Gambar halaman



exchange was, a charge of one-quarter of one per cent in which he stated that he desired a steam road and iu addition to the statutory rate of interest would not would use his endeavors to enable the company to use be sufficient to authorize a forfeiture. Judgment of steam. The company claimed to have the right to lay Superior Court of city, etc., of New York affirmed, its track on the avenue without compensation uuder Wheeler v. Union National Bank of Pittsburg. Opin- the act mentioned. In 1874 (chap. 507), a law was ion by Harlan, J.

passed permitting the use of steam. Held, it could not

be inferred that plaintiff, by his acts and declarations, Appeal: reversal not allowed for irregularities work- surrendered his legal right to the land, or authorized ing no harm.-Where a reference was made to a master the company to lay its track there without compensato compute the amount due, and the proceeding was

tion. Judgment below reversed. Murdock v. Proswholly unnecessary, it being the duty of the court to pect Park and Coney Island Railroad Co. Opinion by compute the amount itself, or have it done by the Andrews, J. clerk or the complainant's counsel, held, that the 2. License given to railroad company may be revoked. decree would not be reversed on the ground that appel- - The authorities in this State seem to be decisire lant had no notice of the time of the master's sitting, or that a license granted a railroad company to enter land of the filing of his report. This court will not reverse a and construct its railroad, operates simply to justify decree in chancery for an immaterial departure from the entry, and is revocable at the pleasure of the the technical rules, when it can see that no harm re- licensor. Ib. sulted to the appellant. Decree of United States [Decided May 21, 1878. Reported below, 10 Hun, 598.] ('ircuit Court, Minnesota, affirmed. Allis, appellant, v. Northwestern Mutual Life Insurance Co. Opivion by

1. General and special: negotiable warehouse receipts. Miller, J.

-A maltster to whom barley is delivered for malting

upou a general contract, though he may have a colorable COURT OF APPEALS ABSTRACT.

right of lien upon any specific quantity of barley in COMMON CARRIER.

his possession for the whole amount due upon the Not relieved from liability because shipper violutes general ntract against the one with whom such conlaw: fictitious firms.- A wrong-doer is not protected tract was made, if he issues negotiable warehouse in the invasion of the rights of another party because receipts entitling the holder to the delivery of a specisuch party happens to be transacting business in vio- fied quantity of barley on“ payment of the charges lation of a special statute. Accordingly, where plaiu- accrued thereou," only has a lien against an innocent tiff, who was carrying on the business of selling car- holder of the receipt for value, and without notice, for riages in the name of a firm in violation of the statute the charges on the specific barley described. Judgment against fictitious partnerships (3 Rev. St., 5th ed., $ 42), below affirmed. White v. Hoyt. Opinion by Allen, J. shipped a carriage upon defendants' railroad, directed

2. Estoppel: equivocal promise: consideration. to the firm, held, that defendant would be liable as

Where, however, an innocent holder for value of such carrier to plaintiff for injury done to such carriage receipt was informed that the maltster claimed a lien in the course of transportation, and plaintiff's viola- upon the specific barley described for the entire tion of the statute would be no defense. Judgment amount due on the contract (the original owner haviug below affirmed. Wood v. Erie Railway Co. Opinion promised the maltster that the holder would pay such by Miller, J.

amount), and such holder did not deny his liability, [Decided January 22, 1878. Reported below, 9 Hun, but in answer to the maltster's message, stating 648.]

that the barley would be delivered only upon the CONTRACT.

holder assuming such lien, wrote an equivocal letConstruction of: sale of " abouta specified quantity :

ter, which was capable of being interpreted into a words of expectancy, not of quantity.— Defendants

promise to assume liability, held that such holder, agreed to take “all the oil cake made by the plaintiffs at

upon receiving the barley, became liable for the whole their mill" during six months, the plaiutiffs to have the

amount due, and for which a lien was claimed. Hold, option of reserving not to exceed fifty tous per month

that the release of the barley was a sufficient confor their local trade. The contract also stated that the

sideration for the agreement. Ib. plaintiffs agreed to sell defendaut about 2,000 tons of oil

