside in some erty from taxation, it cannot by subsequent legislation direct proceeding. Swift v. Cobb, 10 Vt. 282; Bates v., subject that property to taxation, nor prohibit the Willard, 10 Metc. 62, 80; Campbell v. Webster, 15 Gray. United States courts from using their injunctive 28; Whitaker v. Sumner, 7 Pick. 551; Sykes v. Keatpowers to protect the contract from violation. While ing, 118 Mass. 517, 520; Bramford v. Melvin, 7 Me. 14; the general rule is that courts will not enjoin the col- Huntress v. Tiney, 39 id. 257; Messer v. Bailey, 31 N. lection of taxes upon the mere ground that they are H. 9; Herman on Executions, $ 242. The return is in excessive or illegal, yet if their exaction is unconstitu- fact a part of the record, and while it stands is as contional, and the party assessed has no other adequate clusive as any other part of it. Barrows v. National remedy, or their enforcement will occasion irremedi- Rubber Co. Opinion by Durfee, C. J. able oppression and produce a multiplicity of expensive [Decided June 18, 1880.] suits, an injunction to restrain their collection will be

FRAUDULENT CONVEYANCE — CONVEYANCE IN CONgranted. State Railroad Tax Cases, 92 U. S. 575. Cir

SIDERATION OF MARRIAGE NOT VOLUNTARY. - Marcuit, M. D. Tennessee, 1880. Louisville & Nashville riage is deemed in law a valuable consideration. A Railroad Co. v. Gaines, Comptroller. Opinion by Bax

conveyance, therefore, in consideration of marriage, ter, C. J.

stands upon a different footing from a voluntary conMARITIME LAW - SEAMAN CAN BE REQUIRED TO veyance. All the authorities agree to this extent, at WORK ON SUNDAY. - A seaman upon a schooner in the least, that a man, though indebted, may settle a porharbor of Frankfort, Michigan, where she was towed tion of his property on his intended wife, and that, in to receive a cargo of lumber, cannot refuse to work on the absence of fraud, the settlement, if no more than Sunday, in loading the schooner, where the towing a reasonable provision for the wife, will be upheld vessel is not able to enter the harbor by reason of an against existing as well as subsequent creditors. Caminsufficiency of water, and is lying outside in the lake, pion v. Cotton, 17 Ves. Jr. 264; Armfield v. Armfield, awaiting the schooner, and is in a place of danger. Freeman (Miss.), 311; Croft v. Arthur, 3 Des. 223; Buck. Where the master of the schooner was of opinion that ner v. Smyth, 4 id. 371; Davidson v. Graves, Riley's it was necessary, for the safety of the towing vessel, Eq. 232; Magniac v. Thompson, 7 Pet. 348; Marshall v. that the loading of the schooner (begun on Friday) Morris, 16 Ga. 368; Smith v. Allen, 5 Allen, 454; Bonshould be completed on Sunday, and ordered tho work ser v. Miller, 5 Oregon, 110. National Exchange Bank to be done, it was the duty of the crews to obey. In v. Watson. Opinion by Matteson, J. this case, held, that a seaman refusing to work on Sun- [Decided July 3, 1880.] day was rightfully expelled from tho schooner, and STATUTE OF FRAUDS — CONVEYANCE OF REALTY forfeited his wages for his disobedience. The Richard

WITH RENTS RESERVED - IMPLIED CONTRACT. – A conMatt, 1 Biss. 440. District, E. D. Pennsylvania, Aug. 2, veyed to B certain realty by a deed poll in which 1880. Smilh v. Schooner J. C. King. Opinion by specified rents were reserved for periods of time deAcheson, D. J.

