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danger been known; but whether it used that degree that the defendant company had used a commendable of care aud prudence which very cautious, competent degree of skill, prudence and vigilance in the construcpersons would have used under the apparent circum- tion and management of its road, and that the misstances of the case, to have prevented the accident, fortune to the plaintiff was the result of one of those without reasonable knowledge that it was likely to inevitable accidents of which passengers assume the have occurred. Shearm. & Redf. on Neg., 266; Bowen risk, and for which the law does not hold the company v. N. Y. C. R. R. Co., 18 N. Y. 408.
responsible in damages. Angell on Carriers, $ 523. A railroad company is required to so construct its We are of opinion that the court erred in the charge road-bed and track as to avoid such damages as could as above shown, and also in refusing a new trial, behave been reasonably foreseen by competent and skill- cause the verdict was contrary to the law and the eviful engineers, from the ordinary rainfalls and dence, for which errors the judgment is reversed and freshets incident to the particular section of the the cause remanded. country through which they are constructed, but would not have been guilty of such culpable negligence
MAINE SUPREME JUDICIAL COURT ABas to make it liable in damages, if it failed to provide
STRACT.* against such extraordinary floods or other inevitable casualties, caused by some hidden force of nature,
HUSBAND AND WIFE — ACTION OF ASSUMPSIT NOT unknown to common experience, and which could not
MAINTAINABLE BETWEEN.-An action of assumpsit on have been reasonably anticipated by the ordinary en
account annexed to writ cannot be maintained by a gineering skill and experience required in the prudent
wife against her husband while the connubial relation construction of such railroads. If an accident should
remains in full force. Neither party to the marriage happen from such cause on a road-bed and track contract can sue the other at common law while the which had been properly constructed and kept in good
marriage relation subsists, and this rule is not allowed repair, when the agents and employees in charge of the
by a statute providing that “she may prosecute and train were in the due exercise of that degree of cau
defend suits at law or in equity either in tort or contion and prudence necessary at all times; and when
tract in her own name without the joinder of her husthey did not have, from information conveyed to
band for the preservation and protection of her propthem, or from their own personal observation, reason
erty and personal rights, or for the redress of her able grounds to anticipate impending danger, and
injuries as if unmarried.” See Crowther v. Crowther, consequently did not use such extraordinary precau
55 Me. 358. Hobbs v. Hobbs. Opinion by Appleton, tion as might have otherwise averted it, then the
C.J. law characterizes it as an act of God, or such inevit- MORTGAGE -- RENT OF MORTGAGED PREMISES — able accident as is incidental to all human works, and MORTGAGEE NOT ENTITLED TO.- A mortgagee is not which would relieve the company from liability. Even entitled to the rent of the mortgaged premises from under the rigid rules of the common law, which made the tenant of the mortgagor till he takes possession, or common carriers insurers of the safe delivery of all requires the tenant to attorn to him. Prior thereto articles committed to their care, such cause would the mortgagor is entitled to the rent. The mortgagor, have excused them. Shearm. & Redf. on Neg., $ 290; so long as he remains in possession, or until entry by Withers v. North Kent R. R. Co., 27 L. J. Exch. 417; the mortgagee, may receive the rents and profits to Railroad Co. v. Reeves, 10 Wall. 176; Livezey v. Phila- his own use and is not liable to answer for them to the delphia, 64 Penn. St. 106.
mortgagee. Boston Bank v. Reed, 8 Pick. 459. He is The undisputed facts in this case show, substan- not even liable for those accruing between the comtially:
mencement of action to foreclose and the time of 1. That defendant's road was of first-class, only taking possession upon execution. Mayo v. Fletcher, three years old, and in good order at the place of the 14 Pick. 525. The purchaser of the equity stands in accident; that the ties and iron were sound and the place of the mortgagor, with a right to take the good.
rents and profits to his own use until the mortgagee 2. That in the latter part of the day, and about the shall enter or do some equivalent act. Field v. Swan, dark of the day of the accident, an unprecedentedly 10 Metc. 112. Long v. Wade. Opinion by Appleton, heavy rain fell in that locality, which was not general, C.J. but which caused the embankment to give way under
PARTNERSHIP-PARTNERS SIGNING NOTES IN INDIthe train as it passed over the place, and thus caused
VIDUAL NAMES — WHEN CREDITOR MAY ELECT BEthe disaster.
