Gambar halaman

circumstances it must be so. Then afterward he refers mentioned is applied to prevent vexatious litigation to Boyes 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 towu 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 tho 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

courts may not dictato their conclusion, but may MORTGAGE TO FORECLOSE- PAYMENT OF JUDGMENT

jointly require that they arrivo at one in a just and BY OWNER OF MORTGAGE RESTORES HIS RIGHT TO

intelligent way and with some reasonable respect for FORECLOSE.- A executed a mortgage to B to secure

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

tem of his claim, and a mand 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. Peo

Order void upon the payment of that sum. The sum secured

ple v. Supervisors of Delaware, 45 N. Y. 196. by the mortgage was then due. The $1,334 not being

affirmed. People ex rel. Thurston v. Board of Town

Auditors of Elmira, appellants. Opinion by Fiuch, J. paid as agreed, C commenced an action to foreclose

[Decided Sept. 21, 1880.) the mortgage, all the parties to this action being made 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, kuown 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 pledgo 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 tho 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 tiou to this case. If 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. bis 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; BuckWhere the master of the schooner was of opinion that ner v. Smyth, 4 id. 371; Davidson y. 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 REALTY forfeited his wages for his disobedience. The Richard

WITH RENTS RESERVED - IMPLIED CONTRACT. – A conMatt, 1 Biss. 410. District, E. D. Pennsylvania, Aug. 2,

veyed to B certain realty by a deed poll in which 1880. Smith 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 savie 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 reserred, and the mer v. Flower, 1 Eng. Rep. 661; Bassnett v. Moxon, 13 promise being raised by the law is not within the state Moaks, 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 RHODE ISLAND SUPREME COURT AB

that occupation under the lease is not indispensable to

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 nerer 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 upou the law would imply from such acceptance a promise to parties to the action in which the execution issued, and comply with tho terms of the lease, and such a promiso 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.]



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 should go for naught. Ball v. Kenfield, Controller. Opinion by McKinstry, J. [Decided July 22, 1880.]



KNOWLEDGE OF DIRECTOR NOT THAT OF CORPORATION.- The knowledge of the director of a corporation acquired incidentally 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 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 mechanic's lien could not be filed against such lands on the ground that the knowledge of W. of the erection of the structures was chargeable to the society. Unless the knowledge of a director of a corporation was acquired by him in the management and conduct of its business, notice of it is not attributable to the corporation. If the agent acquires his knowledge casually, or privately, or by rumor, and he does not inform the corporation or its agents of it, the corporation is not chargeable with it. “I agree," says Nelson, C. J., in Bank of U. S. v. Davis, 2 Hill, 451, "that notice to a director, or knowledge derived by him while not engaged officially in the business of the bank, cannot and should not operate to the prejudice of the latter. This is clear from the ground and reason upon which the doctrine of notice to the principal through the agent rests. The principal is chargeable with this knowledge for the reason that the ageut is substituted in his place, and represeuts him in the particular transaction ; and as this relation, strictly speaking, exists only while the agent is acting in the business thus delegated to him, it is proper to limit it to such occasions." See, also, Fulton Bank v. New York, etc., Canal Co., 4 Pai. 127. So where a defective deed had been recorded purporting to convey certain land, and one of the directors of a corporation which had acquired an equity of redemption in the premises, not acting as agent of the corporation, and having no management of its business otherwise than as a director, went to the town records for the purpose of ascertaining the situation of the land, and there saw the record of the deed, but did not inform the corporation or any of its agents thereof, the Supreme Court of Connecticut held that the corporation was not, by reason of these facts, chargeable with knowledge of the deed. Farrel Foundry Co. v. Dart, 26 Conn. 376. Lothian v. Wood et al. Opinion by McKee, J. [Decided July 26, 1880.]

OFFICE — WHEN OFFICIAL TERM COMMENCES -- STATUTORY CONSTRUCTION.– A statute of California provided that the governor should appoint commissioners * who shall hold office for the period of three years from and after their appointment," that they should "within twenty days after their appointment" meet and take an oath to faithfully perform their duties, etc. Held, that a commissioner appointed under the statute held office from the time of his appointment. This would not sometimes be the case. As was said by Field, J. (People v. Whitman, 10 Cal. 47): “To the complete investiture of an office, the acts of the appointing power and of the person appointed must, in some instances, concur. The appointment is complete when the commission is signed by the President; but it is competent for Congress to require the performance of certain acts by the appointee, such as the execution of security, the taking of an oath of office, and the like, beforo he can enter into the possession of the office. This has been done in relation to the office of surveyor-general. The performance of the acts are conditions precedent to the holding of the office." United States v. Le Baron, 19 How. 78. It is also competent for the Legislature to make the taking of the oath of office, etc., a condition subsequent, and to provide, as in the case at bar, that the appointees