scribed. B entered under the deed. Held, that by his PARTIES – TO SUIT TO DETERMINE VALIDITY OF WILL entry B contracted to pay the rents as reserved. Held, -PERSONS NOT IN ESSE. In a suit to determine the further, that B's contract being an implication of law validity of a will it is a settled rule of law that where was not within the statute of frauds. The contract to there are contingent limitations and executory devises pay the rent reserved was not an express contract but to persons not iu being, the suit may proceed against an implied contract, or a contract raised by law from those in being holding the prior estate, and that a the nature of the transaction, and it has been repeatjudgment or decree against the latter binds the former edly held that such contracts are not within tho statute in all respects as if they were in esse and parties to the of frauds. Goodwin v. Gilbert, 9 Mass. 510; Fletcher suit. Especially is this so when the former are before V. McFarlane, 12 id. 43; Felch v. Taylor, 13 Pick. 133; the court by representation - that is, where the rights Sage v. Wilcox, 6 Conn. 81; Allen v. Pryor, 3 A. K. and interests which those not in esse would have if Marsh. 305; Browne's Stat. of Frauds, $ 166. In Goodthen in esse are the same with those of parties in being win v. Gilbert, the doctrine is broadly laid down that, and before the court. Gifford v. Hort, 1 Sch. & Lef. where land is conveyed by deed poll and the grantee 408; Story's Eq. Pl., $$ 145, 792; Mead v. Mitchell, 17 enters under the deed, certain duties being reserved N. Y. 210; Baylor's Lessee v. Dejarnette, 13 Gratt. to be performed, as no action lies against the grantee 152; Falkner v. Davis, 18 id. 651; Powell v. Wright, 7 on the deed, the grantor may maintain assumpsit for Beav. 444-449; Lorrillard v. Costar, 5 Paige, 172; Pal- the' non-performance of the duties reserved, and the mer v. Flower, 1 Eng. Rep. 664; Bassnett v. Moxon, 13 promise being raised by the law is not within the statMoaks, 716; Willis v. Slade, 6 Ves. 498; Lloyd v. Johns, ute of frauds. Iu Pike v. Brown, 7 Cush. 133, Shaw, 9 id. 37-52. Circuit, S. D. Ohio, July, 1880. McArthur C. J., in delivering the opinion of the court, instances v. Allen. Opinion by Swayne, C. J.

the case of rent reserved in a lease by deed poll as a signal and familiar illustration of the doctrine. And

that occupation under the lease is not indispensable to RHODE ISLAND SUPREME COURT AB

the recovery, if only the lease has been accepted, was STRACT.

distinctly decided in Kabley v. Worcester Gas Light

Co., 102 Mass. 392, in a case in which the lessees never EXECUTION - OFFICER'S RETURN ON, CONCLUSIVE occupied at all. “It is enough,” say the court, "that UNTIL DIRECTLY IMPEACHED. An officer's return on they accepted the conveyanco which gave them the an execution is, until changed by proper proceedings right of immediate and exclusive occupation. The operating directly on the record, conclusive upon the law would imply from such acceptance a promise to parties to the action in which the execution issued, and comply with the terms of the lease, and such a promise also upon an assignee of one of the parties who takes is not within the statute of frauds." Providence from him pendente lite, property attached in the action. Christian Union v. Elliott. Opinion by Durfee, C. J. In Angell v. Bowler, 3 R. I. 77, it was decided that an [Decided July 3, 1880.]

KNOWLEDGE OF

CALIFORNIA SUPREME COURT ABSTRACT.

should hold the office from the date of the appointment, subject to the condition that if they failed to

qualify, or perform some other act, the appointment CORPORATION - NOTICE - WHEN

should go for naught. Ball v. Kenfield, Controller. DIRECTOR NOT THAT OF CORPORATION.- The knowl

Opinion by McKinstry, J. edge of the director of a corporation acquired inci

[Decided July 22, 1880.] dentally and not while acting for the corporation is not the knowledge of the corporation so as to charge it. Accordingly where structures were erected upon

CRIMINAL LAW. lands belonging to an agricultural society which were in the possession of W., a director of the society, under a lease for the benefit of W., held, that a mechan

EVIDENCE - - DYING DECLARATIONS-HOPE OF REic's lien could not be filed against such lands on the COVERY RENDERS INCOMPETENT. — An alleged dying ground that the knowledge of W. of the erection of

statement of deceased set forth that “believing that I the structures was chargeable to the society. Unless am very near death and realizing that I may not rethe knowledge of a director of a corporation was ac

cover, I wish to make this, my dying statement," eto. quired by him in the management and covduct of its

She was then sick from the effect of an abortion. Held, business, notice of it is not attributable to the corpo

that the statement was inadmissible. It is essential to ration. If the agent acquires his knowledge casually,

the admissibility of such declarations that it appear or privately, or by rumor, and he does not inform the that they were made under a sense of impending corporation or its agents of it, the corporation is not

death. It is the impression of almost immediate dischargeable with it. “I agree," says Nelson, C. J., in

solution that renders the testimony admissible. Bank of U. S. v. Davis, 2 Hill, 451, "that notice to “ Therefore," says Greenleaf, “where it appears that & director, or knowledge derived by him while not en

the deceased, at the time of the declaration, had any gaged officially in the business of the bank, cannot and expectation or hope of recovery, however slight it may should not operate to the prejudice of the latter. This

have been, and though death actually ensued in an is clear from the ground and reason upon which the hour afterward, the declaration is inadmissible. On doctrine of notice to the principal through the agent

the other hand, a belief that he will not recover is not rests. The principal is chargeable with this knowledge in itself sufficient, unless there be also the prospect of for the reason that the agent is substituted in his

almost immediate dissolution." 1 Greenl. Ev., $ 158. place, and represents him in the particular transac.