TWEEN FIRM AND INDIVIDUAL LIABILITY — INSOLV3. That the track at that place was sound and in
ENCY.-Two persons, partners, not having adopted good condition as far as could be seen only 125 min
any firm nanie, made notes in their individual names, utes prior to the occurrence, when the north bound
one as maker and the other as payee and indorser, and train passed over it.
got the notes discounted at a bank, for the purpose of 4. That between that time and the occurrence of the
using the money obtained thereou and using it in their accident, that section of the road embracing the place of the accident was inspected, and found and left in
partnership business. They are in insolvency and
have estates both as partners and as individuals. It good condition, and was still in good condition at the
was known to the bank, when the notes were distime the wrecked train ran on it, as far as could be seen; had its usual appearance to an engineer who had
counted, that they were partnership paper or given for
partnership purposes. Held, that the bank had; an been running over it ever since the road was built.
election to prove its claim either against the partner5. That the train and engine were in good condition,
ship estate, or against the estates of the individual having been so found on examination only one hour before the accident, and were properly manned.
members of the firm; but was not entitled to prove
them against both the joint and the several estates. 6. That the accident occurred seventy minutes after
The bank having filed the claims against all the estates leaving Palestine, and sixteen miles from that place,
before the rule affecting its interests had been estabwhen the train was running at about half speed, on a
lished by statute or judicial decision, a reasonable track which was apparently safe at all times for that
time is allowed to reconstruct the proofs in accordance rate.
with the principles of the decision given. In re War7. That it had rained during the day at Palestine, but not so hard as to make it necessary to give orders
ren, Davies, 327 ; Ex parte Foster, 2 Story, 131; In re in reference to the track.
Holbrook, 2 Low. 362; Paine v. Dwinel, 53 Me. 52; The evidence, as thus disclosed by the record, shows
* To appear in 70 Maine Reports.
Palmer v. Elliott, 1 Cliff. 63; Ex parte First National Venard v. Cross, 8 id. 248. A railroad company has no Bank of Portland; In re Thompson. Opinion by higher rights in a highway than an individual — it may Peters, J.
share in its use, but cannot monopolize it; and the JOINT AND SEVERAL NOTE GIVEN BY PARTNERS
owner of a lot abutting on the highway, and who has
special need thereof for ingress to and egress from his - WHEN CREDITOR MAY HOLD BOTH FIRM AND INDIVIDUAL PARTNERS — INSOLVENCY. — The holder of a
lot, is specially damaged by any monopolizing of the joint and several note given by partners in their part
use of the highway by a railroad company. Where the nership name, they being in insolvency as partners and appropriation charged is in the manner of construcindividuals, is entitled to prove his note against the
tion, and in leaving its cars constantly stauding upon joint estate of the firm and also against the several es
the track, either is a wrong, giving plaintiff a cause of tates of the individual members of the firm, and to
action. Haynes v. Thomas, 7 Ind. 38; E., etc., R. R. receive dividends from all the estates. In re Farnum,
Co. y. Combs, 10 Bush, 382; J. M. & I. R. R. Co. v. 6 Bost. L. Rep. 21, an important case upon this ques
Esterle, 13 Bush, 667; Stetson v. C., eto., R. R. Co., 75 tion not reported elsewhere. See, also, In re Weston,
Ill. 74; Street Railway v. Cumminsville, 14 Ohio St. 523. 12 Metc. 1; Borden v. Cuyler, 10 Cush. 476; Ex parte
Where the wrong done by the railroad company is Farnsworth, 1 Low. 497; In re Holbrook, 2 id. 259;
temporary in its nature, as in leaving cars unnecesMead v. National Bank, 6 Blatchf. 180 ; In re
sarily on its track, or while engaged in the work of Cram, 1 B. R. 132; In re Bigelow, 2 id. 374; In re Tes
laying down its track, something existing to-day and son, 9 id. 378; Emery v. Canal Bank, ñ id. 217; In re
not to-morrow, fluctuating in extent and depending Dow, 14 id. 307 ; Simpson v. Henning, L. R., 10 Q. B.
