« SebelumnyaLanjutkan »
but otherwise if such attorney becomes a trustee to his money and does not properly support her, her leavinvest. The evidence showing that the attorney, in ing him cannot be held to be a desertion by him. this case, promised the complainant to obtain first Lewis v. Lewis, 2 Hal. Ch. 22. Sandford v. Sandford. mortgages for her, he was held (it being a case of Opinion by Runyon, Chancellor. mingled trust and agency) accountable for the amount
NEGLIGENCE - PROXIMATE CAUSE — FIRE COMMUNIof the incumbrances on the property prior to hers, but
CATED BY BURNING OIL ON STREAM.—Damages caused not for any subsequent depreciation in the value, by negligence, to be recoverable, must be not only its caused by general business depression, the property at
natural, but also its proximate, consequence. And the time or loaning being shown to have been, apart "proximate,” as here used, means closeness of causal from the prior incumbrances, abundant security. Nan- connection, and not nearness in time or distance, and crede v. Voorhis. Opinion by Runyon, Chancellor.
is intended to qualify the generality of the idea exCONSTITUTIONAL LAW – STATE CANNOT BE SUED pressed by the word "natural.” In cases where fire is WITHOUT ITS CONSENT.--Sovereign States cannot, with- negligently started, but is not immediately commuout their consent, be sued in their own courts, where nicated to the property destroyed, but is communicated no provision to the contrary exists in their Constitu- from one building to another until it reaches the proptions or by special enactments. In 1872, the State erty destroyed, causal connection will only cease when, granted certain lands under water to the West Line between the negligence and the damage, an object is Co., which, as part of the consideration, gave thereon | interposed which would have prevented the damage, if a mortgage of $82,000 to the trustees for the support of due care had been taken. When the burning matter is public schools. The complainants claim that at the oil, a running stream may form a natural link in the time of this grant they were in possession of the mort- chain of causation. Where a fire originates in the gaged premises under an indefeasible title; that the carelessness of a defendant, and is carried directly by grant was in violation of their vested rights; that in a material force, whether it be the wind, the law of 1874, they themselves obtained from the riparian com- gravitation, combustible matter existing in a state of missioners of the State a grant of certain contiguous nature, or a running stream, to the plaintiff's property, premises, by an instrument containing an agreement and destroys it, the defendant is legally answerable for that in case the State had no right and power to vest the loss. Kuhn v. Jewett. Opinion by Van Fleet, the title to the mortgaged premises in the West Line Vice-Chancellor. Co, by the grant of 1872 (which right the instrument declared was claimed by the State, but denied by the PENNSYLVANIA SUPREME COURT ABcomplainants), then the State should release to the
STRACT. complainants, free from any incumbrance thereon by mortgage given to the State, all its right, title and in- CORPORATION - INDIVIDUAL MEMBERS OF terest in the premises. On foreclosure of their mort- OF MANAGERS CANNOT BIND, AND CONTRACTS NOT IMgage by the trustees, held, that neither the trustees por PLIED FROM THEIR DECLARATIONS. - Plaintiff below any prior grantees of the mortgaged premises could be claiming to have been employed by a corporation havenjoined from proceeding with the foreclosure and sale ing charge of a county work-house, to sell all the barrels by reason of the agreement in the grant of 1874, or by it should manufacture during a certain year, some two reason of complainaut's claim to have it specifically hundred thousand in number, brought action for comperformed, because, even if binding on the State, the missions on making a sale. He endeavored to estabState cannot, in its own courts, be compelled to per- lish the fact of his employment by proving what had form it, and also because if the trustees are other than been said by the president of the board of managers the mere agents of the State, it is not binding on them of the corporation, by one of the members of the or on any grantee of the State prior to 1874. Hovenden board, and by the superintendent of the work-house, V. Anuesly, 2 Sch. & Lef. 607, 617; Dicey on Parties, 4; each separately and on different occasions. He utterly Michigan State Bank v. Hastings, 1 Walk. Ch. 9; failed to show that any corporate action was had by United States v. McLemore, 4 How. 286; Hill v. U. the board, by virtue of which he was employed, or by S., 9 id. 388; Beers v. Arkansas, 20 id. 527 ; State v. which the power to employ him was delegated to any Kirby, 2 South. 