Gambar halaman

pass, and therefore all that was said about other reme- ground for refusing redress to plaintiff, and that she dies was obiter. But it was distinctly intimated that was entitled to judgment on the finding. the difficulty did not arise except concerning property Judgment must be reversed with costs and judgment actually or coustructively in the possession of the entered for plaintiff with nominal damages of six court, and whilo litigation was still pending. Property cents. under mesne process is in some cases the only basis of Cooley, J., dissented. jurisdiction, and it is often subject to disposition for various purposes pendente lite, so that it may not only be discharged from seizure but may sometimes be dealt

NEW YORK COURT OF APPEALS ABSTRACT. with otherwise. This creates at least a colorable, if not a real distinction, and may give some force to the

ARBITRATION-REFUSAL 07 ARBITRATORS TO HEAR claim that it is in the custody of the court, although

TESTIMONY - MISCONDUCT VITIATING AWARD - JUDGwe are not prepared to say the distinction is usually in

MENT OF ARBITRATORS AS TO THEIR POWERS REVIEWfact very important. The case of Buck v. Colbath is ABLE — CONSTRUCTION OF SUBMISSION. -- (1) In an arsiguificant in confining the doctrine of conflict to in- bitration between plaintiff and defendant, plaintiff terference with the action of courts, and in holding offered to produce certain witnesses named, in order that a marshal who levies on the property of a stranger

to reconcile contradictory statements made by plaintis in no sense acting under process unless the writ iff and defendant, but was met by a refusal on the directs the seizure of the specific property taken. The

part of the arbitrators to receivo any testimony except distinction between writs against specific property and

the statements of the parties, they construing tho those against undescribed property of named persons submission to limit their power to the act of passing is made the turning point. And it was said emphati- upon the statements of the parties. Plaintiff did cally that the plaintiff in error is mistaken when he

not offer to show what the witnesses offered would tesasserts that the suit in the Federal court drew to it the tify to. Held, that if the arbitrators were erroneous question of title to the property, and that the suit in in the construction of the submission, their refusal to the State court against the marshal could not with- receive the testimony offered was such misconduct as draw that issue from the former court. No such issue would vitiate their award and that plaintiff had not was before it, or was likely to come before it, in the forfeited his rights by a failure to show what the prousual course of proceeding in such a suit.

posed witnesses would testify to. The refusal of an In the subsequent case of Mckee v. Rains, 10 Wall.

arbitrator to examino witnesses is sufficient miscon22, it was held that a trespass suit by a third person

duct on his part to induce the court to set aside his against a marshal could not be removed into a court of

award, though he may think he has sufficient evidence the United States, because his levy could not be re

without them. Phipps v. Ingram, 3 Dowling, 669. In garded as made under any authority of the United Van Cortlandt v. Underhill, 17 Johns. 405, it was held States. This is certainly equivalent to holding that

that if the arbitrators refused to hear evidence perti. he is no better off than if he had no process, and it is

nent and material, it will vitiate the award. In Fredi. difficult to conceivo how it leaves any room for hold

car v. Guardian Ins. Co., 62 N. Y. 392, it is said that ing that a disturbauce of his wrongful possession is

if an arbitrator refuses to hear competent evidence on an interference with the court.

the merits, his award will be set aside. (2) The decisIt would not be, we suppose, competent for Congress ion of arbitrators as to their powers was not concluor any State, even by positive enactment, to deprivo

sive. No such question was submitted to them. It is the owners of property of the right to vindicato their

for the court to judge whether arbitrators have extitle by legal process in a judicial trial. There is ceeded their powers or refused to exercise them. The no legislation which provides any method whereby

general rule that their decisions are not reviewable on Mrs. Heyman could secure her rights in the United

the mere ground that they are erroneous, is applicable States court against Covell. Unless she has such a

only to their decisions on matters submitted to them. remedy in duo form of law her only resort must be to

The submission is the foundation of their jurisdiction, the State courts, and this is recognized in McKee v.

and they are not the exclusive judges of their own Rains as well as in Slocum v. Mayburry, 2 Wheat. 2.