This is the rule recognized and approved by all of the tion ; and as this relation, strictly speaking, exists

authorities. The only difficulty that arises comes only while the agent is acting in the business thus

from the application of the rule to the facts of the pardelegated to him, it is proper to limit it to such occa

ticular case. In the case before us, however, we think sions." See, also, Fulton Bank v. New York, etc., it appears upon the face of the paper itself that the Canal Co., 4 Pai. 127. So where a defective deed had

deceased had not abandoned all hope of recovery. been recorded purporting to convey certain land, and

There is here a clear indication that the deceased at one of the directors of a corporation which had ac- the time of making the declaration had not abandoned quired an equity of redemption in the premises, not all hope of recovery. The declaration was therefore acting as agent of the corporation, and having no man- inadmissible. Wharton's Hom. 306-8; Rex v. Woodagement of its business otherwise than as a director,

cox, 2 Leach's C. C. 267, 566; People v. Sanchez, 24 Cal. went to the town records for the purpose of ascertain- 24. In the last case cited this court said: “This species ing the situation of the land, and there saw the record of testimony should always be received with the greatof the deed, but did not inform the corporation or any

est caution, and too much care cannot be observed by of its agents thereof, the Supreme Court of Connecti

the court in scrutinizing the primary facts upon which cut held that the corporation was not, by reason of its admissibility is grounded. No person is entirely these facts, chargeable with knowledge of the deed. exempt from a disposition to excuse and justify his Farrel Foundry Co. v. Dart, 26 Conn. 376. Lothian v.

own conduct, or to inflict vengeance upon one at whose Wood et al. Opinion by McKee, J.

hands he has suffered a grievous wrong: and in the [Decided July 26, 1880. ]

eye of the law this proclivity is presumed, in cases like

the present, to be overcomo and silenced only by the OFFICE- WHEN OFFICIAL TERM COMMENCES —

presence of almost immediate death. An undoubting UTORY CONSTRUCTION. – A statute of California pro

belief existing in the mind of the declarant, at the time vided that the governor should appoint commissioners

the declarations are made, that the finger of death is “who shall hold office for the period of three years

upon him, is indispensable to that sanction which the from and after their appointment," that they should

law exacts; and if it shall appear in any mode that “within twenty days after their appointment” meet

there was a hope of recovery, however faint it may and take an oath to faithfully perform their duties, etc.

have been, still lingering in his breast, that sanction is Held, that a commissioner appointed under the statute

not afforded, and his statement cannot be received." held office from the time of his appointment. This

California Sup. Ct., June 7, 1880. People of California would not sometimes be the case. As was said by

v. Hodgdon. Opinion by Ross, J. Field, J. (People v. Whitman, 10 Cal. 47): "To the complete investiture of an office, the acts of the ap- PLEADING – ATTEMPT TO STEAL. - In an indictment pointing power and of the person appointed must, in for an attempt to steal, it is not necessary to specify some instances, concur. The appointment is complete the particular articles intended to be stolen. In Whart. when the commission is signed by the President; but on Cr. Law, $$ 292 and 1282, it is said that iu indictit is competent for Congress to require the perform- ments for attempts to commit crimes in themselves ance of certain acts by the appointee, such as the exe- indictable, it is not necessary to observe the same parcution of security, the taking of an oath of office, ticularity as is required in indictments for the comand the like, beforo he can enter into the possession mission of the offense itself. And as illustrative of of the office. This has been done in relation to the that position, he says an indictment for an assault office of surveyor-general. The performance of the with an intent to steal from the pocket is good without acts are conditions precedent to the holding of the stating the goods or moneys intended to be stolen. In office." United States v. Le Baron, 19 How. 78. It is accordance with this statement of the rule, it has been also competent for the Legislature to make the taking decided in various states that the offense of attempts of the oath of office, etc., a condition subsequent, and to commit larceny is complete by an intention to steal to provide, as in the case at bar, that the appointees and an act done in pursuance thereof apparently effi

STAT

"

cient to carry out the purpose, and it is not necessary to his conduct in disobeying the order. 2 Taylor on in the bill of indictment to aver the specific articles Ev. (7th ed.), $$ 1400, 1401, 1402; 3 Wharton's Crim Law. intended to be taken, as such fact is extrinsic and not (7th ed.), $ 3009a. In Cobbett v. Hudson, 72 Eng. C.L. essential to constitute a criminal attempt. State v. 11 (decided by Queen's Bench in 1852), Lord Campbell, Wilson, 30 Conn. 500; Comm. v. McDouald, 5 Cush. C. J., observed, that with respect to ordering wit365; People v. Bush, 4 Hill, 133; Spencer v. Ohio, 13 Ohio, nesses out of court, although this is clearly within the 401; Hunter v. State, 29 Ind. 80. North Carolina Sup. power of the judge, and he may fine a witness for disCt., January Term, 1880. State of North Carolina v. obeying this er, the better opinion seems to have Ulley. Opinion by Dillard, J.