on the ever-repeated action of the company, ouly such 406; Ex parte Honey, L. R., 7 Ch. 178; Ex parte Stone,
damages as have fully accrued prior to the commenceL.R., 8 Ch. 914; In re Plummer, 1 Phil. 56. The holder is
ment of the suit are recoverable, and none based upon entitled to receive dividends upon the whole claim,
any presumed continuance or repetition of the wrong. provided he does not receive in all more than his full
But where the wrong is of a permanent nature, and due, unless he has received a dividend on one estate
springs from the manner in which the track as fully before making proof against another. Where a divi- completed affects approach to the lot, then, notwithdend has been paid, and generally when declared, on
standing the right which the State retains to control the one estate before proof is made against another, the
manner of use of a highway by a railroad company,even amount thereof should be deducted, and a dividend
if deemed necessary to compel an entire removal of its from the balance only allowed from the other. Sohier
track, the lot-owner may treat the act of the company v. Loring, 6 Cush. 537; Ex parte Wildman, 1 Atk. 109;
as a permanent appropriation of the right of access to Ex parte Taylor, 1 De Gex and J. 302; E. parte Tal
his lot, and recover as damages the consequent deprecott, 2 Low. 320; Ex parte Harris, id. 568. When the
ciation in value of the lot; and in such cases the recormembers of a firm, having no firm name and no joint ery of damages is a consent on the part of the lot-owner estate other than that of the firm, give a joint note in
to such manner of occupying the street, and concludes their individual names for money borrowed for and
both him and any subsequent owner of the property. used in their partnership business, such note is prov
L., etc., R. R. v. Applegate, 8 Dana, 294; LeClercq v. able in insolvency against their partnership estate.
Gallipolis, 7 Ohio, 217; Cincinnati v. White, 6 Pet. 431; This mode of signing partnership paper is as effectual
Mix v. L. B. & M. Ry. Co., 67 Ill. 319; Stone v. F. P. as any other mode. Agawam Bank v. Morris, 4 Cush.
& N. W. R. R. Co., 68 id. 394. Central Branch Union 99; Trowbridge v. Cushman, 24 Pick. 310 ; In re
Pacific Railroad Co. v. Twine. Opinion by Brewer, J. Thomas, 17 B. R. 54; Richardson v. Higgins, 23 N. H. HOMESTEAD - MAY BE IN BUILDING UPON LEASED 106; Tucker v. Peaslee, 36 id. 167; Maynard v. Fel
GROUND - USE OF PART OF PREMISES FOR BUSINESS lows, 13 id. 255; Kendrick v. Tarbell, 26 Vt. 512; Turner
PURPOSES.- A party may acquire a homestead in a v. Jaycox, 40 N. Y. 470; Norton v. Seymour, 3 Man. G.
building occupied as a residence by his family, al& S. 792; Brackett v. Stokes, 58 Tenn. 442; Tilley v.
though the building is erected upon ground in which Phelps, 18 Conn. 295; In re Warren, Davies, 324; For
he has but a leasehold interest. Although a building sythe v. Woods, 11 Wall. 486; Hoare v. Oriental Bank,
upon leased ground is taxable by statute as personal L. R., 2 Ch. 589; Waite v. Foster, 33 Me. 424; Paine v.
property, and although the lessee has the right to reDwinel, 53 id. 52; 1 Pars. on Cont. 214. Berkshire
move the building at the termination of his lease, and Woolen Co. v. Julliard, 75 N. Y. 535. When partners although he mortgages it as personal property, yet the make covenants under seal, the true mode of signing is
homestead character remains as long as the building is individually. Ex parte Nason, In re Thompson.
not removed and is occupied as a resideuce by his fam. Opinion by Peters, J.
ily; and such mortgage is of no validity unless his
wife joins therein or consents thereto. In Sears v. KANSAS SUPREME COURT ABSTRACT.*
Hanks, 14 Ohio St. 301, the court, speaking of the
homestead law, says: “We think its provisions proJANUARY TERM, 1880.