powers. (3) A submission contained this: “The arbiIt was indeed held in Freeman v. IIove, that equity

tration shall be conducted and decided upon the prinwould relievo in that particular instance, and was said

ciple of fair and honorablo dealing between man and that it would in any case of wrongful levy on a third

man." Held, not to justify tho arbitrators in refusing person's goods. If this wero so, the case would not be

to hear testimony other than the statements of tho difficult of redress. But it has since been held that parties. Judgment reversed. Ilalstead, appellant, v. there is no such remedy. In Van Norden v. Norman,

Seaman. Opinion by Rapallo, J. 99 U. S. 378, a bill in equity was filed in the Circuit [Decided Sept. 21, 1880. ] Court of the United States for tho district of Louisiana INSURANCE-LIFE POLICY — INSOLVENT COMPANY to secure protection and restoration against a marshal's NON-PAYMENT OF PREMIUMS. – In this case appellants levy under au execution from the same court, and the represented claims against an insolvent insurance comCircuit Court made such a decree. But on appeal to pany in the hands of a receiver, upon policies which the United States Supreme Court it was held that re- wero runuing at the date of the appointment of tho plevin was the proper remedy to regain possession, or receiver, aud upon which premiums had been paid to some similar proceeding in the nature of a common- some time subsequent to such date. The persons inlaw replevin, and that equity had no jurisdiction. The sured by such policies died subsequent not only to the decree was reversed for want of jurisdiction, without appointment of tho receiver, but subsequent also to prejudice to an action at law or other redress.

the time to which premiums had been paid. It apIf there is no reinedy by bill in equity then it follows peared that the receiver had given express notice that that a common-law action is the proper redress, and he would receive no more premiums. Held, that these such action can only be brought in a court of the claims were within the principle laid down iv People United States where the parties are such as to confer v. Security Life Ins. Co., 78 N. Y. 129. The policies jurisdiction; and in such cases the statutes have made were in full force at tho time when the insured persons the jurisdiction concurrent with power of removal died. The further payments of premiums were exunder certain circumstances. In the present case it cused by the failure of the company, as well as by the does not appear that suit could have been brought any- express notice of the receiver that he would receive no whero but in tho State court, and the case has gone to more premiums. For the purpose of enforcement, the judgment in the usual course. We think there was no policies were just as effectual as if the premiums had been actually paid. They were not, properly speaking, a portion of its assets in pursuance of law for the purdeath claims, but claims for damages upon policies pose of securing a certain class of its creditors. (3) In running at tho appointment of the receiver; and the computing the value of annuity bonds issued by the rules laid down in the case cited furnish an accurato insurance company, the Northampton table with interand just basis for the computation of such damages. est at six per cent (People v. Security Life Ins. Co., 78 Order affirmed. Matter of Attorney-General v. Guard- N. Y. 114) should not necessarily be followed. The ian Mutual Life Insurance Co. Opinion by Earl, J. true rule to measure the value of such annuities is to [Decided October 15, 1880.]

take such a sum as will, for the remainder of the life

of the annuitant, purchase an annuity for the same INSURANCE – LIFE POLICY INSOLVENT COMPANY - amount. In the case of running policies in insolvent RIGHT OF RECEIVER TO APPEAR IN PROCEEDING TO companies, the court has held that the amount of damDETERMINE PRIORITIES - CONSTITUTIONAL LAW - OB

age to a policy-holder is the value of the policy deLIGATION OF CONTRACT -- REGISTERED POLICIES - AN- stroyed, and that such value is the sum, which, together NUITIES — COMPUTATION OF VALUE – FORFEITURES — with the same future premiums, will procure another UNCONSCIONABLE AGREEMENT – USURY.-(1) In a pro- policy in a solvent company. So the value of an anceeding solely to determine the rights of several claim- nuity bond binding the company to make certain anants to the funds of an insolvent insurance company nual payments during life is such a sum as will in the hands of a receiver, held that the receiver had a purchase a similar bond in another solvent company right to appear and file exceptions to the report of the for the remainder of life. Nothing short of that will referee. The receiver represents not only the company, give the party whose bond is destroyed full indemnity. but he stands as a trustee of its funds for all its credit- It would do exact justice between an annuitant and ors. He is supposed to be impartial between the the company to compute the value of his annuity by the several claimants upon the funds; and yet he may in- same table which was used when he purchased the annutervene to see that no injustico is done to any one and ity. It would not be just to take a basis of six per cent that the funds are properly protected, disposed of and interest, when a basis of four or four and a half per cent, administered. Bookes v. Hathorn, 78 N. Y. 222. In requiring a larger gross sum, was used in the purchase. such cases the claimants do not all usually appear (4) A provision in paid-up policies issued in lieu of before the referee by counsel. They may choose to other policies -- upon which notes had been given for rely upon the protection the receiver as their trustee

