« SebelumnyaLanjutkan »
the case of Burnham v. Rangeley, 2 Woodb. & Min. to them, and thus considered the deed in question is a 417--424, where he collects a large number of authori.
Burrill on Assignments, 128; Norton v. ties on the subject. In the present case, the writ of Kearney, 10 Wis. 448; Van Vleet v. Slauson, 45 Barb. error is not dismissed for want of jurisdiction in this 317; Kruse v. Prindle, 8 Oregon, 158; Burrow v. Lehncourt; on the contrary, the jurisdiction of the court dorff, 8 Iowa, 96; Holt y. Bancroft, 30 Ala. 195; Down-, is exercised in reversing the judgment for want of ing v. Kintzing, 2 S. & R. 326. It is unimportant jurisdiction in the Circuit Court; and although in a whether the assignment reserves to the assignor any formal and nominal sense the plaintiffs in error pre-surplus remaining after payment of the consenting vail in obtaining a reversal of a judgment against creditors. The statute itself regulates that matter. them, the cause of that reversal is their own fault in An assigument providing for the release of the debtor invoking a jurisdiction to which they had no right to by consenting creditors is valid, and as for non-conresort, and its effect is, to defeat the entire proceed senting creditors the statute provides for them and ing which they originated and have prosecuted. Rail- the manner of enforcing their claims. Cases will be road Co. y. Swan. Opinion by Matthews, J.
found fully collected in notes to Burrill on Assign[Decided April 21, 1884. ]
ments, sections 184-200. See also Livermore y. Jenckes, 21 How. 126; Brashear v. West, 7 Pet. 609. Keating v. Vaughan. Opinion by Stayton, J.
[Deoided May 9, 1884.] TEXAS SUPREME COURT ABSTRACT.
MUNICIPAL CORPORATION POWER TO BORROW
PENNSYLVANIA SUPREME COURT MONEY--CONFLICT IN AUTHORITIES.—The question of
ABSTRACT. the implied right of municipal corporations to borrow money, or issue bonds with all the qualities of paper negotiable by the law merchant, has undergone fre
NEGLIGENCE-EXPLOSION OF GAS IN SEWER-NOTICE quent adjudication in the American courts. It has
-CONTRIBUTORY NEGLIGENCE.-- Where injury has realso been extensively discussed by the ablest elemen- sulted from a defect in a sewer or gas main, notice tary writers and commentators upon the subjects to
or knowledge will be assumed when the circumstances which the question properly belongs. The weight of
are such that the municipal authorities, by the exerauthority, so far as the State decisions are concerned, cise of proper and reasonable diligence, might have seems to favor the power. The majority of elemen- | known of the defect which caused the damage. If a tary writers are decidedly opposed to it. Mills v. Glea- person knew that illuminating gas was escaping into sou, 11 Wis. 470; Bank v. Chillicothe, 7 Ohio, part 2, p.
his house from a main, and that it might explode, it 31; Williamsport v. Commonwealth, 84 Penu. St. 487;
was his duty to withdraw from the premises or to take Clarke v. School District, 3 R. I. 199; City of Galena suitable precautions for his safety. Whether he had v. Corinth, 48 III. 423; contra Hackettstown v. Sunck- such knowledge or not was a question for the jury. bam, 37 N. J. L. 191; Knapp v. Hoboken, 39 N. Y. 394;
An ordinary man is not bound to know that illuminDent v. Cook, 45 Ga. 323; Hamlin v. Meadville. 6 Neb! ating gas when mixed in certain proportions with the *227 ; Beaman v. Board of Police, 42 Miss. 238; Caprnar
common air is explosive. As was said in the case of the tin v. Police Jury, 23 La. Ann. 190; Dill. Munic. Oil City Gas Co.v. Robinson, 99 Penn.St.1, such knowlBonds, 12, 13, 14; Dill. Munic. Corp., $ 117, et seq; edge might be presumed of an expert, or of one whose Burroughs on Pub. Sec., ch. 5; 2 Daniel Neg. Inst.