835; Loder v. Baker, Arnold & Co., 10 member of the board or to the superintendent. Held, Vr. 49; Priddy v. Rose, 3 Metc. 97 ; Calvert on Parties, insufficient to prove the fact of his employment. Un252, 253; Trustees v. City of Trenton, 3 Stew. Eq. 669; less they are authorized, the individual members of a State v. Trenton, 11 Vr. 91; Nurse v. Lord Seymour, corporation cannot bind it by an express promise, nor 13 Beav. 254; Michigan State Bank v. Hammond, 1 can corporate engagements be implied from their unDoug. 597; Hill v. United States, 9 How. 388; Osborn authorized and unsanctioned acts or declarations. The v. U, S. Bank, 9 Wheat. 251; High on Inj., $ 266 ; acts or declarations of a director in a corporation will Freeman v. Elmendorf, 3 Hal. Ch. 475; S. C., on ap- not bind or in any manner affect it unless they are peal, id. 658; Drake v. Jones, 27 Mo. 428. American shown to be within the scope of his ordinary powers Dock and Improvement Co. v. Trustees of Public or of some special agency. Ang. & A. on Corp., $ 239; Schools. Opinion by Runyon, Chancellor.
Soper v. Buffalo & Rochester R. Co., 19 Barb. 310. DIVORCE — DESERTION
Corporate rights are not to be frittered away by loose WIFE LEAVING HUSBAND BECAUSE HE GAMBLES.—(1) That a husband gambles and unauthorized declarations, made by persons who and does not properly support his wife, in consequence
at the time had no authority to bind the corporation; of which she leaves him, does not constitute desertion
and this principle applies as well to individual directors by him on which to decree a divorce. It is a recog.
and employees of a corporation as to strangers. Nor nized principle that when a husband treats his wife is there any hardship in this, because, as is said in with such cruelty or violence that she is obliged to Cooper v. Lampteer Township, 8 Watts, 125: “Every leave him for safety, or to aroid personal injury, this person is supposed to know the restrictions on the compulsory flight amounts to a desertion by him, and power of the officers of a corporation of a public if he does not seek her and try to persuade her to re
nature, and the extent of their authority." Allegheny turn, with promises of amendment, such compulsory County Work-House and Inebriate Asylum v. Moore. leaving and consequent remaining away from him, it Opinion by Sterrett, J. continued for the requisite time, will be regarded as
[Decided October 25, 1880.] equivalent to a willful and obstinate desertion by him. NEGLIGENCE CONTRIBUTORY, OF PARENTS -- RAILLaing v. Laing, 6 C. E. Gr. 248; Palmer v. Palmer, 7 id. ROAD COMPANY OWES NO DUTY OF PROTECTION TO 88. But if she leaves him because he gambles away CHILDREN TRESPASSING UPON ITS TRACK. - Parents
who permit their children to trespass upon the prop- is not an infringement, and for the purpose of injuring erty of a railroad company are guilty of negligence; the trade of the other manufacturers, or of the person and where a child of tender years, who is allowed to selling the articles manufactured by them, he is liable wander upon railroad property is injured, the com- to an action. A patentee may be restrained by inpany owes no duty to the child nor to the parent and junction, notwithstanding he has given the notice bona is not liable to either for the injury. In Mulherin v. fide, from continuing to issue the notice where it is Delaware, Lack. & W. R. Co., 31 P. F. S. 366, it was shown that his allegation is not true. Rollins v. Hinks, said: "
Except at crossings, where the public have a 26 L. T. Rep. (N. S.) 56; L. R., 13 Eq. 355, and Axright of way, a man who steps his foot upon a railroad mann v. Lund, 31 L. T. Rep. (N. S.) 119; L. R., 18 Eq. 330, track, does so at his peril. The company has not only discussed. Chano. Div., June 10, 1880. Halsey v. a right of way, but it is exclusive at all times and for Brotherhood. Opinion by Jessell, M. R., 43 L. T. Rep. all purposes,” and Railroad Co. v. Norton, 12 Harris, (N. S.) 366. 465, was cited in support of the rule. In Philadelphia
EASEMENT ACCESS OF AIR TO SLAUGHTER-HOUSE. & Read. R. Co. v. Hummell, 8 Wright, 378, it is said