portions of the annual premiums, that in case the inwill give them, and that he may afford them such pro- terest should not be paid as agreed upon any note tection he may appear before the referee, file exceptions thus given, the policy should become void and the to his report and appeal from any order or decree made

company not be liable for any part of the sum assured, at any stage of the proceedings affecting the funds in held not to be oppressive, unconscionable or usurious. his charge. (2) A life insurance company commenced Such contracts are no more unconscionable or oppressbusiness in 1862 and continued business until 1877. For ive than subscriptions to stock upon condition tbat several years previous to the last date 'it issued what the stock sball be forfeited for non-payment of calls. were named registered policies under Laws 1866, chap. In such case a large amount of stock inay be forfeited 576, 1867, chap. 508, and 1869, chap. 902, which policies for non-payment of the last call, and that a small one, were, under said statutes, entitled to priority of pay- and yet a court of equity would not relieve against the ment over other policies out of a fund created by pre- forfeiture Sparks v. Liverpool Water Works, 13 Ves. miums upon such registered policies. Held, that the 429; Prendergast v. Turnton, 1 Y. & C. (N. R.) 98, 110 statutes named were not unconstitutional as impairing to 112. See, also, Audrews v. St. Louis Hope Ins. Co., the contract between the ordinary policy-holders and 5 Bigelow, 5:27; Martin v. Ætna Life Ins. Co., id. 514; the company. It is clear that the obligations of the Patchen v. Phønix Mut. Life Ins. Co., 44 Vt. 481; company were in vo way interfered with or impaired. Knickerbocker Life Ins. Co. v. Vashti, 8 Ins. L. J. 349; The company remained liable to discbarge all its obli- Nettleton v. St. Louis Hope Ins. Co., 6 id. 426; Smith gations just as it made them, and precisely according v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch, 742. There to their terms. The holders of non-registered policies was no usury because in addition to the seven per had no lien upon the property of this company at the cent upon the notes, the forfeiture was also exacted in time of the passage of these acts, and they were there

case of non-payment of the interest. The policy was fore deprived of no lien. Laws abolishing imprisou- not affected by any usury, because it was not a conment for debt and distress for rent, and increasing tho tract for the loan or for borrowing of any money. amount of property exempt from execution, have been Even the note would not be usurious if it contained a held not to impair the obligation of contracts previously stipulation that the policy should be forfeited by deexisting. Laws could be passed giving servants a prefer- fault in payment of the interest, because the maker of ence of payment in all cases out of the estates of their