education would necessarily involve some knowledge 1527 et seq. In the Supreme Court of the United
of chemistry, but it would be going too far to presume States, where the point is most frequently raised, the
such knowledge of a saloon-keeper. A. was injured question is in a very unsettled state, and some of the by an explosion of illuminating gas, which had found decisions of that court seem difficult to reconcile with its way into his house through an untrapped drain each other. Police Jury v. Button, 15 Wall. 656; leading from a sewer belonging to the municipality. Wells v. Supervisors, 102 U. S. 625; Mayor v. Ray, 19 The sewer received the gas from a gas main whose end, Wall. 484; Lynde v. County, 16 id.6; Hitchcock v. Gal. situated near A.'s home, had been stopped by a Veston, 96 U. $. 341; see also Gause v. Clarksville, 5 wooden plug, which had rotted out. A patrolman and Dill. 165. It is to be noted however that whenever in
others testified to noticing the smell of illuminating that tribunal the power has been sustained, it has been gas in the street ten or twelve days before the exploby a divided court, whenever it has been denied the sion. Held, that this evidence should have been subcourt has been unanimous. The decisions, too, have
mitted to a jury in order to determine the question been made to rest more or less upon the of the whether the municipal officials, by the exercise of particular State in which the cases have arisen, in re- a proper diligence could have discovered the defcet iu ference to the issuance of negotiable bonds by munici- the gas main in time to have had it properly repaired pal corporations. Robertson v. Breedlove. Opinion by
before the explosion. McLaughlin v. City of Corry, Willie, C. J.
27 P. F. Smith, 109; Fritsch v. City of Allegheny, 10 [Decided March 24, 1884.]
Nor. 226. Kibele v. City of Philadelphia. Opinion by
Gordon, J. (See 30 Eng. R. 569.-ED.] ASSIGNMENT FOR CREDITORS-INVENTORY PART OF
[Decided Feb. 18, 1884.] -PROVIDING FOR RELEASE OF ASSIGNOR.- Where the deed of assignment conveyed certain designated prop- BOUNDARY
OF STREET COVENANT erty, without in terms declaring that the property EVIDENCE OTHER THAN MAPS-REFERENCE TO DEED thus conveyed was all the assignor possessed, except --DEDICATION – LIMITATIONS,-(1) It is well settled that exempt from forced sale, but the inventory made law that on the sale of a lot bounded by a street, the a part of the assignment, and the required oath con- title passes to the center of the street, if the grantor tained clear and unequivocal declarations that the had title to the land covered thereby, unless he reproperty conveyed by the deed, and named particu- served it either expressly or by clear implication. Paul larly in the inventory, was all the estate of the as- v.Carver, 2 Casey, 223; Cox v. Freedley, 9 id. 124; Trutt signor, of every character, which he owned, except v. Spotts, 6 Nor. 339; Spackman v. Steidel, õ id. 453. named property which was exempt from forced sale, When one, who is the proprietor of the portion of the held, those papers should be taken together as the town in which the lands lie, sells and conveys the lots assigument, and the deed considered with reference according to a plan which shows them to be on a street
or alley, it creates an implied covenant of the exist- the east and north wall of the building to be erected ence of the street or alley. Trutt v. Spotts, supra. by them on the lot conveyed, and that for the purThe fact that it does not appear ou the borough maps or pose of securing light and air to the said building to be plans is immaterial as between parties claiming under erected as aforesaid, no wall, building or obstruction the original owner and affected with knowledge of his whatever shall hereafter at any time be built, erected plan. (2) In the absence of the original draft or plan or put by the said A., his heirs or assigns, on his said employed by the grantor its place may be supplied remaining ground within fourteen feet of the east line from other evidence from which the jury are to deter- of the hereby granted lot.” A provision was added mine the location of the disputed street or alley. (3)
that if at any time the building ceased to be used as a Mere different and disconnected acts of trespass ex- place of religious worship, then the right of placing tending over parts of several years are clearly insuffi- the windows in the east wall should cease, and the cient to establish any right to obstruct an alley under grantee, his heirs and assigns, might thereupon close the statute of limitations or to bar the public character the same. The trustees erected the building, and afwhich has been stamped on th3 land by its dedication ter using it for many years as a church, sold it to the to public use as an alley. Transue v. Sell. Opinion by city of Philadelphia in 1872, since which time it has Paxson, J. [As to first point see 28 Am. Rep. 75; 32 been used as a public school. C. having in the meanid. 719; 23 id. 229; 31 Eng. R. 689.-ED.)