[Decided May 21, 1878.] cake to be delivered at the rate of about 350 tons per month. Held, that the words stating the amount were words of expectancy and not of quantity, and that the 1. Provisions forfeiting policy for non-payment of precontrolling stipulation of the contract as to quantity, miums: when company estopped from insisting on.- A was that which called for a sale and purchase of all that life insurance policy contained a provision forfeiting the mill made for the six months, and that the defend- it in case the premium was not paid when due. The ants were bound to take that amount less what plaiu- | insured was entitled to share in the profits, and the tiffs kept in the use of their option. Judgment below amount of premium at any given pay day could be affirmed. Kellogg v. Norman. Opinion by Folger, J. ascertained only by the company. The insured lived !Decided May 28, 1878.]

at a place distant from the office of the company, and LICENSE.

transacted business with it for six years through a What does not constitute : railroad upon highway.-- local agent of the company located at her place of An act of the Legislature (Laws of 1873, chap. 531) pro- residence, who, each pay day, was furnished with vided for the laying out of an avenue and the con- statements of the amount then due from the insured. struction of a horse railroad thereon by a company, This agent was, in March, 1874, removed, and no one but the use of steam power was not allowed. Plain- put in his place. Variations from the terms of the tiff, through whose lands the avenue was to runi, had policy had by mutual agreement been made on stre several interviews with the president of the company, eral occasious. Payment had been received by the



The following decisions were handed down Tuesday,

company by post-office order without objection. In affirmatively. Judgment below affirmed. Sayles v. March, 1874, seven days before the premium became Sims. Opinion by Church, Ch. J. due, the insured wrote the company, asking for a state- [Decided May 21, 1878.] ment of the amount of premium to become due, and inclosing a post-office order which she believed would

Provision thut corporations shall not plead, extends to cover the amount. The company did not answer this

their sureties.—The provisions of Laws 1850, chapter letter until after the day of payment had passed.

172, forbidding corporations to set up the defense of Held, that the company was estopped from claiming

usury, includes collateral contracts of individuals as that the insured had failed to pay the premium when

securities, guarantors or indorsers for corporations. due, and could not insist on a forfeiture of the policy

Accordingly where defendant indorsed a note for the for such non-payment. Judgment below affirmed.

accommodation of a corporation, which borrowed Meyer v. Knickerbocker Life Insurance Co. Opinion

money thereon, held, that he could not set up the deby Folger, J.

fense of usury. (Rosa v. Butterfield, 33 N. Y. 664, fol2. Tender of premiums when not necessary to keep lowed.) Judgment below affirmed. Stewart v. Bramalive policy.-The insured repeatedly offered to pay hall. Opinion by Andrews, J. the necessary premiums, but the offers were refused,

[Decided June 4, 1878. Reported below, 11 Hun, 139.] the company declaring that the policy had ceased. Held, that the insured need not on each following pay day make formal offer of payment to keep the policy


НЕ [Decided May 21, 1878.]

June 11, 1878:

Baldwin v. Liverpool and Great Western Steam. Co. Transferee for precedent debt not holder for value.

(limited), No. 254, judgment affirmed; no opinion.A party taking a promissory note in payment of a

Burleigh v. Center, No.265, judgment affirmed; opinion precedent debt is not a bona fide holder for value so as

per Curiam.- -Curtis 1. Delaware, Lack. and Western

R. R. Co., No. 2022, judgment affirmed; opinion by to cut off the defense that the person transferring the

Miller, J. note had wrongfully diverted it from the purpose for

- Fillgrave v. Chappell, No. 261, judgment which it was intrusted to him. Judgment below re

affirmed; no opinion.— Goodwin v. Simonson, No. versed. Potts v. Meyer. Opinion by Church, Ch. J.

244, order affirmed; opinion by Miller, J.-Heiden[Decided May 28, 1878.]

heimer v. Mayer, No. 228, judgment affirmed; no opin

ion.-Hiscock v. Harris, No. 157, order affirmed and REMOVAL OF CAUSE.

judgment absolute for defendants on stipulation, with Corporation entitled to benefit of act of 1807 : verifica

costs; opinion by Audrews, J.-Jackson v. Johnson, tion by president of corporation sufficient.-The pro