the note could avoid the forfeiture by payment of the employers without impairing the obligation of other interest. Burtow's case, 5 Co. 69. In 2 Pars. on Cont. contracts entered into with such employees. So the 393, it is said: “An agreement to pay more than intef. Legislature could, for reasons of public policy and jus. est, by way of penalty for not paying the debt, is not tice, give classes of creditors preference over other usurious, because the debtor may relieve himself by classes, so long as creditors not preferred were left paying the debt with lawful interest." (5) Oue P. paid with substantial remedies. Here the holders of regis- 100,000 francs for an annuity of 18,388 franes, payable tered policies were given a preference of payment upon each 224 of December, during life. Anuuities were a fund substantially created with money contributed paid in 1874, 1875 and 1876. The receiver was appointed by them. The special fund created for their benefit in March, 1877, and P. died in November, 1878. Held, could never, in the ordinary management of a company, that the annuity was not to be valued in favor of P.'s be greater than the money contributed by such policy- representative, at what the expectancy was worth holders, and it seems absurd to say that a provision when the receiver was appointed, but at what the bond that they should havo payment out of such fund in was shown to be actually worth by the death of P. preference to other policy-holders violated the obliga- The failure of the company did not increase the amount tion of any contract within the meaning of the Con- of the damages or the value of the bond. Order modistitution. A debtor does not violate the obligation of fied and affirmed. Matter of Attorney-General v. North his contracts with other creditors by pledging to a America Life Insurance Co. Opinion by Earl, J. class of his creditors a portion or all of his property [Decided Sept. 28, 1880.] for the purpose of securing their claims, and the same MASTER AND SERVANT-ON WHAT LIABILITY OF MASmust be true of an insurance company which sets apart TER FOR INJURY TO SERVANT DEPENDS — SUPERISTENDENT PERFORMING DUTY OF OPERATIVE FELLOW- duced by the trial court is improbable or more unlikely SERVANT. — The liability of a master to his servant for to be true than the opposite one. (3) In an action injuries sustained while in his employ, by the wrongful against the representative of an estate for services renor negligent act of another employee of the same mas- dered testator by plaintiff's wife, after her marriage, it ter, does not depend upon the doctrine of respondeat was claimed by defendant that certain legacies to such superior. If the employee whose negligence causes wife and her daughter, which were for a less amount the injury is a fellow-servant of the one injured, the than the value of the services, were in payment of such doctrine does not apply. Conway v. Belfast, etc., Ry. services under an agreement between the testator and Co., Irish R., 11 C. L. 353. A servant assumes all risk the wife. The legacies were given “after payment of of injuries incident to and occurring in the course of debts.” Defendant offered to show by the scrivener his employment, except such as are the result of the who drew the will, that at the time it was drawn tesact of the master himself or of a breach by the master tator stated that the legacies were given in payment of of some term, either express or implied, of the contract services rendered by the wife, in compliance with a of service, or of the duty of the master to his servants. promise. Held, that the testimony was inadmissible. But for the mere negligence of one employee the mas- The general rule is, that the declarations of a testator ter is not responsible to another engaged in the same before, contemporaneously with, or after the making general service. The liability of the master does not of a will, are inadmissible to affect its construction. 1 depend upon the grade or rank of the employee whose Redf. on Wills, 538. In Mann v. Executors of Mann, 1 negligence causes the injury. A superintendent of a Johns. Ch. 231, Chancellor Kent said that the rule was factory, although having power to employ men or rep- well settled that parol evidence cannot be admitted to resent the master in other respects, is, in the manage- supply or contradict, enlarge or vary the words of a will, ment of the machinery, a fellow-servant of the other nor to explain the intention of a testator, except in operatives. Albro v. Agawam Canal Co., 6 Cush. 75; two cases, viz., where there is a latent ambiguity arisWood's Mast. & Servt., $ 438; also SS 431, 436, 437. On ing dehors the will as to the person or subject meant to the samo principle, however low the grade or rank of be described, or to rebut a resulting trust. A legacy the employee, the master is liable for injuries caused implies a bounty, and not a payment, and to admit exby him to another servant if they result from the trinsic evidence to contradict this would be to contraomission of some duty of the master which he has con- dict by oral evidence the legal effect of a written infided to such inferior employee. Flike case, 53 N. Y. strument and to violate the statute of wills, for then, 549. Tho liability of the master depends upon the as Lord Chancellor Talbot said, iu Fowler v. Fowler, 3 character of the act in the performance of which the P. Wms. 353, “the witness and not the testator would injury arises, without regard to the rank of the em- make the will." See, however, as to presumptions, ployee performing it. If it is one pertaining to the Chancy's case, 1 P. Wms. 408; Hooley v. Hutton, 1 duty the master owes to his servants, he is responsible Bro, C. C. 390; Hurst v. Beach, 5 Madd. 351; Trimmer to them for the manner of its performance. The con- v. Bayne, 7 Ves. 508; Osborne v. Duke of Leeds, 5 id. verse of this necessarily follows. If the act is one 369; Hall v. Hill, 1 Dr. & War. 94; 1 Redf. on Wills, which pertains only to the duty of an operative, the 646. In this case no presumption arose that the legaemployee performing it is a mero servant, and the mas- cies to tho wifo and daughter were intended as a satister, although liable to strangers, is not liable to a faction of the debt owing by testator to the plaintiff, fellow-servaut for its improper performance. The for several reasons: first, the legacies were given “after doctrine in Mullan v. Phila. & S. M. S. Co. 21 Am. Rep. payment of debts" (Boughton v. Fliut, 74 N. Y. 476); 2, sustains this proposition. Accordingly, where B. who second, they were of less amount than the debt (Cranrepresented the employer as financial agent or superin- mer's case, 2 Salk. 508; Graham v. Graham, 1 Ves. tendent, overseer or manager, and stood in his place, Sen. 263; Atkinson v. Webb, 2 Vern. 478); third, the held, that he did so only in respect to these duties, debt was unliquidated (Williams v. Crary, 5 Cow. 368; which the employer had confided to him; as to other S. C., 4 Wend. 449); and fourth, the legacies were not acts about the employer's place, he was a mere em- given to the creditor, but to a third person (Clark v. ployee. And where he turned on steam he performed Bogardus, 12 Wend. 67). See, also, Eaton v. Benton, 2 the act of a mere operative, and the employer would Hill, 576; Phillips v. McCombs, 53 N. Y. 494. Judgnot be liable to a fellow-employee for an injury caused ment affirmed. Reynolds v. Robinson et al., appellants. by that act. Judgment reversed. Crispin v. Babbitt, Opinion by Andrews, J. appellant. Opinion by Rapallo, J.; Folger, C. J., An- [Decided Sept. 21, 1880.] drews and Miller, JJ., concurred; Earl, Danforth and Finch, JJ., dissented. [Decided Sept. 21, 1880.]