EVIDENCE - DYING DECLARATIONS HOPE OF RECOVERY RENDERS INCOMPETENT. — An alleged dying statement of deceased set forth that “believing that I am very near death and realizing that I may not recover, I wish to make this, my dying statement,” eto. She was then sick from the effect of an abortion, Ileld, that the statement was inadmissible. It is essential to the admissibility of such declarations that it appear that they were made under a sense of impending death. It is the impression of almost immediate dissolution that renders the testimony admissible. “ Therefore," says Greenleaf, “where it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterward, the declaration is inadmissible. On the other hand, a belief that he will not recover is not in itself sufficient, unless there be also the prospect of almost immediate dissolution." 1 Greenl. Ev., $ 158. This is the rule recognized and approved by all of the authorities. The only difficulty that arises comes from the application of the rule to the facts of the particular case. In the case before us, however, we think it appears upon the face of the paper itself that the deceased had not abandoned all hope of recovery. There is here a clear indication that the deceased at the time of making the declaration had not abandoned all hope of recovery. The declaration was therefore inadmissible. Wharton's Hom. 306-8; Rex v. Woodcox, 2 Leach's C. C. 267, 566; People v. Sanchez, 24 Cal. 24. In the last case cited this court said: “This species of testimony should always be received with the greatest caution, and too much care cannot be observed by the court in scrutinizing the primary facts upon which its admissibility is grounded. No person is entirely exempt from a disposition to excuse and justify his own conduct, or to inflict vengeance upon one at whose hands he has suffered a grievous wrong; and in the eye of the law this proclivity is presumed, in cases like the present, to be overcomo and silenced only by the presenco of almost immediate death. An undoubting belief existing in the mind of the declarant, at the time the declarations are made, that the finger of death is upon him, is indispensable to that sanction which the law exacts; and if it shall appear in any mode that there was a hope of recovery, however faint it may have been, still lingering in his breast, that sanction is not afforded, and his statement cannot be received." California Sup. Ct., June 7, 1880. People of California v. Hodgdon. Opinion by Ross, J.

PLEADING – ATTEMPT TO STEAL. In an indictment for an attempt to steal, it is not necessary to specify the particular articles intended to be stolen. In Whart. on Cr. Law, SS 292 and 1282, it is said that in indictments for attempts to commit crimes in themselves indictable, it is not necessary to observe the same particularity as is required in indictments for the commission of the offense itself. And as illustrative of that position, he says an indictment for an assault with an intent to steal from the pocket is good without stating the goods or moneys intended to be stolen. In accordance with this statement of the rule, it has been decided in various States that the offense of attempts to commit larceny is complete by an intention to steal and an act done in pursuance thereof apparently effi


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.), SS 1400, 1401, 1402; 3 Wharton's Crim Law. intended to be taken, as such fact is extrinsic and not (7th ed.), S 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. McDonald, 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 order, the better opinion seems to have Ulley. Opinion by Dillard, J.

been that his power is limited to the infliction of the

fine, and that he cannot lawfully refuse to permit the PLEADING - INFANTICIDE — SEX OF CHILD NOT RE

examination of the witness. Citing Cook v. NetherQUIRED TO BE STATED. — In an indictment for infanti

cote, 6 C. & P. 471; Rex v. Colley, 1 Mood. & Mal. 3:29; cide, although convenient and advisable when it can

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.

used to be formerly supposed that it was in the dis

The law requires that an indictment 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 the whom the offense was committed, as to enable the

judges that the judge has no right to exclude the witprisoner to understand who the party is, and upon

ness; he may commit him for contempt, but he must what charge he is called upon to answer, as to prevent

be examined; and it is then matter of remark as to the prisoner from being put in jeopardy a second time

the value of his testimony, that he has willfully disfor the same offense, and as will authorize the court to

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

v. Commonwealth of Virginia. Opinion by Burks, J. and safety of the accused to have the sex alleged ? In 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: sufficient 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 servico 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 Jorrisey. 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 enıployer 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 witness, and he is objected engaged in his work. to by the prisoner, on the ground alone of his remain- “2. E.cceptions 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. Whero an compensation or remedy against the employer in any order directing the exclusion of witnesses from the of tho 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 menoflicer 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) Uuder 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 with respect to Ireland, mean the Civil Bill Court.' mentioned; provided that where a rule or by-law has In Scotland any action under this act may be removed been approved or has been accepted as a proper rule or to the Court of Session at the instance of either party, by-law by one of her majesty's principal secretaries of in the manner provided by, and subject to the condiState or by the board of trade or any other depart- tions prescribed by, section 7 of the Sheriff Courts ment of the government, under or by virtue of any (Scotland) act, 1877. In Scotland the sheriff may conact of Parliament, it shall not be deemed for tho pur- join actions arising out of the same occurrence or poses of this act to be an improper or defective rule or cause of action, though at the instance of different by-law. (3) In any case where the workman knew of

parties and in respect of different injuries. the defect or negligence which caused his injury, and 7. Mode of serving notice of injury.-Notice in refailed within a reasonable time to give, or cause to be spect of an injury under this act shall give the name given, information thereof to the employer or some and address of the person injured, and shall state in person superior to himself in the service of the en- ordinary language the cause of the injury and the date ployer, unless he was aware that the employer or such at which it was sustained, and shall be served on the superior already knew of the said defect or negligence. employer, or if there is more than one employer, upon