time acquired title to the remaining ground subject to [Decided March 24, 1884.)
the easement, began the erection of a brass foundry,
the wall of which was distant ten feet from the east MASTER AND SERVANT-TO FIX LIABILITY, RELA- wall of the public school building, whereupon the city TION OF, MUST EXIST-RESPONDEAT SUPERIOR.- Where prayed for an injunction to restrain the erection of the owner of a property refused to allow the servants such wall. Held, that though the building erected by of a third party to carry down through his store some
the trustees of the church had ceased to be used as a heavy bags of paper, which the said third party had place of religious worship, and the right to maintain purchased from him, and which were stored in the up- windows in the east wall thereof accordingly per part of the building, but told them they could ceased, nevertheless the covenant not to erect any throw them out of the window, the fact of such in- building within fourteen feet remained unimpaired. struction does not create such a relation between the And that the injunction prayed for should be granted owner and the said servants as to render him liable accordingly. Held, that the value of such covenant when they do this in such negligent manner as to in
does not consist in furnishing light and air alone; sejure one passing by in the street below. The case of curity against fire and annoyance from noise being adStevens v. Armstrong, 10 N. Y. 345, is in point. There ditional reasons for upholding it. Yeaton's Appeal the defendants were merchants in the city of Troy, Opinion per Curiam. N. Y. They sold to the Messrs. Plum a box which was [Decided Jan. 28, 1884. ] in the upper loft of the defendant's store. The Messrs.
EVIDENCL-RESPONSIVE ANSWER- EJECTMENT-DIPlum sent their porter for it. The latter went upon
VIDING CLAIM.-(1) The rule that the evidence of two defendants' premises to remove it, and while engaged in lowering the box with a tackle an accident occurred
witnesses, or of one witness and corroborative circam
stances equivalent to another, is necessary to overcome through the porter's negligence, by means of which the
a responsive answer in chancery does not apply when plaintiff was injured. The Court of Appeals ruled
the answer is made ou "information received." The that “the defendants could not be held liable for the
evidence of one witness may theu be sufficient. Eaton's negligent acts of the porter, by virtue of the principle
Appeal, 16 P. F. Smith, 483; 3 Greenl. Ev., $ 287. (2) applicable to the relation of master and servant anless
Where as to part of the property in dispute ejectment that relation in fact subsisted. Knowing and permit
would be an adequate remedy, yet if the title to the ting the porter to go into the loft to get the box, his
balance could only be settled by bill in equity the being in fact at the time the servant of Plum, and ac
plaintiff will not be compelled to divide his claim, and tually acting in his employment, did not constitute
the entire subject-matter will be adjudicated in him in any degree the agent or servant of the defend
equity. Locher's Appeal. Opinion by Sterrett, J. ants while engaged in removing the box. The rela
[Decided Jan. 7, 1884.) tion of master and servant cannot be created but by contract, express or implied, between the master and COVENANT-TO PAY INTEREST SURVIVES-LIMITAservant.” The only distinction between that case and TION-POWER OF SALE IN EXECUTORS.—(1) A covenant the one in hand consists in the fact that in the latter entered into by a decedent in his life-time, guaranteeShoneman directed the bales to be thrown out of the ing the payment of interest on a mortgage until the window, which is a distinction without a difference. mortgaged premises are so improved as to constitute If in the New York case the defendants had directed an adequate security for the mortgage debt, survives the porter to lower the box by means of the tackle him, and can be enforced against his executors and adthey would not have been responsible for his negli- ministrators, so as to recover interest accruing after genee in doing so any more than Mr. Shoneman is lia- the death of the decedent. Quain's Appeal, 10 Harris, ble for having directed Hemingway's servants to 510, explained, and its principle not extended to the remove the bales by way of the window. I concede present case. See also Gardiner v. Painter, 3 Pbila. R. that if Shoneman had directed the manner of throw- 365; Williams' Appeal, 11 Wright, 283. (2) The lien of ing the bales out of the window, and that if this par- such a covenant as is above specified can only be couticular bale had been thrown in accordance with such tinued against the real estate of the decedent by bring. direction, he would have been responsible. This is as ing suit thereon within five years of the decedent's far as the cases go. McCullough v. Shoneman. Opinion | death, or by filing a copy of said covenant withiu said by Paxson, J.