SEPTEMBER, 1880. DENCE PAROL, NOT ADMISSIBLE TO SHOW TESTATOR'S INTENTION AS TO LEGACY - PRESUMPTIONS AS TO BANK - RIGHT TO APPROPRIATE SECURITIES LEGACIES.- (1) The doctrine in Reynolds v. Robinson, THIRD PERSON DEPOSITED BY DEBTOR AS HIS OWN.64 N. Y. 589, that where an agreement is made be- Plaintiff placed a promissory note, owned by him, made tween two parties that compensation for services ren- and indorsed by third persons, in the hands of J. for dered by one of them to the other shall be made by a collection. J. deposited the same with the defendant provision in the will of the latter, and a provision is bank where he did business, for collection, giving the made sufficient only to compensate in part for the ser- bank no notice as to his relation to the note. The vices, the party rendering them has, after the death of bank collected the note and applied the proceeds to the the other, a cause of action against his representa- account of J., against whom it held an uurecovered tives for the balance remaining due over and above indebtedness. Thereafter J. became bankrupt and the testamentary provision, reaffirmed. (2) This court, the defendant settled with his assignee in bankruptcy. in reviewing the determination of a trial court upon As soon as plaintiff learned of the collection of the the facts, is confined to the inquiry whether there is note and the disposition of its proceeds, about a year any evidence to sustain it. It does not pass upon the after such settlement he demanded such proceeds weight or preponderance of evidence, nor in a case from defendant. Held, that plaintiff was not entitled where opposing inferences may be drawn can it review to such proceeds. It has long been settled that a a finding, because in its judgment the inference de- banker who has advanced money to another has a gen


plaintiff and occupying the same position with reference to other parts of the device. Held, under a statute protecting a person who uses any peculiar name, letters, marks, device or figures upon an article manufactured or sold by him, to designate it as an article manufactured by him, that defendant's stamp was a violation of plaintiff's trade-mark entitling plaintiff to protection. Lawrence Hosiery Manufacturing Co. v. Lowell Hosiery Mills. Opinion by Colt, J.


OCTOBER, 1880.


eral lien on all securities of the latter which are in his hands for the amount of his general balance, unless such securities were delirered to him under a particular agreement limiting their application. Bank of Metropolis v. New England Bank, 1 How. 234, and 6 id. 212; Sweeney v. Easter, 1 Wall. 166. One who takes a negotiable promissory note before maturity as security for a pre-existing debt is, by the law of this State, a holder for value. Culver v. Benedict, 13 Gray, 11. Such being the law, the defendant received the note, undertook its collection and applied the proceeds; and the unknown owner of it, who gave it to J. with all the appearance of title, cannot be permitted to defeat the right of the defendant, who, long before it had knowledge of the claim, had applied the same to the payment of J.'s debt and settled with his assignee in bankruptcy. See Locke v. Lewis, 124 Mass. 1. Wood v. Boylston National Bank. Opinion by Colt, J.