No. 232, judgment reversed and new trial ordered, unvision of the United States Statute of March 2, 1867,

less plaintiff stipulates to reduce recovery in the sum for the removal of causes to the Federal courts where

of $847.13 and interest from March 3, 1868, in which the action in the State court is between citizens of

event judgment as so modified affirmed, without costs differeut States, applies to corporations as well as indi

to either party in this court; opinion by Andrews, J. viduals, and a petition by a corporation, signed in its

- Tyng v. Halsted, No. 412, dismissed, with costs of name and verified by its president, accompanied by an

one appeal only; opinion by Church, Ch. J. affidavit of the president setting forth the required facts, is a compliance with the provision of the act requiring a citizen to make and file such petition and

NEW BOOKS AND NEW EDITIONS. affidavit, etc., and entitles the corporation making it

DALY's REPORTS, VOL. VI. and complying with the statute in other respects to a removal of the cause. The case of Cooke v. State Na

Reports of cases argued and determined in the Court of Com.

mon Pleas for the City and County of New York. By tional Bank, 52 N. Y. 96, in form holding that a cor

Charles P. Daly, LL. D., Chief Justice of the Court.

Vol. VI. New York: Baker, Voorhis & Co., 1878. poration could not make the affidavit required by the act of 1867,

THERE are quite a number of interesting cases in final disposition of that case, and it was not intended

this volume, among which we will notice these: to lay down a rule which would govern other cases.'

Smith v. Reed, p. 33: A boarding-house keeper was Judgment below reversed. Mix v. Andes Insurance

held liable for the loss of a boarder's property by theft, Co. Opinion by Earl, J.

committed by a stranger permitted by a servant, in the [Decided May 28, 1878. Reported below, 9 Hun, 397.]

employ of the boarding-house keeper, to go into the

boarder's room. Hoffman v. Gallaher, p. 42: Plaintiff SURETYSHIP.

agreed to paint a portrait of defendant, which should Release of indorsement consideration for contract : be a likeness satisfactory to his friends. In an action contribution : burden of proof.-One Sayles and plain-| for the price of the portrait, held that it was not comtiff made a joint and several note for the benefit of petent to exhibit the portrait to the jury to enable Sayles, but the fact that plaintiff signed as surety was them to determine if it was a satisfactory likeness. not expressed. This note was indorsed by defendant, McGuire v. N. Y. C. & H. R. R. R. Co., p. 70: In an who afterward signed as surety. Held, (1) that a re

action for personal injuries for negligence, a stipulalease of the contract of indorsement would furnish a tion by defendant's attorney as a condition for postsufficient consideration for the contract of suretyship, ponement, that the action should not abate if plaintiff and (2) that defendant was presumptively a surety for died, held valid and enforceable. Matter of Fincke, both Sayles and plaintiff; and in an action for contri- p. 111: The court may summarily order an attorney bution on the ground that defendant was co-surety to pay to his client money collected in a suit, and if with plaintiff for Sayles, plaintiff must show that fact the attorney claims a lion for professional services, he

was merely pro forma to facilitate the THER


is not entitled to a jury to determine his claim. Sprague the changes made are very unlike. The author of this v. W.U. Tel. Co., p. 200: A failure to send a telegraph work has, therefore, very properly confined his labors message at all is not a “mistake or delay in delivery or to an attempt to show what are the rights and liabilinon-delivery,” within the meaning of the usual stipu- ties of married women in Pennsylvania alone. But lation in blanks for telegraph messages. Devlin v. the value of his book will not be confined to that State O'Neil, p. 305: A sale of goods to be disposed of by the only. Several other States have modeled their legisvendee at retail if conditioual, is fraudulent and void lation upou that of that State, and in inany of the as to creditors of vendee. Leviness v. Post, p. 321: A States those rules of the common law which still preblacksmith was held liable for the unskillfulness, in vail in Pennsylvania are yet in force. The author in shoeing a horse, of his servant, who was not employed the treatise before us first considers who is a married to shoe horses, but who undertook the work. Richard | woman, defining what constitutes marriage, what are v. Boas, p. 460: The certificate of protest of a notary voidable marriages, and what void ones. He next to a foreign bill of exchange must have the impression explains what are the reciprocal obligations of husband of a seal upon the paper itself, or upon some adhesive and wife; then the nature and effect of the contracts substance attached thereto. Grosz v. Jackson, p. 463 : of married women, and how far she can impose liaChairs furnished for a theater of a pattern that had to bility upon her husband by her contracts, torts, frauds be made with reference to the size and shape of the and crimes. Next he shows how far she can deal with theater, and which were screwed to the floor, held, a her separate estate, what are her rights of property, part of the building and subject to a mechanics' lien. and her capacity to sue and liability to be sued. After Sulzbacher v. Dickie, p. 469: A landlord contracted a consideration of how far husbaud and wife may be with a builder to put a new roof on his building, with-witnesses for each other, he treats upon her rights to out binding the builder to protect the goods of the trade, to make a will, and in her husband's estate, and tenants as a matter of injury from the weather. Held, what acts and functions she may perform. The subthat the landlord was liable to the tenants for injury ject of divorce, as well as other matters incident to to their goods from a storm, caused by the builder the relation of marriage, are also treated upon. Trusts negligently leaving the roof without covering. Wynn are so intimately connected in Pennsylvania with the v. Schappert, p. 559: Delivery of a letter to a mail-car- estates of married women that the topic was not deemed rier in a city, held a deposit in the post-office. The foreign to the volume, and its principal features are reporting, we need not say, is excellently done, and

