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provided as follows: “I direct my said trustees to per- In Terry v. Tubman, 92 U. S. 156, we decided that mit and suffer my son William B. Slocum to have, where the charter of a bank contained a provision receive and take the rents, issues and profits thereof binding the individual property of its stockholders for for the term of his natural life; and after his decease I the ultimate redemption of its bills in proportion to give, devise and bequeath the same part or share to the number of shares held by them respectively, the the heirs at law of my said son.” It is claimed on the liability of the stockholder arose when the bank repart of the plaintiff that these provisions created a fused or ceased to redeem and was notoriously invalid, express trust, and hence that the legal title was solvent, and that when such insolvency occurred, prior vested in the trustees, and that the judgment did not to June 1, 1865, an action against a stockholder not become a lien upon the one-third thus devised; and commenced by January 1, 1870, was barred by the hence that the judgment creditor was not a necessary statute of limitations of Georgia of March 16, 1869. party, and this was the view taken in the court below. That act, as recited in its preamble, was passed on On the part of Thompson it is claimed that the trust account of the confusion that had grown out of the was invalid ; and hence that William B. Slocum took a distracted condition of affairs during the late war," life estate in the land upon which the lien of the judg- and substantially barred suits upon all actions which ment attached; and hence that the judgment creditor accrued before the close of the war, if not commenced should have been made a party, and this claim we be- by the first day of January, 1870. lieve to be well founded. The trust attempted to be This is a suit to enforce the liability of the stockcreated is a passive one, and condemned by the statute. holders of a bank under a provision of the charter The trustees had no active duties to discharge. They similar to that considered in Terry v. Tubman, and it were not to receive the rents and profits of lands and is expressly averred in the bill that the bank stopped apply them to the use of William B. Slocum, or to payment on the 20th February, 1865, and never repay them over to him (1 R. S. 729, S 55), but they were sumed. The affairs of the bank were closed up under directed “to permit and suffer” him “to have, re- an assignment made May 24, 1866, and which paid ceive and take the rents” and profits. They had no only a small percentage upon its liabilities. The case discretion to exercise. They could not refuse the is thus brought directly within our former ruling, but permission, and they could in no way exercise any con- it is insisted that the act of 1869 is unconstitutional, trol over the rents and profits. That such a trust is because it impairs the obligation under which the comcondemned by the statute has never been doubted. plainants claim, and as that question was not directly Parks v. Parks, 9 Paige, 107; Jarvis v. Babcock, 5 Barb. passed upon in the other case, we are asked to consider 139; Beekman v. Bonsor, 23 N. Y. 298, 314, 316. William it now. The argument is that as the statute of limitaB. Slocumi was entitled to the possession of the lands tions in force when the liability of the defendauts was and to the rents and profits thereof during his life, and incurred did not bar an action until the expiration of hence the statute vests the legal title in him for the twenty years from the time the action accrued, a statsame term. 1 R. S. 727, $$ 47, 49; Craig v. Craig, 3 ute passed subsequently, reducing the limitation, imBarb. Ch. 77. It follows, therefore, that the judge | paired the contract, and was consequently void. ment was a lien, and that the life estate was affected This court has often decided that statutes of limithereby, and for this defect the motion should have tation affecting existing rights are not unconstitutional been granted.
if a reasonable time is given for the commencement The order of the Special and General Terms should of an action, before the bar takes effect. Hawkins be reversed, with costs in the Supreme Court and this v. Barney, 5 Pet. 466; Sohn v. Waterson, 17 Wall. 599; court to be paid by the plaintiff to Thompson. All Christmas v. Russell, 5 id. 300; Jackson v. Lamphire,
3 Pet. 290; Sturgis v. Crouninshield, 4 Wheat. 206.
And it is difficult to see why, if the legislature may CONSTITUTIONALITY OF STATE LEGISLA
prescribe a limitation where none existed before, it may TION AFFECTING STATUTES
not change one which has already been established.