tect the debtor's family as against his creditor to the
enjoyment of an actual homestead, irrespective of the EMINENT DOMAIN -- RAILROAD IN
title or tenure by which it is held." Iu Spencer v. TO ABUTTING OWNER — MEASURE OF DAM
Geissman, 37 Cal. 99, it was held that one having a AGES. - Wbile a railroad company may, when licensed
mere naked possession, the title being in a stranger, by the proper authorities, occupy a street or alley with may acquire a homestead right as against everybody its track, yet if in laying down such track it so changes but the true owner. See, further, on the general printhe established grade, or in any other manner so lays ciple: Deere v. Chapman, 25 Ill. 612; Bartholomew v. its track as to permanently obstruct access to an ad- West, 2 Dill. 293; McKee v. Wilcox, 11 Mich. 358; joining lot, or if it unnecessarily and unreasonably Thorn v. Thorn, 14 Iowa, 49; Pelan v. De Bevard 13 leaves its cars standing on the track so as to interfere id. 53; Conklin v. Foster, 57 Ill. 104; Johnson v. Richwith approach to the lot, the lot-owner may recover ardson, 33 Miss. 462. Where it is shown that a builddamages therefor, and a petition which in general ing is occupied as a residence by the family of the torms charges such wrongs is good as against attack owner, and neither the size nor the number of rooms made simply by objecting to the admission of testi- appears, further than that it is a one-and-oue-halt mony. A. & N. R. R. Co. v. Garside, 10 Kans. 552; story frame building, the homestead character is not
destroyed by proof that one or two rooms therein are * To appear in 23 Kapsas Reports.
used by himself and wife for business purposes. In re
STREET - LIA
Tertelling, 2 Dill. 341; Orr v. Shraft, 22 Mich. 260; estate, but remained the personal property of A. He Lazell v. Lazell, 8 Allen, 575; Mercier v. Chace, 11 id. had the right to sell them to the plaintiff's intestate. 194; Goldman v. Clark, 1 Nev. 607; Ackley v. Cham- Defendant knew that by virtue of the agreement he berlain, 16 Cal. 181; Kelly v. Baker, 10 Minn. 154; had made the buildings remained personal property, Phelps v. Rooney, 9 Wis. 70. Hogan v. Manners. and he is presumed in law to have known that the efOpinion by Brewer, J.
fect of his sale of the laud to K. would be to give him RES ADJUDICATA – WHAT CONSTITUTES. Where
a title to the buildings, and thus deprive the owner of P., who resides in Kansas, commences an action be
all right to them. His sale to K. was the exercise of fore a justice of the peace in Kansas against G., who
dominion over the property inconsistent with the resides in Indiana, and P. also at the same time insti- right of the plaintiff's intestate, who was the owner.
Doliver v. Ela. Opinion by Morton, J. tutes attachment and garnishment proceedings in such
[Decided June, 1880.] action, and P. procures service of summons by publication in a newspaper only, and P. obtains a judg
MASTER AND SERVANT - ONE ment against G. for the amount claimed, and also AT REQUEST OF MASTER NOT CO-SERVANT — NEGLIobtains an order against the garnisbee, who is a debtor GENCE.-Plaintiff was in the employ of one Winchester of G., requiring him to pay the amount of such judg- as a machinist. Winchester had built an engine which ment, which the garnishee does, and P. accepts such defendant, a teamster, had been employed to take to amount in satisfaction of said judgment, but G. did the railroad station and load it on the car. Plaintiff not at any time owe P. any thing nor did P. at any and another employee of Winchester assisted defendtime have any cause of action against G., and G. did ant's servants in loading the engine on defendant's not in fact have any notice of said suit, or attachment, wagou. Defendant, who was present, told plaintiff or garnishment proceedings until long after they oc- and the others (what was denied by Winchester), that curred, held, that nothing in said action, except the it was a part of his agreement with Winchester that disposal of the money or property obtained by virtue two of the latter's men should be sent to the station to of said attachment and garnishment proceedings, and assist in unloading the engine to the car. Believing the title thereto, is res adjudicata, and that G. may this, plaintiff and one other of Winchester's men went maintain an action against P. for the damages occa- to the station and assisted in unloading, during which sioned by the wrongful obtaining of said money. See plaintiff was injured by the negligence of one of deHoshaw v. Hoshaw, 8 Blackf. (Ind.) 258; Melhop v. fendant's servants, for which he brought action. DeDoane, 31 Iowa, 399-407; Alexander v. Hutchison, 9 fendant set up that at the time of the injury plaintiff Ala, 825; 1 Greenleaf on Ev., $ 542; Story on Confl. was his servant, and a co-servant of the one through of Law, $ 549. Starr v. Hinshaw. Opinion by Valen- whose negligence he injured. Held, that tine, J.