Where a slaughter-house had been used as such for that children “cannot be upon the railroad without a
upward of thirty years, damages were given for an culpable violation of duty by their parents or guardi- obstruction of access of air, on the ground of implied ans." In Philadelphia & Read. R. Co. v. Long, 25 P. F. Smith, 265, it is said: “To suffer a child to wander ble for the purpose of a slaughter-house. Chanc. Div.,
covenant not to interrupt the free access of air suitaupon the street has the sense of permit. If such per- June 26, 1880. Hall v. Litchfield Brewery Co. Opinion mission or sufferance exist, it is negligence." And in by Fry, J., 43 L. T. Rep. (N. S.) 380. Duff v. Allegheny Val. R. Co., where a conductor of a train, in violation of the rules of the company, per
WILL- -ON SEPARATE SHEETS OF PAPER - EXTRINSIC mitted a boy to sell papers on the train, and the boy
PARTS. -- M. R. was killed by the negligence of the company, the right executed her last will and testament on the 1st August, of his mother to recover was denied, upon the ground | 1872. The will was entirely in her own handwriting, that the boy was a mere trespasser, and the company
and was on two sheets of note paper stitched together owed him no duty. Cauley v. Pittsburgh, Cincinnati & like a book. On the first page of the outer sheet were St. Louis Railroad Co. Opinion by Paxson, J.;
the words, “I appoint my nephews, R. J. G. and R. G. Trunkey and Sterrett, JJ., dissented.
L., to be my joint executors to carry my will into [Decided November 8, 1880.]
effect; I appoint my nephew R. J. G. to be my execu
tor, and sole residuary legatee, M. R.; and placed with PROCESS - NOT PROTECTION TO PARTY BUT ONLY TO
my will the 1st August, 1872." The second page of tho OFFICER. - In a suit against the plaintiffs in an execu
outer sheet was blauk. Then followed the will, which tion for seizing and selling property thereunder, they was written on the first, second, third and fourth pages must show the judgments on which the executions of the inner sheet, the sigvature and attestation clause issued, to justify the taking. The rule is beld differ- being on the fourth page of the said inner sheet. Then ently when the suit is against a sheriff or constable followed the third page of the outer sheet which was who are ministerial officers. When an execution, in blauk, while on the fourth page of the outer sheet regular in form, and nothing on its face indicates want
was written as an indorsement the words “The will of of jurisdiction in the justice, is directed to the con
M. R., 1st August, 1872." At a trial in which the issuo stable and placed in his hands, it is sufficient to protect
was whether the appointment of executors and residuhim in duly executing it according to its commands.
ary legatee on the first page of the outer sheet formed He is not required to examine the record to ascertain part of the document at the time of the execution whether the justice had jurisdiction, and whether the thereof; the attesting witnesses having been called, proceedings are all regular. The apparent regularity and though able to prove the date of execution of the and presumed jurisdiction, as evidenced by the writ, document, being unable to say what its contents were not only protect him in its due execution, but make it his duty to proceed to execute the writ. Among the that the declarations, parol and written, of the testa
or on how many sheets of paper it was written. Held, numerous decisions recognizing this principle may be cited: Kerlin v. Heacock, 3 Binn. 215; Paul v. Van- the will, as to her intentions at the time of making it,
trix, both before and subsequent to the execution of kirk, 6 id. 124; Allison v. Rheam, 3 S. & R. 139; Kings- and as to her subsequent belief that she had carried bery v. Ledyard, 2 W. & S. 37; Moore v. Allegheny those intentions into effect, were admissible for tho City, 6 Harris, 55; Billings v. May, 11 id. 23; Cunning, purpose of showing what were the component parts ham v. Mitchell, 17 P. F. Smith, 78; Fall Creek C. and thereof; and that the fact of the will being in existI. Co. v. Smith, 21 id. 230; Savacool v. Boughton, 5
ence, and not lost as in the case of Sugden v. St. LeonWend. 170; Beach v. Furman, 9 Johns. 230; Holden v.
ards, 34 L. T. Rep. (N. S.) 369, did not affect the quesEaton, 8 Pick. 437. Barr v. Boyles. Opinion by tion. Probate Div. and Adm. Div., June 22, 1880. Mercur, J.