period. (3) A mere testamentary power of sale vested [Decided Feb. 4, 1884.]
in executors to sell real estate will not work a conver
sion. There is no direction here to sell; only a power. EASEMENT - COVENANT NOT TO BUILD - INJUNC- It ought to be settled by this time that in order to TION.---A. conveyed part of his ground in the city of work a conversion there must be either (1st) a positive Philadelphia to the trustees of a church in fee, the direction to sell, or (20) an absolute necessity to sell deed of conveyance containing a covenant that “the in order to execute the will, or (3d) such a blending of said trustees should have full right to place windows in real and personal estate by the testator in his will as
to clearly show that he intended to create a fund out two of them, in the absence of the other, examined of both real and personal estate, and to bequeath the the premises and heard ex parte statements from B., said fund as money. Iu each of the two latter cases A. not being present and not having been notified ; an intent to convert will be implied. These proposi- the third also examined the premises alone, and heard tions are settled by a line of authorities. It is sufficient ex parte statements from B. in the absence of A., and to refer to the late cases of Jones v. Caldwell, 1 Out. 42 without notice to him, the information thus gained Roland v. Miller, 11 Week. Not. 431; Lindley's Appeal, being ivfluential in determining the award; and sub13 id. 65. We have neither of these requirements in sequently the three heard ex parte statements from A. the will of this testator. The most that can be said is in the absence of B., and without notice to him. Held, that he made a mistake as to the extent of his estate that the award was illegally made and null: First, beand a sale of his real estate became necessary in order cause the parties interested were not notified; second, to pay his debts. But this is not to the purpose. The because the arbitrators did not act together. The reascheme of his will did not contemplate this, and if by soning of this court in the case of Cleland v. Hedly, reason of the depreciation of his property, or for other 5 R. I. 163, with regard to the illegality of receiving cause, a necessity to sell the real estate arose which any ex parte evidence in cases of this sort, without no. was not foreseen by the testator, it will not work a tice to the opposite party, is abundantly supported by conversion, for the obvious reason that a conversion is the authorities, and we are content with the law as always a question of intent. Hunt's Appeal. Opinion therein stated. It is decisive of the case at bar upon by Paxson, J.
that point. See also Selby v. Gibson, 1 Har. & J. 362, [Decided Feb. 4, 1884.)
note; Lutz v. Linthicum, 8 Pet. 165; Bushey v. Cul. ver, 26 Md. 534; Collins v. Vanderbilt, 8 Bosw. 313; Bullitt v.
Musgrave, 3 Gill, 31; Webber v. Ives, 1 Ty
ler, 441; Frey v. Vanlear, 1 Serg. & R. 435; Chaplin v. NEVADA SUPREME COURT ABSTRACT. Kirwan, 1 Dall. 187; Peters v. Newkirk, Cow. 103;
Banton v. Gale, 6 B. Mon. 260. The secoud reason TAXATION--CIRCUS OF NON-RESIDENT.-A travelling
why the award in this case cannot be sustained is that circus and menagerie, owned by a non-resident, and
the arbitrators did not act together. It is a well-setbrought into this State to be exhibited at various
tled rule that where the submission is to the several points, the owner intending to take it into another
arbitrators jointly, all must act and act together. And State after such exhibitions, is not subject to taxation
this rule obtains as well in those cases where the main this State. As well might a resident of another jority are authorized to make an award which shall be State be taxed on his money and team, if he comes on
binding upon the parties to the submission, as where a visit to the State, to remain a week. Barnes v.
entire unanimity is required. Said Mr. Justice Nel. Woodbury, 17 Nev.383; Conley v.Chedic, 7 id.341; State
son in Harris v. Norton, 7 Wend. 534: "Referees have v. Engle, 34 N. J. Law, 427; Hoyt v. Com., 23 N. Y.
no power to act unless all attend. The concurrence of 240; id. 245. Robinson v. Longley. Opinion by Leon
two, had the third been present, would have been ard, J.