plaintiff was not defendant's servant. A servant cannot recover of his master for an injury caused
by the negligence of a fellow-serant, because MASSACHUSETTS SUPREME JUDICIAL when he enters into the service he by implication COURT ABSTRACT.
agrees that he will take the ordinary risks of the
service, including the risk of the negligence of CONVERSION - OF BUILDINGS BELONGING TO AN
fellow-servants. But the plaintiff did not enter into
the service of the defendant. There was no contract LAND-OWNER - WHEN BUILDINGS PERSONAL PROPERTY. — A., in possession of lands belong
of service between them. The plaintiff could not reing to defendant, with an agreement for a deed,
cover any wages of the defendant. He was in the sererected buildings thereon under a verbal agreement
vice of Winchester, and believed and understood that that the buildings were not to become the property of
he was doing the work of Winchester. He was indefendant. Thereafter A., while in possession by bill
duced to assist the defendant by his false representaof sale, under seal couveyed the buildings to plaintiff's
tions, but tbe defendant cannot thus impose upon him intestate. Subsequent to this defendant, by request of
the incidental and implied obligations of a coutract of A., conveyed the lands to K. with warranty, A. at the
service into which he has not entered. Kelly v. Johnsame time gave up the agreement for the deed and a
son. Opinion by Morton, J. release of the lands with the privileges and appurte- [Decided April, 1880.] pances belonging. Neither defendant nor K. knew of the conveyance to plaintiff's intestate. The deed to
CRIMINAL LAW. K. made no mention of the buildings, but conveyed by metes and bounds with the privileges and appur- EVIDENCE-- CONVERSATIONS ACCOMPANYING ACTS tenances. Held, that defendaut was liable to plaintiff PROVED ADMISSIBLE.—Where acts and transactions in for the conversion of the buildings. If a man puts a which the accused person took part previous to a murhouse or other building upon land of another, under der were given in evidence by the prosecution, held, an agreement with the owner of the land that he may that the exclusion of conversations accompanying such remove it, the building becomes his personal property. acts and transactions offered to be shown by the deHe may lose his right to it if the land is sold to an in- fense was erroneous. If the acts of the accused done nocent purcbaser without notice of the agreement. before the commission of the crime with which she is He cannot set up his title against such innocent pur- charged are competent evidence tending to show that chaser whom he has misled by permitting the building she committed such crime, then what was said at the to be attached to and apparently a part of the realty time the act was done is also admissible, as explanabought by him. But as against the original owner of tory of the same, and as indicative of the intent or the land and all persons taking under him with notice, object of the act. The reason for this rule is very the building never becomes a part of the realty, but forcibly stated in Wiggins v. Plumer, 11 Fost. (N. H.) remains personal property, and he or a purchaser from 251-267 : “When evidence of an act done by a party is him may maintain replevin or trover to recover it, or admissible, his declarations made at the time having a its value, even while it remains npon the land and ap- tendency to elucidate or give character to the act, and parently a part of the realty. Hunt v. Bay State Iron which may derive a great degree of credit from the act Co., 97 Mass. 279; Brooks v. Prescott, 114 id. 392; itself, are also admissible as part of the res gesta." And Hartwell v. Kelly, 117 id. 235. In this case by virtue the rule is substantially stated in the same way in Gorof the agreement between A. and the defendant, the don v. Shurtliff, 8 N. H. 260; Plumer v. French, 2 Fost. buildings never becaine part of the defendant's real 454; and Hersom v. Henderson, 3 id. 498. “When a
fact is offered in evidence, the whole transaction of it hand, and addresses them: 'Look upon the prisoner, consists of many particulars, which may and ought to you that are sworn; how say you, is be guilty of the be proved. Every additional circumstance proved felony (or treason, etc.), whereof he stands indicted, may vary the effect of the evidence — may neutralize it or not guilty?' The foreman then answers 'guilty,'or or give it point. What is then said by the parties, and 'not guilty,' according to the conclusion to which the what was said by others to them, relative to the sub- jury have arrived in their consultations. The officer ject of the transaction, is a part of the transaction then writes the word 'guilty,' or 'not guilty,' as the itself. It is admissible on the same principle that every verdict is, after the words 'pro se' on the record, and other part of it is, that the whole matter may be seen again addresses the jury: 'Hearken to your verdict, by the jury - upon the same principle which disallows as the court hath recorded it: You say that A B is extracts or written papers, that their effects may be guilty (or not guilty) of the felony whereof he stands materially varied by the part omitted. Contemporan- indicted, and so say you all.'" 1 Chitty on Crim. Law, eous but otherwise unconnected conversation is re- 635-6; 1 Bishop on Crim Pro., § 1001. Nebraska Sup. jected on the same ground as other unconnected facts. Ct., Feb. 10, 1880. Longfellow v. State of Nebraska. If the statement offered in evidence does not tend to Opinion by Maxwell, C. J. elucidate or give character to the acts proved, it is to be rejected. If it is upon the same subject and relative
FINANCIAL LAW. to the act in proof, it should be received." The case of Wiggins v. Plumer, supra, was referred to by the
BANK — LIABILITY FOR MISTAKE-PROTESTING NElate learned Justice Paine in Ranger v. Goodrich, 17
GOTIABLE INSTRUMENT FOR CUSTOMER CUSTOM Wis. 78–85, and approved as stating the true rule in
CURRENT FUNDS - GRACE. - A certificate of deposit, cases of this kind. The same rule is stated in Lund v.