therefore given. The treatise is well written and must the book is well printed and bound.

prove of great use to the profession both in aud out of


An abridgment of the Revised Statutes of New Jersey, and

of the Amended Constitution. By A. V. D. Honeyman,
Counselor at law, author of "The new treatise on the JHE current number of the Law Magazine and Re-
Small Cause Court, etc." Somerville: Honeyman &
Rowe, 1878.

able articles. “Codification and Legal Education," by This is intended as a convenient manual of the stat

Mr. Justice Markby, of the Supreme Court, Calcutta, ute law of New Jersey for handy reference. It appears is an elaborate discussion of the very important subto be accurate, and to embrace all the public acts now in force in that State, and the small compass into ject of codification, and its effect upon legal education

with criticisms upon the views expressed by Lord which the substance of those acts is brought will ren

Cairns, Sir James Stephen, Sir Henry Thring and othder it a very valuable assistant to those who desire to readily ascertain what is the statute law governing Esq., is a consideration of the methods of construct

ers. “Practical Legislation,” by Francis Savage Reilly, any particular subject, and where it can be fouud.

ing statutes with some suggestions as to style and subThe subjects are arranged alphabetically, and a very ject-matter. “On the Study of the Law," by Charles full index at the end of the volume renders its con

Clark, Q. C., is a readable and valuable essay upon a tents very easily accessible. We cannot well see how

subject which is always of interest to the profession. any lawyer or justice of the peace in New Jersey can

“Criminal Procedure in Scotland and its Lessons for dispense with the use of this convenient little book.

England,” by Alexander Robertson, M. A., will be

found of practical value here as well as in England, HUSBANDS' LAW OF MARRIED WOMEN IN PENNSYL- the suggestions in respect to the discontinuance of the VANIA.

grand jury being upon a matter which has engaged The Law of Married Women in Pennsylvania, with a view of the attention of several State Legislatures and consti

the Law of Trusts in that State. By Clement M. Husbands, tutional conventions. “The Quarterly Notes,” “ReEsq., of the Philadelphia bar. Philadelphia: F. & W. Johnson & Co., 1878.

views of New Books," and other editorial departments, The law relating to married women was at one time

are, as usual, full of entertaining matter. quite uniform throughout the States where the common law prevailed. But statutory enactments have “Suffrage in Cities," and "The railway in relation of late years rendered it so dissimilar in different to public and private interests,” are the titles of two localities that a treatise adapted to the existing law of addresses delivered by Simon Sterne, Esq., the former one State could be only partially depended on in ex- in a popular course of lectures under the auspices of amining a case to be decided under the laws of another. the trustees of Cooper Institute, and the latter before The tendency of the legislation everywhere has, of the merchants and business men of New York, at course, been to emancipate the married woman from Steinway Hall. Like every thing written by Mr. the disabilities under which she was placed by the Sterne, these addresses are philosophical and scholarly English law, but the extent as well as the nature of and clothed in the most elegant diction.