enough; but only two attending, they could do no act [Decided Aug., 1883.
affecting the rights of the parties." And the law is
the same with regard to arbitrators as to referees. In AGENCY-RESTRICTION ON AUTHORITY-SALE-VEN. Hoff v. Taylor, 5 N. J. Law, 829, the court states the DOR WITHOUT TITLE.—(1) It is ordinarily the duty of rule as follows: "All are to deliberate, consult, reason; parties who deal with agents to ascertain the extent of but the weight or majority of opinion is the rule. their authority; but when a principal puts the agent for- The whole court is to hear, but the claim which gives ward as a general agent, or places him in a position the most suffrages is to prevail.” Says Mr. Justice where others are justified in the belief that his powers Breece, in Smith v. Smith, 28 Ill. 56, 60: “They must are general, the restrictions privately imposed on the each be present at every meeting, and the witnesses agent are immaterial, except as between him and the and the parties must be examined in the presence of principal. A railroad superintendent may be pre
them all; for the parties are entitled to have recourse sumed to have authority to determine an ordinary to the arguments, experience and judgment of each matter, such as the receipt of fuel for the company. F. arbitrator at every stage of the proceedings brought to & M. Bank v. B. & D. Bank, 28 N. Y. 425; T. W. & bear on the minds of his fellow judges, so that by con W. R. Co. v. Rodrigues, 47 Ill. 188; McKiernan v. Len- ference they shall mutually assist each other in arrivzen, 56 Cal. 61; Southgate v. A. & P. R. R. Co., 61 Mo. ing at a just conclusion. To the same effect are both 89; In re German M. Co., 19 Law & Eq. 591; Walker v. the English and American decisions almost without G. W. R. Co., 2 L. R. Exch. 228; Wild v. N. Y. & A. exception. See Kyd on Awards, 105, 106; Russell on S. M. Co., 59 N. Y. 644. (2) Where a purchaser has no- Arbitration, 209; Morse on Arbitration and Award, tice that the goods about to be sold to him are uot the 152, 153; Thompson v. Mitchell, 35 Me. 281; In re property of the vendor, the owners after the sale may Plews & Middleton, 6 Q. B. (N. S.) 845; Little v. recover the goods or their value. Sacalaris v. Eureka Newtou, 9 Dowl. P. C. 437; Lord v. Lord, 5 El. & B. & P. R. Co. Opinion by Belknap, J.
404; Lyon v. Blossom, 4 Duer, 318, 325; McInroy v. [Decided Nov. 24, 1883.]
Benedict, 11 Johns. Rep. 402. Wood v. Helme. Opinion by Tillinghast, J. To appear in 14 R. I. Rep. [See 20 Eng. R. 522—ED.]
necessary witness in the two cases, and attended the has the effect to discharge it. Sloan v. Rice, 41 Iowa, court for the sole purpose of giving his evidence. 465; Packard v. Kingman, 11 id. 219; Henderschott v. While so in attendance he was served with a sum- Ping, 24 id. 134; Watkins v. Hill, 8 Pick. 522; Pomeroy mons in another case. He applied to the court, on a v. Rice, 16 id. 22. (2) Where a power of attorney is showing of the facts, to set aside the service, but the given to cancel a mortgage and take a new one in its application was refused. He now moves in this court place the mere cancellation of the old mortgage under for a writ of mandamus. We think the case is within the power is of no effect unless a new mortgage is the principle of Watson v. Judge of Superior Court, taken. 56 Iowa, 622; 10 N. W. Rep. 214. Foster v. 40 Mich. 729, and that the writ should issue. Public Paine. Opinion by Reed, J. policy, the due administration of justice, and protec- [Decided March 20, 1884. ] tion to parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in
RECENT ENGLISH DECISIONS. other cases also. The following cases may be referred to for the general reasons: Norris v. Beach, 2 Johns.
WILL-LEGACIES-INTEREST ON UNPAID.-A testa294; Sanford v. Close, 3 Cow. 381; Dixon v. Ely, 4 Ed.
tor bequeathed various legacies, and amongst others a Ch. 557; Clark v. Grant, 2 Wend. 257; Seaver v. Rob
legacy to each of the sons and daughters of E. P., inson, 3 Duer, 622; Persou v. Grier, 66 N. Y. 124;
whether born in the testator's life-time or after his Matthews v. Tufts, 87 id. 568; Hall's case, 1 Tyler, 274;
decease; and the will contained the following words: In re Healey, 53 Vt. 694; Miles v. McCullough, 1 Bin.