payable to order one year after date, “in current Tyngsborough, 9 Cush. 36-41. This court, in the case
funds," was placed in the hands of a bank at D. for of Bates v. Ableman, 13 Wis. 644-650, admits the jus- collection. It was issued by a banker at D. It was tice of the rule as stated in the latter part of the above
protested on the day it was due, without grace. By quotation in the following language: "It is undoubt
a custom among bankers,"current funds" meant edly true that where the intent of a party to a sale is in
money, and by a custom among the banks of D., in issue, his statements at the time, and so connected relation to certificates of deposit issued by any bank with the transaction as to be a part of the res gesta, are there, they were payable without grace. Held, that competent evidence to show such intent, even though the certificate being payable in money, the indorser the person is not a party to the suit.” In the case of
was discharged by a failure to present, etc., with grace, Sorenson v. Dundas, 42 Wis. 642, the rule is stated very but that the bank was not guilty of negligence in its briefly: "Declarations are verbal parts of the res gestoe action so as to make it liable to the owner of the ceronly when they are contemporaneous." Felt v. Ami
tificate for any loss resulting from such discharge. don, 43 Wis. 467. In Hamilton v. State, 36 Ind. 280, it is The certificate on its face was not negotiable, and the said: “It is well established by the authorities that in
demand and protest was well made on the day it was, all cases, civil or criminal, where evidence of an act but for the custom that "current funds" meant money done by a party is admissible, his declarations made at
or National bank notes, and because of this it became the time, having a tende:cy to elucidate, explain, or a negotiable instrument, entitled to grace. The fact give character to the act, are admissible. They are a of negotiability was therefore a mixed question of part of the transaction, and for that reason are admis- law and fact. Admitting the bank was bound to know sible, and it makes no difference, so far as the admissi- the law, this is not true as to the matter of fact. If it bility of the declaration is concerned, whether it be in
was the duty of the bank to make inquiry, such infavor of or against the party making it. If the act was
quiry being made, it would have been developed that one of alleged criminality, and the accompanying dec- current funds meant legal tenders and National bank laration tends to show it to be innocent, it is equally notes. Regarding the certificate as being payable in admissible as when the tendency is to show the crim- National bank notes, the bank must determine at its inality of the act; and it may be given in evidence by peril whether it was negotiable. This being determined the defendant as well as by the State." See, also, Par- in the affirmative, inquiry would have shown another son8 v. State, 43 Ga. 197; Comfort v. Heople, 5 III. 404;
custom to the effect that the certificate was payaHlead v. State, 44 Miss. 731; McKee v. People, 36 N. Y. ble without grace.