The parties to a contract have no more a vested interest OF LIMITATION.
in a particular limitation which has been fixed, than they
have in an unrestricted right to sue. They havo no SUPREME COURT OF THE UNITED STATES, OCTOBER more a vested interest in the time for the commenceTERM, 1877.
ment of an action than they have in the form of the
action to be commenced; and as to the forms of action TERRY, appellant, v. ANDERSON.
or modes of remedy, it is well settled that the legislaBy a statute of limitations of the State of Georgia, actions
ture may change them at its discretion, provided against a stockholder of a bank to enforce his individ- adequate means of enforcing the right remain. We ual liability were not barred until twenty years from the time the action accrued. By an act of the legislature of
have had occasion to consider this subject at the presGeorgia, passed March 16, 1869, it was provided that ent term, iu Tennessee v. Sneed, not yet reported. such actions, accrued before June 1, 1865, should be barred if not commenced before January 1, 1871.
In all such cases the question is one of reasonableHeld, (1) that the legislature had a constitutional right ness, and we have, therefore, only to consider whether to shorten the statute of limitations as to actions upon contracts already made, a reasonable time being left to
the time allowed in this statute is, under all the cirenforce the contract; (2) and that the time given was cumstances, reasonable. Of that the legislature is reasonable.
primarily the judge and we camot overrule the deciPPEAL from the Circuit Court of the United sion of that department of the government, unless a
States for the Southern District of Georgia. palpable error has been committed. In judging of Action to euforce the individual liability of stock- that we must place ourselves in the position of the holders of a bank. Sufficient facts appear in the legislators and must measure the time of limitation opinion.
in the midst of the circumstances which surrounded Mr. Chief Justice Waite delivered the opinion of them, as nearly as possible; for what is reasonable in
Here nine months and seventeen days were given to due a corporation, which accrued prior to that date sue upon a cause of action which had already been and was not barred when the act was passed, must be ruuning nearly four years or more. The section of brought by January 1, 1870. The case of Cherry v. the statute affecting the present case is as follows: Lamar, decided by the Supreme Court of Georgia, in
* That all actions on bonds or other instruments January, 1877, is not, as we understand it, at all in under seal, and all suits for the enforcement of rights conflict with this. There the charter of the bank accruing to individuals or corporations under the made a call by the directors, and sixty days' notice of statute or acts of incorporation, or in any way by
it to the stockholders, conditions precedent to the coloperation of law which accrued prior to 1st June, 1865, lection of unpaid stock subscriptions, and it was connot yow barred, shall be brought by 1st January, 1870, sequently held that the statute did not commence to or the right of the party, plaintiff or claimant, and all run against such a liability until the requisite call had right of action for its enforcement shall be forever been made and notice given. Neither in this case nor barred."
in Terry v. Tubman does any such provision of the The liability to be enforced in this case is that of a charter appear. For all that is shown in the record, stockholder, under an act of incorporation, for the the stockholders were liable to suit at any time for the ultimate redemption of the bills of a bank swept away recovery of the balance due from them. by the disasters of a civil war, which had involved These complainants are neither of them judgment nearly all of the people of the State in heavy pecuniary creditors of the bank. In a suit instituted by the asmisfortunes. Already the holders of such bills had signees to close up the assignment, they proved their had nearly four years within which to enforce their claims, and the amount due them was found for the rights. Ever since the close of the war the bills had purposes of a dividend. The finding was sufficient for ceased to pass from hand to hand as money, and had
the purposes of distribution, but it has none of the become subjects of bargain aud sale as merchandise. characteristics of a judgment or decree, to be enforced Both the original bill-holders and the stockholders had as against any thing but the fund which the court was suffered from the same cause. The business interests
then administering. of the entire people of the State had been overwhelmed
We see nothing to take this case out of the operation by a calamity common to all. Society demanded that
of the decision in Terry v. Tubman, and the decree of extraordinary efforts be made to get rid of old embar
the Circuit Court is, therefore, affirmed. rassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influ
UNITED STATES SUPREME COURT ABSTRACT. ence of constitutional limitations. For this purpose
. ASSIGNMENT. the obligations of old contracts could not be impaired,
i Claims against United States not assignable.-Claims but their prompt enforcement could be insisted upon
against the United States cannot be assigned so as to or an abandonment claimed. That, as we think, has
enable the assignee to bring suit in his own name in been done here, and no more. At any rate, there has
the Court of Claims. This is the rule of the common not been such an abuse of legislative power as to jus
law, and the statute of February 26, 1853 (10 Stat. 170, tify judicial interference. As was said in Jackson v.