NEGLIGENCE — DANGEROUS ARTICLE-GAS-CONTRIBUTORY NEGLIGENCE-AFFIRMATIVE PROOF WANT OF.-In an action for injury to plaintiff, a child of five years, from the inhalation of gas escaping from defendants' pipes, it appeared that plaintiff and his mother slept in a room adjoining a court in which the pipes from a crack in which the gas escaped were laid ; that the mother was found dead and plaintiff insensible; that the accident took place in the night; that there were no gas fixtures in the room occupied by plaintiff, and there was no evidence that the mother had notice of the escaping gas or was conscious of its presence in time to take precautions against its deleterious effect; that on the day before the accident there was no smell of gas in the court; that the mother was a sober and prudent woman. Held, that there was evidence sufficient to sustain a verdict in favor of plaintiff for injury by the escaping gas. The burden was upon the plaintiff to show that he and his mother were in the exercise of due care in respect to the occur. rence from which the injury arose. But this, as was said in Mayo v. Boston & Maine Railroad, 104 Mass. 140, although in form a proposition to be established affirmatively, need not be proved by affirmative testimony addressed directly to its support. It may be shown by evidence which excludes fault. And in the case at bar, there was nothing which excluded the inference that both mother and child on that night went to bed and to sleep in the usual manner with nothing to indicate that there was unusual exposure to injury, and that they were suffocated in their sleep by the gas which escaped from the defendant's pipes. If this were so, they were clearly in the exercise of such care as prudent people ordinarily use under circumstances of similar exposure to injury from hidden and unsuspected causes. (raig v. New York, etc., Railroad, 118 Mass. 437; Commonwealth v. Boston & Lowell Railroad, 1:26 id. 61; Hinckley v. Cape Cod Railroad, 120 id. 257. And there was sufficient evidence of defendant's negligence to make it responsible. Smith v. Boston Gas-Light Co. Opinion by Colt, J.

TRADE-MARK – ARABIC NUMERALS MAY BE.-Plaintiff used as a trade-mark for many years upon hosiery the figure of an eagle surmounting a wreath formed of the branches of the cotton plant. The wreath inclosed the words "Lawrence Manufacturing Company" printed in a circle, having underneath it the word “trade-mark," and, below all, the figures “523," printed in large hollow block numerals. Before this, the plaintiff had used an eagle and scroll in combination with other numerals as a trade mark upon the same grade of hosiery. Defendant stamped hosiery made by it with a device consisting of an eagle surmounting a double circle or garter, on which were printed the words “extra finish iron frame beneath the figures "523," printed in large hollow block numerals of the size and description used by the

CONSTITUTIONAL LAW – SALARY OF JUDICIAL OFFICER - RIGHT OF LEGISLATURE TO CHANGE TERM AND COMPENSATION.-An act of the Legislature creating a county court of limited civil and criminal jurisdiction, and fixing tho salary of the judge, payable out of the county treasury, may be amended so as to change the salary of in judge of such court during tho term for which he has been elected; and the constitutional provision which forbids the “compensation of any publio officer" to be " increased or diminished during his term of office." Constitution, art. 4, $ 26, is inapplicable to such a case. It is well settled that, in the absence of any constitutional prohibitions or affirmative provisions fixing the term of office of any officer, or his compensation, the Legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected. The authori. ties fully establish this point. Butler v. Pennsylvania, 10 How. (U. S.) 402; Co. Com'rs v. Jones, 18 Minn. 199; Taft v. Adams, 3 Gray, 126; Connor v. New York, 5 N. Y. 285; People v. Barnard, 27 Cal. 470; Iu re Bulger, 45 id. 553; Cooley on Const. Lim. 276 and note; Supervisors v. Hackett, 21 Wis. 613; State v. Douglass, 26 id. 428; Hall v. State, 38 id. 89. Slate ex rel. Martin v. Kalb. Opinion by Taylor, J.