The bank must then determine 113; Russell v. Frisbie, 19 Conn. 216. Wisconsin Sup. which of these customs it would follow. Suppose Ct., Feb. 3, 1880. Mack v. State of Wisconsin. Opinion it adopts the latter, and upon the trial the jury should by Taylor, J.
find, according to the weight of evidence, uo such cusTRIAL-PRIVY VERDICT NOT ALLOWABLE. — Upon
tom existed, would it follow that the bank was guilty a trial for felony the verdict of the jury was received
of negligence? It would not, because the true quesby the judge about eleven o'clock at night, after the
tion is not as to whether it was true in fact as to such court had duly adjourned until another day and the
custom, but whether the bank had good reason to so jury were discharged. The statute of Nebraska, where
believe, and acted in good faith, upon such belief, as a the trial took place, provides that “when the jury
careful and prudent person engaged in the same busihave agreed upon their verdict they must be conducted
ness would ordinarily have done. Iowa Supreme Ct., into court by the officer having them in charge. Be
April 26, 1880. Haddock v. Citizens' National Bank of fore the verdict is accepted, the jury may be polled at
Des Moines. Opinion by Seevers, J. the request of either the prosecuting attorney or the ULTRA VIRES - SAVINGS BANK MAY BORROW MONEY defendant." Held, that the verdict was a privy one AND MORTGAGE SECURITIES-ESTOPPEL BY LAW DOES and erroneous. A verdict to be of any validity must NOT BIND PUBLIC. - A savings bank, by its charter, be delivered in open court. This was the rule of com- had express power to receive money on deposit; to mon law. Chitty says: "When the jury have come to receive and execute trusts committed to the corporaan unanimous determination with respect to their ver- tion by any person or persons, or by order of any court dict they return to the box to deliver it. The clerk in this State; to grant and purchase annuities; to then calls them over by their names, and asks them issue letters of credit and other commercial obligawhether they agree on their verdict, to which they re- tions, other than notes designed to circulate as money; ply in the affirmative. He then demands who shall to loan money; to receive money on deposit and pay say for them, to which they answer their foreman. interest therefor; to discount according to bank usage; This being done, he desires the prisoner to hold up his to take stock in other corporations; to buy and sell exchange, bills, notes, bonds, and other securities; to dissolved by the Scotch courts. Prob. Div. and Adm. have and bold coin and bullion; to take and hold real | Div., April 23, 1880. Harvey v. Farnie. Opinion by estate as security for and in payment of loans and Hannen, Prest., 42 L. T. Rep. (N. S.) 482. debts due or to become due to the corporation; to pur
MARITIME LAW – - CHARTER OF MORTGAGED SHIP. — chase and hold real and personal property at any sale to enforce its securities or debts due; to hold said
Where the owner of a ship, which is mortgaged, charproperty, and sell and convey the same; and to pur- mortgagee cannot interfere to prevent the execution
ters her before the mortgages takes possession, the chase and hold such real and personal estate as may be convenient for the transaction of its business. Special impair the value of his security, and if the vessel be
of the charter-party unless it will materially injure or power was also given to receive deposits from married arrested in an action of mortgage by the mortgagee, women and minors, and to issue therefor certificates
the court will release her on the application of the payable in their names, and payable to their order only; and to pay and receive any rate of interest, not
charterer, unless such injury is shown by the mortexceeding 10 per cent, and to make special regulations gagee. Prob. Div. and Adm. Div., April 21, 1880. The in regard to trust funds, deposits or savings. Held, Fanchon.. Opinion by Sir R. Phillimore, 42 L. T. Rep.
(N. S.) 483. that it had in addition the implied power to borrow money and to execute a deed of trust of securities held
NEW BOOKS AND NEW EDITIONS. by it to secure such loan, and further, where the loan was used for the benefit of the bank, it could not set
VII TEXAS COURT OF APPEALS REPORTS. up as a defense to certificates secured by such deed of trust, that the contract was made ultra vires. Plant- THIS
PHIS volume, published by F. II. Thomas & Comers' Bank v. Sharp, 6 How. 323; Curtis v. Leavitt, 15