All communications intended for publication in the in the precise form of the bill he has now voloed, LAW JOURNAL should be addressed to the editor, and the

and which has never given rise to any difficulty of name of the writer should be given, though not necessarily for publication.

application; but it now occurs to the governor that Communications on business matters should be ad

such amendments will “ require two mien to apply dressed to the publishers.

the Code.” The real reason of the governor's action was unquestionably a desire to make the Code as unpopular as possible, by preventing its defects from being remedied. For this nost unworthy object he has not scrupled to expose the profession

and the public to the difficulties and inconveniences ALBANY, JUNE 22, 1878.

arising under some of the sections of the Code which the amendatory act would have corrected.

The Albany Law Journal.


The Supreme Court judges of the Third Judicial E give elsewhere the resolution relating to the District have as much work to do as those in any


committee of the Senate of this State on the revision five of the districts, yet their pay is much less than of the statutes at its meeting on the 17th inst. It will what is received by their brethren in the first and be seen that the committee pronounces emphatically second districts, and no more than is paid to judges against any retrograde legislation on the matter and in the fourth, fifth, sixth, seventh and eighth disthat the Code now in force, as sought to be amended tricts, where the judicial office involves much less by the Legislature at the session which has just labor. To compensate these judges for the heavy closed, should be retained. The committee will, labors which they perform, the Legislature, at its therefore, report at the next session of the Legisla- recent session, passed an act which increased the ture the bill containing the nine supplementary amount paid them from $7,200, which they now rechapters with such amendments as may be deemed ceive, to $9,700 per annum. The governor has reexpedient. As the Senate remains unchanged until turned, without approval, this bill, giving, as reasons the close of the next session, there is no probability therefor, that enough is paid now. The judges in of repealing the thirteen chapters of the Code of the first district receive $17,500, and those in the Civil Procedure now in force. It is understood

county of Kings $13,000, while those in the second that a careful review of the nine chapters mentioned district, not residing in Kings county, receive $9,will be made for the purpose of obviating the objec-700. If there is any equity in paying judicial offitions of the governor to them, and that these chap

cers in proportion to the work they have to do, as ters will be passed anew at the next session of the those in other positions are supposed to be paid, the Legislature in such a form as to deprive the gover- judiciary of the third district are entitled to what nor of all pretext for vetoing them. The committee

it was proposed in this bill to give them. The govintends also to review and report at the next session

ernor thinks, however, that the example set in the the bill relating to property and other civil rights, first and second department of high judicial salaries, and also the Criminal Code prepared by Judge ought not to be followed in other parts of the State. Emott. It will be seen that the committee asks sug. The judiciary, as it seems to us, are not overpaid, gestions from the bench and bar of the State to aid and would not be even with the increase which the it in its labors.

bill mentioned designed to give them.

The governor's veto of the amendments to the Code was simply factious, and his reason there- A criminal case has recently come before the for flippant in the extreme. Howmuchsoever men courts of India which is exciting great interest in may differ about the merits of the Code of Civil that country by reason of the position of the parties Procedure, it is conceded on all sides that some of implicated. The Rajah of Poorree, who is the its provisions need amending, and the amendments hereditary guardian of the temple of Juggernaut, passed both houses of the Legislature without op- and the secular head of the Hindoo religion in position, but have fallen in the Executive Chamber; Oressa, and who is worshiped by vast numbers of not because they were not needed or were in them- people as the visible incarnation of Vishnu, became selves objectionable, but only because they were not possessed with the idea that a Hindoo ascetic of in what the governor conceives to be the most ap- great sanctity who enjoyed a special reputation for proved form. The reason given for the veto is a curing diseases was attempting to perform some mere pretext, or else the governor is not as consist-work of incantation against him. He, therefore, ent in all things as he is in his hatred of the Code. | induced the ascetic to visit his private apartments, Last year he signed the Amending Act, which was and, with the aid of his servants, put him to the

VOL. 17.- No. 25.