Gould v. Lakes. Opinion by Sir James Hannen, P., 43 [Decided November 15, 1880.]
L. T. Rep. (N. 8.) 382.
RECENT ENGLISH DECISIONS.
NEW BOOKS AND NEW EDITIONS. PATENT -RIGHT OF PATENTEE TO THREATEN LEGAL PROCEEDINGS AGAINST PURCHASERS FROM OTHER MAN
LASCELLE'S HORSE WARRANTY. UFACTURERS — WHEN SUCH NOTICE RESTRAINED. – A The Law relating to the Purchase, Sale, Letting and Hiring of patentee may give notice to persons that they are in- Horses, and the Rights and Liabilities of Innkeepers, fringing his legal rights when such notice is given bona Livery-Stable Keepers and others, using Horses, with fide, without his being bound to follow up such notice
Hints as to Procedure in Cases in Dispute. By Francis by legal proceedings, and he is not liable, in default of
Henry Lascelles. Second edition. London: Reeves &
Turner, 1881. Pp. xii, 184. his bringing such legal proceedings, to an action for
damages or for an injunction
restraining him from Thusebook horses, rather than for lawyers, and with
issuing such notice; but where a patentee threatens the purchasers from other manufacturers, or adver-this limited scope, and for the English market, it is tises that the articles sold by other manufacturers are well executed. It will not be amiss among lawyers infringements of his patents, knowing that his patent and in this country, although there are no American is invalid, or that the article sold by the manufacturers | cases cited, and we have already a good work on the
THE.collowing decisions were handed down Tuesday,
same subject in Hanover on Horses, which cites the
CROSS-EXAMINATION. English as well as the American cases. If we are to believe Cicero, from whom the present author quotes Editor of the Abany Law Journal: on his title page, there is after all much more need of In Rollwagen v. Rollwagen, 63 N. Y. 504, Wm. H. such a book in England than in this country, for Cicero Arnoux and Wm. A. Beach, for the appellant, mainsaid: “Tu qui cæteris cavere didicisti, in Britannia ne tained that: “The General Term erred in holding that ab essedariis decipiaris caveto."
the right of cross-examination is confined to subjects
upon which the witness has been examined by the XXI AMERICAN DECISIONS.
party calling him," citing authorities; yet the judg
ment in that case was affirmed. This volume has cases from 1 Saxton, 1 Halsted, 2
Can you inform me, through the columns of your Paige, 4, 5, 6 Wendell, 2 Devereux Law, 1, 2 Penrose & JOURNAL, considered to be a court of reliable resort, Watts, 2 Rawle, 1, 2 Bailey Law, 1 Bailey Equity, 2, 3 how the law of this State now stands upon that point? Vermont, 2 Leigh, 3 Stewart, 1 Stewart & Porter, 8, 9
J. B. DALEY. Connecticut, 2 Blackford; and notes on privilege of WINDHAM, N. Y., Dec. 14, 1880. witness; power of appellate court after remittitur; justification of officer by process; notes payable in [There can be no doubt that the rule here is, that specific articles; definition of “in jeopardy; " "tools" cross-examination is not limited by the direct, but in exemption laws; what is necessary to attach per- if it exceeds it, the witness in so far becomes the sonalty; effect of foreign divorce.
witness of the cross-examining party. – ED. ALB.