“I direct that the said several hereinbefore-mentioned 77; Halsey v. Stewart, 4 N. J. Law, 366; Dungan v.
legacies shall be paid within four years after my deMiller, 37 N. J. 182; Vincent v. Watson, 1 Rich. Law,
cease.” The executors paid certain of the legacies 194; Sadler v. Ray, 5 id. 523; Martin v. Ramsey, h
within one year after the death of the testator. The Humph. 260; Dickenson's case, 3 Harr. (Del.) 517;
assets were amply sufficient :o pay all the legacies, but Henegar v. Spangler, 29 Ga. 217; May v. Shumway, 16
other legacies bad not been paid, because the legatees, Gray, 86; Thompson's case, 122 Mass. 428; Ballinger v.
being infants, were unable to give receipts for the Elliot, 72 N. C. 596; Parker v. Hotchkiss, 1 Wall. Jr.
same. The question was from what date interest was 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v.
payable on the unpaid legacies. Held, that the direcFlower, 8 Term R. 534; Newton v. Askew, 6 Hare,
tion as to payment was merely for the general conven: 319; Persee v. Persee, 5 H. L. Cas. 671. See also In re
ience of the estate, for which purpose it was not necesCannon, 47 Mich. 481; S. C., 11 N. W. Rep. 280. The
sary to postpone the payment of the legacies; and case of Case v. Rorabacher, 15 Mich. 537, is different.
that therefore the several unpaid legacies should be In that case the party claiming the privilege was at
credited with interest from the end of one year after tending court within the jurisdiction of his residence.
the testator's death. Varley v. Winn, 2 K. & J. 700, Mitchell v. Wixon. Opinion by Cooley, C. J.
followed. Chan. Div., March 15, 1884. Olise v. [Decided April 30, 1884. ]
Westerman. Opinion by Kay, J. (50 L. T. Rep.
[N. S.] 355.) [See 9 Alb. L. J. 175; 17 id. 279.-Ed.) SALE-WHEN TITLE PASSES-ATTACHMENT-JURY'S AWARD OF DAMAGES. --When property sold has been PARTNERSHIP-REAL PROPERTY OF, PERSONALTYidentified, it is immaterial that it had not been re- CANNOT BE RE-CONVERTED.—Real property belonging ceived and weighed by the purchaser, and the quan- to a partnership, being regarded in equity as persontity agreed upon ascertained, before a levy under a alty in consequence of being impressed by equity with writ of attachment against the vendor, and the sale an implied trust for sale, cannot be reconverted, so as must stand. Where a record fails to show how a jury to avoid liability to probate duty at the death of one made up their award of damages, and it was possible of the partners, by any thing short of a binding agreefor them, on the evidence, to award the amount, with- ment between the partners which takes effect at the out including improper items, a judgment will not be
death. And therefore where one partner assumed by disturbed, because they may have included the im.
his will to reconvert real proverty belonging to the proper items. A'dams Mining Co. v. Senter, 26 Mich.
partnership, in pursuance of an alleged agreement be73; Lingham v. Eggleston, 27 id. 324; Hatch v. Fowler, tween the partners that he should do so by his will, 28 id. 205; Hahn v. Fredericks, 30 id. 223; Wilkinson v.
the liability to probate duty was not ousted. (2) A. Holiday, 33 id. 386; Grant v. Merchants', etc., Bank,
and B. carried on business in partnership together. 35 id. 515; Scotten v. Sutter, 37 id. 526 ; Brewer v. Salt
An arrangement was made between A. and B. that Ass'n, 47 id. 526; 11 N. W. Rep. 370. Sandler v.
A.'s share of the real property of the partnership Bresnahan. Opinion by Cooley, C. J.
should remain in the business after A.'s death, B. to [Decided April 30, 1884.]
pay an annual sum equal to 5 per cent upon the value of A.'s share as rent for it. These terms were embodied in A.'s will, and B. assented to them. Subject
to these terms, A. devised and bequeathed all his IOWA SUPREME COURT ABSTRACT. property to his executors upon trust for his wife E.