CONTRACT — DURESS - ILLEGAL CONSIDERATION COMPOUNDING FELONY — RESCINDING OF CONTRACT.By duress of imprisonment on a criminal charge, with threats of future prosecution if a certaiu sum of money be not paid him, and promise to dismiss the prosecution on such payment being made, A. induces B. to procure for him negotiable promissory notes for said sum from X., a friend of B., and then causes the prosecution to be dismissed and B. discharged. B. thereupon gives X. his (B.'s) own notes, secured by mortgage, for the same amount, and X. pays his notes to A. when due. B. is not guilty of said offense. The complaint against him fails to charge him with any offense, the warrant on which he was arrested is void on its face, and both complaint and warrant are colorable only. IIeld, (1) that even if a felony had been charged and committed, the act of X., in giving such notes, would not have rendered him particeps criminis in the attempt to compound the felony ; (2) that even if the original transactions were illegal as to all the parties yet after it has been fully performed, and A. has received the avails of it, he might be compelled by B. to account, on the ground of its illegal character; (3) that it is immaterial that X. paid his notes after the duress had ceased, such payment not having been induced by any act of B. after the duress had ceased; (4) that if B., after his release from duress, might by suit baro restrained payment of the money by X. to A., and rescinded the whole contract, yet his failure to do so is no defense to his action against A. for the amount. Kiewert v. Rindskopf, 46 Wis. 481; Armstrong v. Toler, 11 Wheat. 258; McBlair v. Gibbes, 17 How. 236; Brooks v. Martin, 2 Wall. 70; Planters Bank v. Union Bank, 16 id. 483; Buehr v. Wolf, 59 III. 470; Deanville v. Merrick, 25 Wis. 688. Heckman v. Swartz, Opinion by Orton, J.

" and

SALE -- OR RETURN - EVIDENCE OF SALE.- Where | 659. In Young Stone Dressing Co. v. Wardens St. A takes to his own house a horse of B, intending James Church, 61 Barb. 489, the assignment and lien to purchase it if satisfactory, with an understand- were sustained, but not on account of any claim for a ing that he is to use it by way of trial until a specified | lien filed by the assignee, for the statement of the case time, and then, if not satisfied, bring it back to B, or shows that the assiguee, upou the trial, discovered tho if too busy for that, to let it stand unused until B lien by him filed, as a ground of claim in the action. comes for it, and A continues to use the horse after In Iaege v. Bossieux, 15 Gratt. 83, the contractor the time so fixed, and then refuses to buy and offers to assigned his contract before the completion of the work, return it, this is evidence for the jury on the question and it was held this assignment entitled the assignee whether A, at the time so fixed, had determined to to the contractor's lien. No case has been found where retain the horse, and is therefore liable for the price, it is held that the assignment of an installment due but is not conclusive evidence. In any view of the case before the completion of the work carried with it the evidence proved what is denominated “sale on to the assignee the right to file a claim for and to trial” or “approval,” or a “sale or return.” In such enforce a lien. “The statute does not contemplate that cases the sale is not consummated, and the title re- a contractor or sub-contractor may, from time to time, mains in the vendor after the delivery and until the as the work progresses, file successive liens for work approval is signified by the vendee, or until he so con- and materials performed and furnished under an entire ducts himself with regard to the property that the law contract, but he is entitled to acquire only one lien, will presume that he has approved of the property and and for this purpose his claim must be filed within tho is satisfied to keep it as his on the terms agreed upon. time specified in the statute after the completion of See Benjamin on Sales, $ 595; Mowbray v. Cady, 40 the work." Cox v. W. P. R. Co. 44 Cal. 18. See, also, Iowa, 604; Hunt v. Wyman, 100 Mass. 198. Kahn v. Phillips Mech. Liens, § 324. Merchant v. Ottumwa Klabunde. Opinion by Taylor, J.

Water Power Co. Opinion by Day, J.


DOES NOT DISCHARGE.-A corporation purchased real 10WA SUPREME COURT ABSTRACT. estate and as a part of the purchase money executed its

promissory notes which were secured by a mortgage OCTOBER, 1880.