pany, of St. Louis, contains decisions at Tyler N. Y. 52; McIntire v. Preston, 10 Ill. 48. Accord-term, 1879, and the early part of Galveston term, 1880. ingly, when the bank, by deed of trust, conveyed to a The court, it will be recollected, is exclusively of trustee certain securities owned by it, and created an criminal jurisdiction. This volume contains no decis“investment department,” and issued certain instru- ions of remarkable general interest, but the cases are ments styled “investment securities," for the respect- intelligently decided and well reported. There are ive amounts of money received from those accepting twenty-six murder cases in the volume. A few gleams them, such instruments being described as secured by of the grim humor which usually enlivens the series the deed of trust, held, that the transaction was valid are noticeable. In Moore v. State, p. 14, an indictment and the deed of trust enforceable in behalf of the for murderous assault, the court thus concluded: "Our security holders, against the property described in and sympathies have been enlisted on behalf of this young conveyed by it, and the defense of ultra vires could man. We find him, in company with his father, in a not be set up by the bank or its receiver in insolvency. bowling-alley, where at least some of the parties were Darst v. Gale, 83 IlI. 141; E.c parte Clapperdale, D. G. rolling ten-pins for and drinking medicated blackberry M. & G. 19; Bradley v. Ballard, 55 Ill. 413; West v. brandy, and which is the introduction of the parties Menard Co. Ag'l Bd., 82 id. 206; Maher v. Chicago, 38 by one of the witnesses, and we are impressed with the id. 266; Railway Co. v. McCarthy, 96 U. S. 267; San belief that he has probably fared badly more on acAntonio v. Mebaffy, id. 315; Hitchcock v. Galveston, count of the bad company he was in than from any id. 351; Morris R. Co. v. R. Co., 20 N. J. Eq. 542; innate vice of his own; and it may be, that like one of Whitney Arms Co. v. Barlow, 63 N. Y. 62. Held, also, old, the son's teeth were set on edge on account of the that a violation of the by-laws of the bank in issuing father having eaten sour grapes.” But the young man such securities would not be available against a secu- was convicted, all the same. Haines v. Stute, p. 30, rity holder. As a rule, the by-laws of a corporation was an indictment for keeping open a saloon and treatare binding only on its members and officers. Illinois ing a crowd to drinks on election day. The defense Supreme Ct., May 18, 1880. Ward v. Johnson. Opin- was that he had a right to keep the same open for the ion by Schofield, J.; Scott, J., dissented.
sale of his other goods, wares and merchandise, con
sisting of sardines, oysters, salmon, pickles, canned RECENT ENGLISH DECISIONS.
fruits, flour, vinegar, cigars, etc. The court observed : “There might be some plausibility in the position if
the evidence had left us in doubt as to his motives and BOUNDARY — ALONG HIGHWAY. - The presumption purposes in opening the doors. This it does not do. of law that the property in the soil of a road belongs His object was, not to sell those other goods, but to usque ad medium filum viæ to the adjoining proprie- treat the crowd.' The crowd, or those of it who tors, and consequently that a conveyance of an estate responded, for aught that appears, with promptness, to bounded by a road passes the land up to the middle of the invitation, were not misled as to his meaning. It such road, does not arise until the road has been dedi.
is evident that the first State's witness, Quitman Ancated to the public by being used as a highway. De- derson, who was one of the party invited, did not get eision of Exchequer Division (Kelly, C. B., and Cleasby, 'any oysters, sardines, pickles, fruits,' etc.; for he B.), affirmed. Ct. of Appeal, Dec. 11, 1879. Leigh v. expressly says, 'I don't remember seeing any such Jack. Opinions by Cockburn, C. J., and Bramwell and things in his house; there was a crowd in the house, Cotton, L. JJ. 42 L. T. Rep. (N. S.) 463.
and as soon as I got a drink I came out.'” In Ned CONFLICT OF LAW -- DIVORCE – DOMICILE. — A domi- | Curry v. State, p. 91, an indictment of “guily as ciled Scotchman married an English woman in Eng. charged in the indictment” was held good. The court land. After the marriage he retained his Scotch distinguished Taylor v. State, 5 Tex. Ct. App. 521, domicile, and continued to reside in that country with where the verdict was simply "guity.” In McCoy v. his wife for about two years, when she obtained a State, p. 379, an assessment of punishment by the jury, divorce from him before the Scotch Court of Session, "a five years in the State prisin,” was held good. In on the ground of bis adultery only. Subsequently he McMillan v. State, p. 100, this verdict was held good : came to reside in England, where he married for the “We, the jury, find the defendend guilty, and assess his second time. The second wife now sought to have her punishment at five years' confindendment in the State marriage declared null and void, on the ground that penitentiatry.” In Irvin v. State, p. 109, a hog-killing the Scotch divorce was inoperative, at any rate in case, a witness testified to finding the hog in the folEngland, and that therefore the respondent had a wife lowing condition: “I put my foot on him, and he did living at the time of such marriage. Held, that the not say any thing for he was speechless.” In Lanham marriage was a Scotch marriage, and, as such, properly I v. State, p. 126, a murder case, it was proved that the