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torture and then cast him out into the street. The

NOTES OF CASES. injured man was found by the police, but died from

N Davis v. Lond. & Provinc. Marine Ins. Co., 38 his injuries within a few days. The Rajah was arrested, tried for murder, convicted and sentenced March last by the Chancery Division of the English to transportation for life. An appeal was taken, High Court of Justice, one Evans, an insurance but it is probable that the conviction will be sus

agent of defendant, having become liable to it for tained.

certain sums of money, plaintiff, who was his friend, The Bar Association of Chicago gave Mr. Justice having been given to understand that defendant Harlan, of the United States Supreme Court, a pub. could and was about to prosecute him criminally,

and that the police had been instructed to arrest lic reception and a dinner at the Palmer House in that city, on the occasion of his recent visit there him, agreed to and did deposit £2,000 in a bank as

an indemnity and security for Evans' liabilities, unfor the purpose of holding the Circuit Court. The bench and bar of Illinois were fully represented, and

der the belief that criminal prosecution would in the reception passed off in the most satisfactory consequence be abandoned. Before the agreement

and The fact that no speeches were allowed

posit were made the defendant was informed, rendered the gathering much more social in its by its legal advisers, that the prosecution against

Evans could not be maintained, and had withdrawn character than is usual upon such occasions. We trust the example set by the Chicago Bar Associa- its instructions to the police to arrest, but plaintiff

had not been informed of these facts. The court held tion may be followed in other localities.

Such gath

that the agreement must be rescinded and the money erings are not uncommon in England, and the result is that the relations between the bench and bar are

repaid to plaintiff. The court concludes, that almuch more intimate if not more friendly than in though the contract was bad, whether as one to

stifle a prosecution, or as induced by a misrepresentathis country. If the members of our profession in the large cities knew each other socially as well as

tion that a prosecution was to be stifled when no in a business way it would be for their mutual prosecution was intended, plaintiff was not precluded

from relief: first, because the money being in medio, advantage.

something must be done with it; second, because The Court of Appeals, on the 21st inst., adjourned illegality, arising from pressure or from an attempt until the 16th of September next, when a to stifle a prosecution, is not sufficient to make the calendar will be made up for the session then to be court stay its hand. The decision is not in conflict held. The cases undisposed of on the present with that principle of law which forbids the courts calendar will be transferred to the new one without from interfering to save a party who has entered further notice. In other cases notice must be filed into an illegal contract from the consequences of a with the clerk on or before the second day of Sep- failure by the other party to fulfill. In case of an tember. Judge Hand, the newly-appointed asso- agreement to compound a felony, the plaintiff, seekciate judge of the court, took his seat for the first ing to recover back money paid, cannot even claim time on the 17th inst.

relief on the ground of pressure. Sheppard v. Dorn

ford, 1 K. & J. 491; Sharp v. Taylor, 2 Ph. 801; Mr. Justice Dillon, of the United States Circuit Thompson v. Thompson, 7 Ves. 470; Farmer v. RusCourt, delivered an address before the Iowa State sell, 1 B. & P. 296. But see Tennant v. Elliott, 1 B. Bar Association, at its recent meeting at Des Moines, & P. 3; Williams v. Bayley, 4 Giff. 638.

Such a in that State, wherein he describes a visit to the contract, being one of suretyship, is not one uberInns of Court and Westminster Hall, in the sum- remae fidei to be upheld only in the case of there bemer of 1875, and considers the peculiar advantages ing the fullest disclosure by the intending creditor. of the system of law which originated there, and But the contract must be based on the full and which prevails throughout most of this country and voluntary agency of the individual who enters into many of the English Colonies, such as Australia, it, and when there is no consideration, as in the case New Zealand, etc. The chief excellencies of this

at bar, a very little will do to anthorize the court to system he considers to be the independent and interfere. Therefore, any thing like pressure upon stable tenure of the judicial office, the trial by jury, the part of the intended creditor will have a very and the doctrine of stare decisis. The peculiar serious effect on the validity of the contract, and merits of these features of our law are considered still more so where that pressure is the result of at length in the address. The jury trial, as juries maintaining a false impression on the mind of the now are, he considers to be less suited to civil than person impressed. See, also, Hill v. Gray, 1 Stark. criminal business. The statutory limitations 434; Carter v. Boehm, 3 Burr, 1905; Peek v. Gurney, the power of judges to control juries, which exist L. R., 6 H. L. 377; Keates v. Cadogan, 10 C. B. 591; in some of the States, he believes to be responsible Turner v. Harvey, Jac. 169; Pulsford v. Richards, 17 for inuch of this.

Beav. 87; Rees v. Berrington, 2 Ves. Jun. 540.


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