on such real estate. Thereafter the holder of the notes

surrendered them and took other evidences of indebtCONFLICT OF LAW - UTAH DIVORCE WITHOUT JURIS- edness in their place, the surrendered notes being DICTION INVALID – PAROL EVIDENCE SHOWING WANT marked paid. The mortgage was not discharged. Held, OF JURISDICTION.- In an indictment for adultery the that the mortgage remained a valid security as defendant set up in bar a Utah divorce. The prosecu- between the debtor and creditor and as against a tion offered to prove by parol facts showing that the subsequent mortgage given to one who had been, while Utah court had no jurisdiction. The decree of the the change of evidences of indebtedness took place, a Utah court did not on its face show that it had juris- director in the corporation, and who had sufficient diction. Held, that the evidence was competent and knowledge of the facts to put him upon inquiry. if the facts were proved the divorce was no defense. Bolles v. Chauncey, 8 Conn. 389; Funk v. Branch, 16 It has been held, in an action on a judgment or decree id. 259; Brinkerhoff v. Lansing, 4 Johns, 65; Tobey v. rendered in another State, that it was competent to Barber, 5 id. 68; Watkins v. Hill, 8 Pick, 522; Pomeestablish by parol that the court had no jurisdiction. roy v. Rice, 16 id. 22; Cole v. Sackett, 1 Hill, 516; PutLowe v. Lowe, 40 lowa, 220; Webster v. Hunter, 50 id. nam v. Lewis, 8 Johns. 389; Johnson v. Weed, 9 id. 310; 215. As the evidence offered to be introduced by the Flower v. Ellwood, 66 Ill. 438; 2 Am. Lead. Cas. 245; State would have tended to show the Utah court did Paine v. Voorhis, 25 Wis. 5:26; 2 Jones Mortg. § 924; not have jurisdiction, the district court erred in reject- Sloan v. Rice, 41 Iowa, 46; Farwell v. Grier, 38 Iowa, ing it. If there was no jurisdiction, the decree was 83; Port v. Robbins, 35 id. 208; Farwell v. Salspaugh, absolutely void and the defendant guilty, if the allega. 32 id. 582; Packard v. Kingman, 11 id. 219. Heivly v. tions in the indictment were established to the satis- Mattison. Opinion by Day, J. faction of the jury. Whitcomb v. Whitcomb, 46 id. 437; State v. Whitcomb, % N. W. Rep. 970. It was held in People v. Smith, 13 Hum. 414; Hood v. State, MINNESOTA SUPREME COURT ABSTRACT. 56 Ind. 263; and Letowich v. Letowich, 19 Kan. 451, that a Utah divorce, obtained without jurisdiction, or

OCTOBER, 1880. where neither party was a resident of the territory, was absolutely void. State of lowa v. Fleuk. Opinion CONFLICT OF LAW - FEDERAL PROVISION AS by Seevers, J.

STANDING OF STATE JUDGMENTS -WANT OF JURISMECHANICS' LIEN – INCHOATE RIGHT TO, NOT AS- DICTION-DIVORCE. - The requirement of the Federal SIGNABLE - ASSIGNMENT OF INSTALLMENT DUE ON Constitution, that “full faith and credit shall be given CONTRACT.-One who performs work on a contract, for in each State to tho records and judicial proceedings which he is entitled to a mechanics' lien, cannot before of every other State,” has no application to decrees and he has completed his work assign an installment due judgments in actions wherein the court has acquired for such work so as to transfer the right to file such no jurisdiction over the parties to be thereby affected. lien to his assignee, eren when by statute the lien is Bissell v. Briggs, 9 Mass. 462. If, therefore, upon an assignable and transferable. As to the assignability inspection of the record from another State, waut of of a mechanics' lien, independently of a statute espe- jurisdiction is disclosed as to a necessary party, the cially authorizing it, there is a conflict of authority. judgment or decree will be held void and of no effect The following authorities hold that the lien of a as to such party, even in a collateral proceeding. Hahn mechanic or materialman is a personal right and can- v. Kelly, 34 Cal. 391. In determining the question of not be assigned. Caldwell v. Lawrence, 10 Wis. 33; jurisdiction from such inspection in a case, when the Pearson v. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. record itself shows a particular mode or manner in Y. 766. The following authorities hold that where the which jurisdiction over the person of the defeudant contractor has completed his contract and filed his was acquired, it will not be presumed to have been claim for a lien, he may assign both the debt and the obtained in any other way, in the absence of any averlien. Tuttle v. Howe, 14 Minn. 145; Skryme v. Occi- ment or recital to that effect. Settlemeir v. Sullivan, dental Mill Co., 8 Nev. 219; Davis v. Bilsland, 18 Wall. | 97 U. S. 447; Falken v. Gould, 10 Wis. 506. Where a


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