been that his power is limited to the infliction of the PLEADING — INFANTICIDE — SEX OF CHILD NOT RE

fine, and that he cannot lawfully refuse to permit the

examination of the witness. Citing Cook v. NetherQUIRED TO BE STATED. - In an indictment for infanticide, although convenient and advisable when it can

cote, 6 C. & P. 471; Rex v. Colley, 1 Mood. & Mal. 329;

Thomas v. David, 7 C. & P. 350. And in Chandler v. be safely done, it is not indispensable that the sex of

Horne, 2 Mood. & R. N. P. 423, Erskine, J., said: “It the murdered child be stated even though its name be unknown or it has no name. The law requires that an

used to be formerly supposed that it was in the disindictment shall be so certain as to the party against

cretion of the judge whether the witness should be

examined. It is now settled and acted upon by all tho whom the offense was committed, as to enable the prisoner to understand who the party is, and upon

judges that the judge has no right to exclude the witwhat charge he is called upon to answer, as to prevent

ness; he may commit him for contempt, but he must

be examined; and it is then matter of remark as to the prisoner from being put in jeopardy a second time for the same offense, and as will authorize the court to

the value of his testimony, that he has willfully dis

obeyed the order. See, also, Nelson v. State, 2 Swan, give the appropriate judgment on conviction. What

237. Virginia Ct. of Appeals, Nov. Term, 1879. Hey would it practically add, in these respects, to the rights and safety of the accused to have the sex alleged ? In

v. Commonwealth of Virginia. Opinion by Burks, J. a criminal proceeding, the allegation of name is enough though there may be more than one person of the same name in the same place. State v. Grant, 22 Me. 171. THE ENGLISH EMPLOYERS' LIABILITY It is enough to allege the name to be unknown, al

BILL. though the grand jury might have ascertained what the name was. Com, v. Stoddard, 9 Allen, 280. An indictment need not describe, by an addition, the per- regulate the liability of employers to make comson upon whom an offense is committed.

Com. v.

pensation for personal injuries suffered by workmen in Varney, 10 Cush. 402. In Bac. Abr. (Indictment G.) it

their service, as amended in committee on recommitis said, Sometimes it may be convenient, for dis

ment and on consideration as amended," and in the tinction sake, to add it,” but not essential, “for it is

form in which it is presented to the House of Lords: sufficieut if the indictment be true, viz., that J. S. was

“1. Amendment of Law. – Where after the comkilled or robbed, though there are many of the same mencement of this act personal injury is caused to a name." The tendency of modern decisions is to less workman (1) by reason of any defect in the ways, strictness than formerly in describing persons and

works, machinery, plant or stock-in-trade connected properties in indictments. If it is sufficient to describe with or used in the business of the employer; or (2) by a man by his name alone without an addition, when

reason of the negligence of any person in the service there are many others of the same name, or allow the

of the employer who has superintendence intrusted to person to be nameless in a presentment of the grand

him while in the exercise of such superintendence; or jury because they do not know what the name is,

(3) by reason of the negligence of any person in the although they could have ascertained it by some pains-service of the employer to whose orders or directions taking, it can be no stretch of legal principle, to say

the workman, at the time of the injury, was bound to that in the case of an infant it is not essential that the

conform, and did conform, where such injury resulted sex should be stated. Com. v. Brettun, 100 Mass. 206;

from his having so conformed; or (4) by reason of the Com. v. Campbell, 103 id. 436; Com. v. Strangford, 112

act or omission of any such person in the service of id. 289. Maine Sup. Ct., Dec., 1879. State of Maine v.

the employer done or made in obedience to the rules Morrisey. Opinion by Peters, J.