$ 10), also forbids such assignments. Beecher v. SueetLamphire, supra; "The time and manner of their
zer, 15 Minn. 437; Sim's Case, 1 C. C. 12; Cooper's Case, operation (statutes of limitation), the exceptions to
id. 87; Cote's Case, 3 id. 65. Aud the act creating the them, and the acts from which the time limited shall
Court of Claims did not work a repeal of the act of begin to run, will gewerally depend upon the sound
1853, in this respect. Judgment of Court of Claims discretion of the legislature, according to the nature
reversed. United States, appellant, v. Gillis. Opinion of the titles, the situation of the country, and the
by Strong, J. Bradley and Field, JJ., dissent. emergeucy which leads to their enactment." The Supreme Court of Georgia in George v. Gardner,
BAILMENT. 49 Ga. 450, held that the time prescribed in this act
Bailee for custody not presumed to have authority to was not so short or unreasonable under the circum
sell goods.—Plaintiff, the owner of certain whisky, put stances as to make it unconstitutional, and the Circuit
it in the custody of M. M. was not employed as a Court of the United States for the southern district of
salesman, and while plaintiff remained in the neighGeorgia held to the same effect in Samples v. The Bunk,
borhood he made no sales, but made small sales in the 1 Woods, 529. We are satisfied with these conclusions.
absence of plaintitt. When plaintiff left the place he The circumstances under which the statute was passed left the whisky in charge of M. Held, that none of seems to justify the action of the legislature. The
these facts tended to show that M. was clothed by time, though short, was sufficient to enable creditors
plaintiff with any authority to sell the whisky. A to elect whether to enforce their claims or abandon bailee for custody has not the judicia of an agent to them.
sell. An agent's authority cannot be proved by his This disposes of the question arising upon the indi
own acts alone, and sales only do not prove authority vidual liability of the stockholders under the charter.
to sell. Judgment of Supreme Court of Colorado It still remains to consider the cases of the stockhold
affirmed. Thatcher, plaintiff in error, v. Kaucher. ers whose subscriptions were not paid iu full at the
Opinion by Strong, J. time of the failure of the bank. For this purpose it is not necessary to decide whether this liability passed
FIRE INSURANCE. to the assignees under the assignment. If it did not, Conditions in policy as to ownership.-In a fire insurand the present complainants have the right to sue for ance policy on buildings, issued to plaintiff below, it it, their action is barred by the statute of 1869. It was was provided that “if the interest of the insured in a debt due the corporation, June 1, 1865, and by section the property be any other than the entire uncon6 of that statute all actions upon any debt or liability ditional and sole ownership of the property for the use and benefit of the insured, or if the buildings in- question in such cases is, (1) whether the damage was sured stand on leased ground, it must be so represented occasioned entirely by the negligence or improper conto the company and so expressed in the written part duct of the defendant, or (2) whether the plaintiff of the policy, otherwise the policy shall be void.” himself so far contributed to the misfortune by his The plaintiff owned the land upon which the buildings own negligence or want of ordinary care and caution, were erected in fee simple, and the premises were that but for such negligence or want of care and cauleased to another party for a term of years. Nothing tion on his part the misfortune would vot have hapwas expressed in the policy to indicate that the interest pened. In the former case the plaintiff is entitled to of the insured was other than the entire unconditional recover. In the latter he is not. Tuff v. Warman, 5 and sole ownership of such property, or indicating Scott's C. B. (N. S.) 572; Butterfield v. Foster, 11 East, that most of the buildings stood on leased ground. 60; Bridge v. G. J. R. R. Co., 3 M. & W. 244; Davis v. Held, that the condition of the policy was not violated, Mann, 10 id. 546; Clayards v. Dethic, 12 Q. B. 439; Van and plaintiff was entitled to recover on the policy in Lien v. Scoville Co., 14 Abbot's Pr. (N. S.) 91; Insurcase of loss. Judgment of United States Circuit Court, ance Co. v. East Bost. Co., 106 Mass. 149. Judgment N. D. Illinois, affirmed. Lycoming Fire Ins. Co., plain- of Supreme Court of District of Columbia reversed. tij in error, v. Haven. Opinion by Clifford, J.
Baltimore & Polomac R. R. Co., plaintiff in error, v.
Jones. Opinion by Swayne, J.