A. died, and B. paid to A.'s executors an annual sum NOVATION-SURRENDER OF NOTES SECURED-MORT
equal to 5 per cent upon the value of A.'s share in the GAGE CONTINUES IN FORCE--POWER OF ATTORNEY.-(1)
real property of the partnership. E. afterward died, A debtor is discharged from all personal liability by an
having made her will, whereby she confirmed the disagreement of his creditor to accept another in his stead. positions in her husband's will, and subject thereto The acceptance of a new debtor does not raise a new devised and bequeathed her property to her children. debt, but merely transfers the old one. The Held, that A.'s share of the real property of the partdebt itself is not changed by the novation. A mort- nership was personal property, and so liable to progage continues in force until the debt is satisfied; and bate duty, both under his will and under E.'s will, and it is not discharged by the surrender of the notes se- that there was no such agreement made between the cured and the acceptance of others in their stead from partners as was effectual to reconvert the property a new debtor. No mere change in the form of the into realty. The judgment of Pollock and Huddlesdebt, nor, as we think, in the personnel of the debtor, ton, BB., and North, J. (48 L. T. Rep. (N. S.) 608),
affirmed. Custance v. Bradshaw, 4 Hare, 315, over- complaint, and if he does not know them, other witruled. Ct. of App., Jan. 17, 1884. Attorney-General nesses must be examined who do know them; and no v. Hubbuck. Opinions by Coleridge, L. C. J., Brett, person can be arrested on the mere belief of the perM. P.., and Bowen, L. J. (50 L. T. Rep. [N. S.] 374.) son making the complaint. The liberty of the citizen
is not held upon so slender a tenure as that. Badger AGENCY-POWER TO SELL, NOT TO PLEDGE.-An au- v. Reade, 36 Mich. 774; People v. Recorder of Albany, thority in a power of attorney "to negotiate, make 6 Hill, 429; Proctor v. Prout, 17 Mich. 473. Au indictsale, dispose of, assign, and transfer, or cause to be ment alleging that defendant “was engaged in, and procured and assigned, and transferred," at discre- did carry on the business " of selling at retail, and as tion, “all or any of the government promissory a beverage, spirituous liquors, etc., does not charge an notes *
* standing in my name or belonging to offense under the laws of Michigan, unless some par
and for the purposes aforesaid, to sign ticular instance of the illegal traffic is specified. Peofor me every contract, or agreement, acceptance, or ple v. Minnock, 18 N. W. Rep. 390. Sup. Ct. Mich., other document'," held (affirming the judgment of April 30, 1884. People v. Heffron. Opinion by Champthe court below), not to give authority to indorse a
lin, J. (19 N. W. Rep. 170.) promissory note by way of pledge as security for a loan. Bank of Bengal v. Macleod, 5 Moo. Ind. App. RAPE-STATEMENTS—RES GESTÆ-MEDICAL EXPERT. 1:7 Moo. P. C. 35, distinguished. Jud. Com. Priv. -Upon an indictment for rape of a female child, eviConn., March 1, 1884. Jonmenjoy Coondoo v. Watson. dence is admissible of the answers given by the girl Opinion per Curiam. (50 L. T. Rep. [N. S.] 411.) [See two or three days after the alleged injury, to the ques23 Eng. Rep. 838.-ED.)
tions of her mother, induced by the girl's singular de
meanor. Such statements are a part of the res gesta, CONTRACT--CONSIDERATION--EVIDENCE TO EXPLAIN. and their weight is for the jury. A hypothetical -By an agreement in writing G. agreed that Y. should question put to a physician, whether in his opinion, receive all the money that was then due, and wbich the facts assumed would constitute rape, is altogether should become due to G. upon the winding-up of the improper, being a demand for his legal, instead of his Barnstaple Second Annuitant Society, Y. paying to medical, knowledge. Yet if he gives a correct answer. G. out of such money the sum of 1001. The consider- the impropriety of the question is no ground for a new ation was stated to be “a sum of money this day trial. Sup. Ct. Mich., April 30, 1884. People v. Brown. paid, etc." Held, that evidence was admissible Opinion by Campbell, J. (19 N. W. Rep. 172.) to show that in addition to the consideration expressed there was another consideration, namely, SENTENCE-CUMULATIVE ILLEGAL.— Where a pristhat Y. should vote for the winding-up of the oner, convicted for two separate offenses, was sentensociety. Q. B. Div., March 4, 1884. Matter of Barn- ced to serve three months for the first, from Janustaple Second Annuitant Society. Opinions by Day ary 25th to April 24th, and for a like term for the secand Smith, JJ. (50 L. T. Rep. [N. S.] 425.)