*3. Limit of sum recoverable as compensation. — The one of such employers. The notice may be served by amount of compensation recoverablo under this act delivering the same to or at the residence or place of shall not exceed such sum as may be found to be business of tho person on whom it is to be served. The equivalent to the estimated earnings, during the three notice may also be served by post by a prepaid letter years preceding the injury of a person in the same addressed to the person on whom it is to be served at grade employed during those years in the like em- his last known place of residence or place of business; ployment and in the district in which the workman and if served by post, shall be deemed to have been is employed at the time of the injury.

served at the time when a letter containing the same "4. Limit of time for recovery of compensation.-- An would be delivered in the ordinary course of post; action for the recovery under this act of compensation and in proving the service of such notice, it shall be for an injury shall not be maintainable unless notice sufficient to prove that the notice was properly adthat injury has been sustained is given within six dressed and put into the post. Where the employer is a weeks, and the action is commenced within six months body of persons corporate or unincorporate,the notice from the occurrenco of the accident causing the injury, shall be served by delivering the same at or by sending or in case of death, within six months from the time it by post in a prepaid letter addressed to the office, of death; provided always that in case of death the or if there be more than one office, any one of the want of such notice shall be no bar to the maintenance offices of such body. A notice under this section shall of such action if the judge shall be of opinion that not be deemed invalid by reason of any defect or inacthere was reasonable excuse for such want of notice. curacy therein, unless the judge who tries the action

*5. Money payable under penally to be deducted from arising from the injury mentioned in the notice shall compensation under act.- There shall be deducted be of opinion that the defendant in the action is prejufrom any compensation awarded to any workman, or diced in his defense by such defect or inaccuracy, and representatives of a workman, or persons claiming by, that the defect or inaccuracy was for the purpose of under, or through a workman in respect of any cause misleading. of action arising under this act, any penalty or part of “8. Definitions.-For the purpose of this act, unless a penalty which may have been paid in pursuance of the context otherwise requires, the expression 'person auy other act of Parliament to such workman, repre- who has superintendence intrusted to him’ means a sentatives, or persons in respect of the same cause of person whose sole or principal duty is that of superinaction, and where an action has been brought under tendence and who is not ordinarily engaged in manual this act by any workman, or the representatives of labor; the expression employer' includes a body of any workman, or any persons claiming by, under, or persons corporate or unincorporate; the expression through such workman for compensation in respect of 'workman' means a railway servant and any person to auy cause of action arising under this act, and pay- whom the Employers and Workmen Act, 1875, applies. ment has not previously been made of any penalty or “9. Commencement of act. - This act shall not como part of a penalty under any other act of Parliament in into operation until the first day of January, 1881, respect of tho same cause of action, such workman, which date is in this act referred to as the commencerepresentatives, or person shall not be entitled there- ment of this act. after to receive any penalty or part of a penalty under “10. Short tille.- This act may be cited as the Emany other act of Parliament in respect of the same ployers' Liability Act, 1880." cause of action.

*6. Trial of actions.-1. Every action for recovery of compensation under this act shall be brought in a

CORRESPONDENCE. 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

MORE MIDSUMMER." an action commenced in a county court may by law be removed. 2. Upou the trial of any such action in a

Editor of the Albany Law Journal: county court before the judge without a jury one or It may seem presumptuous for the writer to suggest more assessors may be appointed for the purpose of that “ Midsummer's" problem has not been correctly ascertaining the amount of compensation. 3. For tho solved by any of your correspondents; especially as purpose of regulating the conditions and mode of ap- some of them are supported by tho authority of very pointment and remuneration of such assessors, and respectable courts. He is, however, prepared to take all matters of procedure relating to their duties, and that responsibility. also for the purpose of consolidating any actions un- The fallacy of tho reasoning of “E. M. S.," “Subder this act in a county court, and otherwise prevent- scriber" of Port Richmond, and “Sol. Kohn," must ing multiplicity of such actions, rules and regulations bo apparent when it is seen that it would serve to leave may be made, varied, and repealed from time to time either A, B or C “out in the cold," as follows: in the same manner as rules and regulations for regu- “E. M. S.” starts with the proposition that C is to lating the practice and procedure in other actions in be paid in full, except as affected by B's mortgage; for county courts. 'County Court'sball, with respect to the purposes of this argument we will number this Scotland, mean the 'Sheriff's Court,' and shall, proposition “1." The same reasoning which satisfies

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