2. Facts constituting contributory negligence.-Plain1. Reinstatement of policy: representations as to tiff, a laborer in the employ of defendant, when about health: when representations not continuing.– One to leave the place where he was working on one of dewhose life had been insured in a company at Newark, fendant's trains, was told by the person superintendNew Jersey, but who had failed to keep up the pre- ing him, who was also conductor of the train, to get miums, so that the policy lapsed, applied for a rein- on anywhere, as the train was in a hurry to leave. statement of the policy to the agent at Washington, Plaintiff got on the pilot of the locomotive, which was D. C., on the 1st of October. He paid the premium
a dangerous place to ride. While on the trip he was and gave his certificate of health to the agent on that injured by a collision between the locomotive and day, and the physician of the company signed his cer
some other cars of defendant, caused by defendant's tificate of examination, all of which was forwarded at
negligence. The proper place for plaintiff to ride was once to the company. On the 12th of October the
in a box-car on the train provided for the employees; company returned its renewal receipt dated back to
he had been told preriously to always ride there and the time of the lapsing of the policy, and this receipt
had been forbidden riding on the pilot of the locomowas, on the 14th, given to the insured, who made no
tive. No one of those in the box-car were injured, statement as to his health then. In an action on the
and plaintiff would not have been if he had ridden policy, it was claimed by the company that between there. Held, that plaintiff was guilty of contributory the 1st and the 14th of October there was a change in
negligence and could not recover of the defendant for the health of the insured that would have caused the
the injury. Hickey v. R. R. Co., 14 Allen, 429; Todd rejection of the policy, and the court was, at trial,
v. R. R. Co., 3 id. 18; S. C., 7 id. 207; Gavett v. R. R. asked to charge that the representation, as to health,
Co., 16 Gray, 501; Lucas v. R. R. Co., 6 id. 64; Ward v. was a continuing one up to the 11th, which request was
R. R. Co., 2 Abbot's Pr. (N. S.) 411; Galena R. R. v. refused. Held, that such refusal was no error. The
Yaruood, 15 Ill. 468; Dogget v. R. R. Co., 34 Iowa, jury would have been warranted in finding that the 285. Ib. contract was understood and intended by the parties
STATUTE OF FRAUDS. to take effect by relator to the 1st of October, and the question was proper for submission to the jury. Colt Agreement not signed by party to be charged: performv. Phænix Fire Ins. Co., 54 N. Y. 597; Tipton v. Fert. ance by other party: admission of agreement in other ner, 20 id. 423; Lightbody v. N. A. Ins. Co., 23 Wend. writing: evidence: parties.- An agreement was made 24; Perkens v. Wash. Ins. Co., 4 Cow. 465; Cooper v. reading as follows: “This is to certify that tbe underPacific M. L. Ius. Co., 3 Big. Ins. R. 656 ; 7 Nev. 616; signed have taken two thousand two hundred and five Carpenter v. M. S. Ins. Co., 4 Sandf, Ch. 408; Am. head of cattle, valued at thirty-six thousand six hundred Horse Ins. Co. v. Patterson, 28 Ind. 17; City of Daven- and eighty-one dollars and sixty cents on shares from port v. Peoria M. and F., 17 Iowa, 270; Le Farom v. George C. Beckwith; time to expire on the fifth day Insurance Co., 2 Big. Ins. R. 158. Judgment of Su- of December, one thousand eight hundred and seventypreme Court of District of Columbia affirmed. Mu- two; then George C. Beckwith to sell the cattle and tual Benefit L. Ins. Co., plaintiff in error, v. Higgin
retain the amount the cattle are valued at above. botham, administrator. Opinion by Hunt, J.
Of the amount the cattle sell at over and above the 2. Trial: ruling working no harm not error.
said valuation, George C. Beckwith to retain one-half, Where the disposition of a subject by a judge can work
and the other half to be equally divided between C. no legal injury to the party objecting to it, there is no W. Talbot, and Elton T. Beckwith, and Edwin F.
Starbird v. Barrons, 43 N. Y. 200; Pepin v. Beckwith.” This agreement was signed by the plainLachenmeyer, 45 id. 27; People v. Brandreth, 36 id. 191; tiff below, C. W. Talbot, and E. T. and E. F. BeckPorter v. Ruckman, 38 id. 211; Corning v. Troy Iron with, but was not signed by the defendant below, and Nail Works, 44 id. 577. Ib.