ond offense, from and after April 24th, unless the first
term should expire before that time, in which case the EXECUTOR AND ADMINISTRATOR-WILL NOT PRO- second should begin at the termination of the first, BATED-NO AUTHORITY TO SUE.-A bill of exchange held, that the second sentence was void. The petihad been indorsed by a testatrix, who was the holder tioner, having served out the term under the first senthereof, and paid in to her bankers for collection in the tence, now applies in habeas corpus for a discharge, on usual course of business. Before the bill became due the ground that cumulative sentences are illegal. We the testatrix died, and when it became due the plaint- have no statute providing for such sentences; and in iffs, as her executors, demanded the return of the bill, the absence of statutory provision therefor the quesor its value. The bankers refused to deliver up the tion presented is not without difficulty, as the followbill, on the ground that the plaintiffs had not taken ing cases will abundantly show. Wilkes' case, 4 Brown, out probate, but said they were ready and willing to Parl. Cas. 360; Queen v. Cutbush, L. R., 2 Q. B. 379; give up the bill to the plaintiffs on their production of State v. Smith, 5 Day, 175; Brown v. Com., 4 Rawle, probate. Whereupon the plaintiffs, before taking out 259; Warden of State Prison v. Allen, 11 Ind. 389; probate, began an action against the bankers for the James y. Ward, 2 Metc. (Ky.) 271; Kite v. Com., 11 delivery up of the bill, or its value, and for damages Metc. 581; Ex parte Meyers, 44 Mo. 279; Ex parte Robfor its detention. Held, that all proceedings in the erts, 9 Nev. 44; People v. Forbes, 22 Cal. 135; Brown action should be stayed as frivolous and vexatious, v. Rice, 57 Mo. 56; People v. Whetson, Cent. Law J. until the plaintiffs took out probate. Webb v. Adkins, (1875) 552. But expressing no opinion upon the general 14 C. B. 401; 23 L. J. 96, C. P., followed. Q. B. Div., question, we think a sentence to confinement to take March 6, 1884. Tarn v. Com. Bank, Sydney. Opin- effect in the future cannot be sustained, unless it is ions by Lopes, Stephen and Cave, JJ. (50 L. T. Rep. certain and definite, and not subject to undefined and (N. S.] 365.
uncertain contingencies. Sup. Ct. Mich., April 30,
W. Rep. 200.) [See 29 Eng. Rep. 432.-ED.]
INDICTMENT-DEFECTIVE-ARREST -AFFIDAVIT TO OBTAIN.-An affidavit alleging that affiant “has good
AN ENGLISH COUNTY COURT. reason to believe, and does believe,” that a certain person has committed an offense, is not sufficient to Tis County Court day at D., and the local practiauthorize a justice to issue a warrant for his arrest. tioners are all at their offices at 9 sharp, waiting for The affidavit must be upon knowledge, and not mere the last stray fish that may come to the net. I have a conjecture. Bish. Crim. Proc., 88 716-719; Com. v. jury case with S., " Mr. Attorney-General," as we Lottery Tickets, 5 Cush. 369; Brown v. Kelley, 20 have dubbed him, and two or three smaller matters Mich. 27; People v. judge of Wayne Circuit, 36 id. against less dangerous antagonists, but these are all 334; Swart v. Kimball, 43 id. 451; 8. C., 5 N. W. Rep. prepared and will cost me no trouble this morning. I 635. The complaint must set up the facts constituting have seen my witnesses, looked up my cases and am the offense on the knowledge of the person making the ready for the fray. What I now await is the visit of