or by-laws of the employer, or in obedience to particuTRIAL- EXCLUSION OF WITNESS FROM COURT-ROOM lar instructions given by any person delegated with - FAILURE TO OBEY ORDER DOES NOT DISQUALIFY the authority of the employer in that behalf; (5) by WITNESS, — On a trial of a prisoner for receiving goods reason of the negligence of any person in the service knowing them to be stolen, on the motion of the attor- of the employer who has the charge or control of any ney for the Commonwealth, without objection by the signal, points, locomotivo engine, or train upon a railprisoner's counsel, the court directs the witnesses to way - the workman, or in case the injury results in leave the court-room; and they all leave but one, who death, the legal personal representatives of the workwas in the prisoner's box in the court-room, held on a man, and any persons entitled in case of death, shall requisition from the governor of another State, upon have the samo right of compensation and remedies the charge of the larceny of the same goods. In the against the employer as if the workman had not been progress of the trial the attorney for the Common- a workman of nor in the service of the employer, nor wealth offers this man as a wituess, and he is objected engaged in his work. to by the prisoner, on the ground alone of his remain- “2. Exceptions to Amendment of Law. — A workman ing in the court-room, after tho order of the court, shall not be entitled under this act to any right of held, that he was a competent witness. Where an compensation or remedy against the employer in any order directing the exclusion of witnesses from the of the following cases; that is to say, (1) under subcourt-room during the trial is made, if a witness or the section 1 of section 1, unless tho defect therein menofficer in charge willfully disobeys or violates such tioned arose from or had not been discovered or remeorder, he is liable to be punished for his contempt, and died owing to the negligence of the employer, or of at one time, according to the English practice, it was some person in the service of the employer, and inconsidered that the judge, in the exercise of his dis- trusted by him with the duty of seeing that the ways, cretion, might even exclude the testimony of such a works, machinery, planks, or stock-in-trade were in witness. But now it seems to be the practice to allow proper condition. (2) Under sub-section 4 of section the witness to be examined, subject to observation as i, unless the injury resulted from some impropriety or

defect in the rules, by-laws, or instructions therein mentioned; provided that where a rule or by-law has been approved or has been accepted as a proper rule or by-law by one of her majesty's principal secretaries of State or by the board of trade or any other department of the government, under or by virtue of any act of Parliament, it shall not be deemed for the purposes of this act to be an improper or defective rule or by-law. (3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the enployer, unless he was aware that the employer or such superior already knew of the said defect or negligence.

"3. Limit of sum recoverable as compensation. — The amount of compensation recoverablo under this act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury.

"4. Limit of time for recovery of compensation. An action for the recovery under this act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrenco of the accident causing the injury, or in case of death, within six months from the time of death; provided always that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice.

"5. Money payable under penalty to be deducted from compensation under act.- There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this act, any penalty or part of a penalty which may have been paid in pursuance of auy other act of Parliament to such workman, representatives, or persons in respect of the same cause of action, and where an action has been brought under this act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman for compensation in respect of any cause of action arising under this act, and payment has not previously been made of any penalty or part of a penalty under any other act of Parliament in respect of tho same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other act of Parliament in respect of the same cause of action.

"6. Trial of actions.-1. Every action for recovery of compensation under this act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed. 2. Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. 3. For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this act in a county court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. "County Court'sball, with respect to Scotland, mean the 'Sheriff's Court,' and shall,

with respect to Ireland, mean the Civil Bill Court.' In Scotland any action under this act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section of the Sheriff Courts (Scotland) act, 1877. In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries.

7. Mode of serving notice of injury.-Notice in respect of an injury under this act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of tho person on whom it is to be served. The notice may also be served by post by a prepaid letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and put into the post. Where the employer is a body of persons corporate or unincorporate,the notice shall be served by delivering the same at or by sending it by post in a prepaid letter addressed to the office, or if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defense by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading.

“8. Definitions.--For the purpose of this act, unless the context otherwise requires, the expression 'person who has superintendence intrusted to him' means a person whose sole or principal duty is that of superintendence and who is not ordinarily engaged in manual labor; the expression employer' includes a body of persons corporate or unincorporate; the expression 'workman' means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies.

“9. Commencement of act. — This act shall not como into operation until the first day of January, 1881, which date is in this act referred to as the commencement of this act.

“10. Short title.— This act may be cited as the Employers' Liability Act, 1880.”

CORRESPONDENCE.

MORE “MIDSUMMER."

[ocr errors]

Editor of the Albany Law Journal:

It may seem presumptuous for the writer to suggest that “Midsummer's" problem has not been correctly solved by any of your correspondents; especially as some of them are supported by tho authority of very respectable courts. He is, however, prepared to take that responsibility.

The fallacy of tho reasoning of “E. M. S.," Subscriber" of Port Richmond, and “Sol. Kohn," must bo apparent when it is seen that it would serve to leave either A, B or C "out in the cold,” as follows:

"E. M. S.” starts with the proposition that C is to be paid in full, except as affected by B's mortgage; for the purposes of this argument we will number this proposition “1." The same reasoning which satisfies

« SebelumnyaLanjutkan »