George C. Beckwith. Defendant took possession of
it and kept it, and wrote several letters in which he NEGLIGENCE.
referred to "the agreement” as binding. Plaintiff and 1. Rule as to, when both parties guilty of.-One who the two others siguing it performed their part of it, by his negligence has brought an injury upon himself but defendant refused to perform his part. In an cannot recover damages for it. But where the de- action by plaintiff for damages for defendant's breach fendant has been guilty of negligence also, in the same of the agreement, held, (1) that the letters were a reconnection, the result depends upon the facts. The cognition of the agreement, making it binding ou de
fendant (Johnson v. Dodgson, 2 Mees. & Welsb. 653; slight. Eng. High Court of Justice, Ch. Div., Nov. 13, Salmon Falls Co. v. Goddard, 14 How. 456), (2) that 1877. Heather v. Pardon (37 L. T. Rep. [N. S.] 393). parol proof was admissible to show that the agreement Proximate cause: when cause too remote.-Owing mentioned in the letters was the one in question, and to a landslide, defer:dants' engine was thrown into (3) that plaintiff was entitled to maintain a separate Oil creek. Barrels of oil bursted and took fire and action for his equal share of the profits. Servante v. destroyed plaintiff's property on a lot adjoining the James, 10 B. & C. 410. Judgment of Supreme Court railroad. Held, that the negligence of defendants' of Colorado affirmed. Beckwith, plaintiff in error, v. engineer in not seeing the obstruction, so as to avoid Talbot. Opinion by Bradley, J.
the accident, was not the proximate cause of plaintiff's loss; it was too remote. Sup. Ct., Pennsylvania, Nov.
19, 1877. Hoag v. Lake Shore & Mich. So. R. R. Co. NOTES OF RECENT DECISIONS.
Streets and highways : occupation of, by corporation.Citizenship: Indians not connected with tribe and
The occupancy of a public street or highway by a corpaying tax, citizens.-Indians not connected with any
poration, carries with it the obligation to keep it in organized tribe, and who are taxed, are citizens of the
good repair. Sup. Ct., Pennsylvania, Nov. 19, 1877. United States and of the State where they reside, and
Penna, R. R. Co. v. Borough of Irwin. such an Indian residing in New York State is entitled
Warranty: matter of description.—“Received from under the provisions of its Constitution to vote therein.
A the sum £60 for a black horse, rising five years, quiet (Dredd Scott v. Sandford, 19 How. 404; Jackson v.
to ride and drive, and warranted sound up to this date, Smith, 20 Johns. 187.) U. 8. Circ. Ct., N. D. New
or subject to the examination of a veterinary surYork, Dec., 1877. United States v. Elm.
geon." Held, not to be a warranty that the horse Criminal law : constructive offense.-Obtaining an
was quiet to ride and drive. (Budd v. Fairmanor, entrance to a banking-house by trick and fraud, an
8 Bing. 48.) Eng. High Court of Justice, Com. Pleas attempted robbery of the bank was frustrated by the
Div., Nov. 23, 1877. Anthony v. Halstead (37 L. T. firmness of the cashier. Held, that evidence of the
Rep. [N. S.] 433). fraudulent conspiracy by which entrance was obtained, coupled with the evident felonious intent, was suffi
NEW BOOKS. cient to sustain the allegation of constructive " breaking and entering.” Sup. Ct., Pennsylvania, Oct. 1,
ABBOTT'S NEW CASES. VOL. II. 1877. Johnston v. Commonwealth (Leg. Intel.).
New Cases selected chiefly from Decisions of the Courts of the Jurisdiction : of United States Circuit Court: what State of New York, with Notes, by Austin Abbott. With it depends upon.-The Circuit Court has not jurisdic- an Analytical Index to all points of law and practice
contained in the standard reports of New York, issued tion of a case irrespective of the citizenship of the
during the period covered by this volume. Vol. II. parties unless it arises out of a law of the United
New York: Ward & Peloubet, 1877. States; nor is an averment that an action arises out of HIS such law sufficient to confer jurisdiction, but it must though not as many as we might expect from the appear from the facts stated that it does so arise. The wide field from which the cases are selected. Among original jurisdiction conferred upon the Circuit Courts those worthy of mention we notice these: Grady v. by section 1 of the act of March 3, 1875 (18 Stat. 470), Crook, p. 53. Where one offers a reward for lost propdoes not include an action arising out of the contracts erty, he is bound to pay it upon the return of the or dealings of the parties, although upon its trial a property, pursuant to the offer, and the fact that it is question may arise involving the proper construction returned by a lawyer who refuses to give the name of of a law of the United States. U. S. Circ. Ct., Ore- the tinder, his client, makes no difference. Moore v. gon, Nov. 26, 1877. Douell v. Griswold (Chio. Leg. Jackson, p. 211. Rafts of timber continuously moored News).