R. NATHANIEL C. MOAK, of this city, has issued Judgment affirmed with costs - Maas v. The Mis- a complete and useful Subject Index of Elementsouri, Kansas and Texas Railroad Company and ano: ary Law Books, used by him in his lectures to the AlWehle v. Conner; The Phoenix Insurance Company of bany Law School, class of '81, on Books, their Selection Brooklyn v. Floyd.—Judgment reversed and new trial
and Use. Mr. Moak indicates which he regards as granted, costs to abide event - David v. The Williamsburgh City Fire Insurance Company; Bryan v. Stewart; best, second best, and third best. No one is better Baird v. The Mayor, etc., of New York; Haynes v. fitted to advise on this subject than Mr. Moak, and the Rudd; Sparman v. Keim.-Judgment of General Index will be useful to every student and lawyer.Term reversed, and judgment on report of referee F. D. Linn & Co., of Jersey City, publishers of the affirmed with costs — Church v. Simmons.- -Orders of General Term and Special Term reversed, and an
Criminal Law Magazine, Jarman on Wills, and other order entered vacating the attachment as against the admirable issues, have put forth an edition of Fieldland embraced in Mrs. Alberger's deed, with costs – ing's Novels, in four volumes duodecimo, at $7. The The Steuben County Bank v. Alberger. -Order re- book is elegantly printed and bound, and has reproducversed and proceedings remitted to recorder, with tions of Cruikshank's famous illustrations. The page is directions to proceed and try the prisoner- The People one of the fairest we have ever seen. Fielding is one ex rel. Comerford v. Dutcher, sheriff.- -Order affirmed, of the half dozen greatest masters in English literawith costs – In re Kendall to vacate assessment.Order of General Term reversed, and judgment of ture, whose works can never grow obsolete, but must Special Term affirmed, with costs — Josepthal v. Steffen. have a constantly-increasing value as faithful and vivid Motion for reargument denied, with $10 costs Lord pictures of his time. Amelia is one of the strongest, v. Harrison; The Pacific Pneumatic Gas Company v. sweetest and sincerest novels ever written. Every Wheelock. -Motion to amend return denied, with $10 lawyer should read Fielding, for he was himself a lawcosts - Schultz v. Hoagland. - Appeals dismissed, with costs of appeal, and $10 costs of this motion
yer and a useful magistrate. It is much better to reStevens v. Glover. -Motion denied, without costs
sort to this grand and genuine old master than to deThe People ex rel. Egan v. The Justices of the Marine vour such namby-pamby stuff as Endymion. Fielding Court of the City of New York.
is called coarse. His coarseness was simply that of his time, like Shakespeare's. He is never gratuitously
nasty. There is more unadulterated “smut" in many CORRESPONDENCE,
a modern society novel, like one of Ouida's, or in a
modern play, like Frou Frou, or a modern opera, like POWERS OF NATIONAL BANKS.
La Traviata, than in all of Fielding's works, while
there is in these modern works no healthy counteractEditor of the Albany Law Journal:
ing air like that whicho blows on every page of Eng. In your note of cases on the power of banks to pur- land's “prose Homer." chase notes (ante, p. 462), you say at the end: “This important question ought to be settled, as to National
Debenham v. Mellor, respecting a wife's right to banks, by the Federal Supreme Court.” Has it not pledge her husband's credit for necessaries (see 21 Alb. thus been settled, practically, by the decision of the L. J. 344), has been affirmed in the House of Lords. United States Supreme Court in The Union National Lord Justice Coleridge succeeds Sir Alexander Bank, Skinker et al. v. Matthews, October term, 1878, Cockburn as lord chief justice of England. This ap19 Alb. L. J. 132? The effect of that decision, as I pointment was expected, and we believe gives satisfacunderstand it, is that a private person has no right to tion. It is said that Lord Justice Blackburn was conset up in defense the assumption by a bank of a power spicuously absent from the late lord chief justice's not conferred, or prohibited (which is the same thing), funeral. Lord Penzance was also probably absent. but that “the sovereign alone can object;" the gov- The Chicago Legal News says that the Illinois Suppleernment must exact a forfeiture of the charter, obtainment of the North Western Reporter has been disconjudgment of ouster, etc., and “a private person can- tinued for want of patronage. We can easily apprenot, directly or indirectly, usurp this function of the ciate the difficulty when the Illinois reporter issues government." Respectfully yours,
advance sbeets and the News publishes head-notes very
J. KOPELKE. Crown POINT, INDIANA, Dec. 14, 1880.
promptly. Still it was a good enterprise, and we are sorry it has not been successful.