along a navigable stream constitute a purpresture, and Nuisance : noise and vibration of machinery: injunc
a public nuisance is thereby created. An agreement tion: increased noise and vibration : form of injunc
by one so mooring logs to pay the owner of the land tion : reasonable user of business premises.—The plain- adjoining the stream therefor is invalid, and cantiffs, a firm of solicitors, were the owners and occu
not be enforced. Grocers' Bank v. Penfield, p. 305. A piers of offices adjoining the defendants' steam print-pre-existing debt is a sufficient consideration for the ing works, which had been working from 1848 to May,
transfer of accommodation paper, and no new con1875, without any complaint by the plaintiffs of nui- sideration need be shown. Cassidy v. Leitch, p. 315. sance occasioned by the noise and vibration of the ma- The authority of an attorney named in the record of a chinery, though a slight noise and vibration could at foreign judgment as appearing therein must be pretimes be heard and felt. In May, 1875, the defendants sumed until disproved. Shipman v. Beers, p. 435. As made some alteration in their machinery, which the between adjoining owners who are strangers to each plaintiffs contended increased the noise and vibration, other, one does not, by building on the line of his own and they accordingly commenced an action for an in- ground, acquire a right to light from his neighbor's junction to restrain the defendants from working ground. Hazzard v. Wells, p. 444. A creditor, who their machinery so as to occasion a nuisance to the receives from his debtor the notes of third parties as plaintiffs. Held, that the plaintiffs were entitled to security, is bound, in reference to presentation, dean injunction restraining the defendants from work- mand and notice for the purpose of fixing liability, ing their machinery so as to occasion a nuisance or and to enforce the collection of the notes, to the same injury by vibration to any greater degree than had diligence as is required of a bailee for hire. Numerous previously been occasioned up to May, 1875. Semble, notes are appended to cases throughout the volume, tbe fact that noise and vibration from machinery has some of them, as, for example, that to Brague v. Lord, never been complained of for more than twenty years, p. 8, upon the competency of witnesses under section does not deprive a neighbor of his right to prevent 399 of the old Code, being of considerable length, and any increased noise, even though such increase be citing numerous authorities. The head-notes to the
cases are somewhat more full than necessary, and that Mr. Bigelow's " Table of Cases Cited” was what many of the statements of fact might be abridged it purports to be. It seems, however, that it is not without impairing the value of the report. The ana- wbat it purports to be, as it does not contain Holbrook lytical index to the standard reports appended to the v. Connor, although it is twice cited in the book. reported cases, which is excellently done, is a very Mr. Bigelow’s explanation of his reason for omitting valuable part of the volume, as it answers the pur- Ellis v. Andrews is not satisfactory. The “four pose of a digest of the case law of the State during authorities " cited “to the point decided in that case" the period it covers. It omits, however, the contents are Harvey v. Young, Yelv. 20; Davis v. Meeker, 5 of Howard's Reports, and is, therefore, incomplete. Johns. 354; Medbury v. Watson, 6 Meto. 246, and There is no sufficient excuse for such omission, for “ Noetting” (should be Nætling) v. Wright, 72 TU. 390. Howard's Reports are quite as “ standard” as some Now, neither of these cases is an "authority" "to of the others not excluded, and since lawyers seem to the point decided " in Ellis v. Andrews. The purport find them worth buying, neither digest makers nor of Harvey v. Young - a case which occupies only a authors can afford to ignore them.
few lines in the report was fairly stated by Buller,
J., in Pasley v. Freeman, 3 T. R. 57, who said "the CORRESPONDENCE.
true ground of that determination was that the asser
tion was a mere matter of judgment and opinion; of a THE GRAMMAR OF THE NEW CODE.
matter of which the defendant had no particular To the Editor of the Albany Law Journal :
knowledge, but of which many men will be of many SIR-The answer to "T.C." is not full enough. “An
minds and which is often governed by whim and Eulightened Ignoramus” refers therein simply to the caprice. Judgment or opinion in such case implies no use by the legal profession of the indicative form of knowledge. And here this case differs materially from expression in lieu of the subjunctive. This is not
that in Yelverton. My brother Grose considers this conclusive, it being a well-known fact that lawyers assertion as mere matter of opinion only, but I differ sometimes sacrifice grammatical correctness for con
from him in that respect. For it is stated on this cise clearness.
record that the defendant knew that the fact was false. About the year 1849, there was published in this The case in Yelverton admits that if there had been country a work of some merit, inasmuch as it has since fraud it would have been otherwise." Medbury v. Watgone through several editions. I allude to Webster's son is not only not a “leading case" on this point, Dictionary. This dictionary has an introduction which
but it is not strictly an authority, since the point there has been said to be good. Speaking of the “Progress
was whether a third person was liable to a vendee for and changes of the English Language,” the author has
false and fraudulent representations made by him as undertaken the consideration of the question opened
to the value of property bought, and the court held
that he was. Davis v. Meeker, held simply, that one by T. C. He says: “The subjunctive form of the verb if he be; though he fall; * * which was
purchasing a wagon, on sight, has no action for assergenerally used by the writers of the sixteenth century,
tions that it was worth more than its real value. In
Nætling v. Wright, the court held that the first three was, in a great measure, discarded before the time of Addison.” And in support of his assertion, Mr. Web
counts of the declaration did not present a cause of ster gives examples from Locke, and even from Dr.
action, because, as expressly stated by the court, they Lowth, who advocated the use of the subjunctive in
could "only be regarded as expressions of opinion as his grammar published in 1762. He then culls many
to values, for which no action can be maintained”;
while the other counts were disposed of solely on instances of a like disregard for the subjunctive in its past and present tenses from Lord Chatham, Fox, Pitt,
the ground of bad pleading. Burke, Johnson, Franklin, Washington and Chancellor
The cases cited by Mr. Bigelow, then, are authorities Keut; however, “T. C." can read it all.
only for the statement that an expression of an opinion NEW YORK, Dec. 29, 1877.
is not a ground of action. But not so the case of Ellis
V. Andrew. There the complaint alleged that the deBIGELOW ON FRAUD.
fendant fraudulently stated to plaintiff that the stock
of the Congress and Empire Spring Company was To the Editor of the Albany Law Journal:
worth at least eighty per cent upon the par value SIR– Will you be good enough to permit me to say
thereof, which statement said plaintiff believed to be to your readers that Holbrook v. Connor is twice cited
true, and relying thereupon purchased from the said in my book on Fraud (p. 17), and indirectly criticised.
defendants $25,000 of said stock, and paid therefor That is, indeed, an important case, and to bave failed
$20,000 in cash, whereas, in truth, the said stock was to refer to it would have been unpardonable. As to
not then worth over fifty per cent, and which fact was Ellis v. Andreus, four authorities are cited (p. 18), to
then well known to said defendant, whereby said plaiuthe point decided in that case; three of them being tiff sustained damage, etc. On demurrer, it was held strictly leading, and the fourth more recent even than
that the complaint did not show a cause of action. In Ellis v. Andrews. And inasmuch as the point decided delivering the opinion, Grover, J., said: “The asserin this case is laid down in a dozen other cases referred to in connection with the four, and would be readily
tion by the defendants that the stock was worth eighty
per cent of its par value cannot, I think, be regarded as inferred from the language of my book, even if tbere
the expression of an opinion as to its value, for the were no direct statement on the subject, it was
reason that it is a verred that it was fraudulently made, deemed legitimate to omit the case decided in New
and that they (defendants) then knew that it was not York. The doctrine is fundamental.
worth more than forty per cent. I think it must be MELVILLE M. BIGELOW. Boston, Dec. 31, 1877.
regarded as a false statement of the value made for the
purpose of obtaining a higher price for the stock than [We made the statement as to the omission of a they knew it was worth." reference to Holbrook v. Connor, on the supposition Now, Mr. Bigelow will, no doubt, concede that from