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damages in cases to which it was applicable ever thing on or beneath the surface which the owner could since;' and further on in the opinion it is said, and it remove or use with advantage, the only right he has is affords a clear interpretation of the rule in respect to that of reversion in case of non-user, and it is impossithe point now mooted: “In such a case nothing is ble to determine that this right is of any present more reasonable than that the price fixed by the pat- value. An instruction therefore that the measure of entee for the use of his invention, in his dealings with damages is the market value of the land at the time it others, and submitted to by them before using it,should was taken is not erroneous. (2) The owner of the gorern." This, it is true, is the rule at law, but the land, between the time of the appropriation and the complainants, waiving their right in equity to claim trial in the Circuit Court, having sold the buildings an account of profits, have invoked the same rule here thereon to third parties, it cannot now be permitted to and mast abide by it as it is. See also Black v. Mun- say that they remained the property of such owner, son, 14 Blatchf. 268; Greenleaf v. Yale Lock Manuf. and their value cannot be urged in reduction of damCo., 17 id. 253; 3 Suth. Dam. 601-607; 1 Greenl. Ev., $ ages. (3) A question calling for the opinion of the wit174; Whart. Ev. 1199; Abb. Tr. Ev. 188, 189; Matthews ness as to the value of a lot near the one condemned is F. Spaugenberg, 14 Fed. Rep. 350. The rule, as already incompetent, there being no evidence of any similarity stated, requires “a sale of licenses" “sufficient to es- between the two lots. Hollingsworth v. Des Moines, tablish a price for such liceufes." "A royalty, in or- etc., R. Co. Opinion by Reed, J. (As to taking fee der to be binding on a stranger to the licenses which see 26 Eng. Rep. 404.) established it, must be a uniform royalty.' Walk. [Decided April 25, 1884.) Pat. 390. These and the like expressions and definitions found in the cases and text-books, imply that ATTACHMENT-CUSTODIA LEGIS–PROPERTY TAKEN proof of a single licence is not sufficient; and if under FROM PRISONER NOT SUBJECT TO.-On January 31, some circumstances such proof might be deemed ade- 1883, the plaintiff commenced an action against the dequate, that in this instance is not of such clear and fendant and others upon a promissory note. It was unequivocal character as to give it such weight. Proc- alleged in the petition that defendants had disposed tor v. Brill, 4 Fed. Rep. 415; Judson v. Bradford, 3 of their property, in part, with intent to defraud their Ban. & A. 539; Black v. Munson, 2 id. 623. It is true creditors, and a writ of attachment was prayed for in a sense doubtless that the owner of an invention and issued, which was placed in the hands of the sherbas a right to fix his price upon it; but to constitute iff for service. The plaintiff is a partnership, and H. evidence against an infringer he must have done it “in P. Kirk and I. R. Kirk are the individual members his dealings with others,” and not merely in a form of thereof. On August 28, 1883, said I. R. Kirk made liceuse which he was willing to grant. It is, as it ap- and filed au information before a justice of the peace, pears to me, entirely inadmissible, at law or in equity, charging the defendant with the crime of uttering a that a patentee may, by inserting in his licenses a stipu- forged promissory note. A warrant was issued, and lation for a certain royalty, with a proviso that half the plaintiff was arrested by a constable and taken to that sum shall be received in full, in case of prompt the county jail. Upon his commitment to the jail, payment, acquire a right to demand the entire sum of the sheriff, who was the keeper thereof, proceeded to an infringer. If he can arbitrarily make such a dis- search the defendant's person, and took therefrom one crimination, he may as well make the ratio three to gold watch, one silver watch, and $480 in money, and que, or in any other proportion. The question is, what having the attachment and money and property all in is a reasonable royalty ? In respect to two or more his hands, he made return that he had levied the atclaims in a patent, each of value and distinct from the tachment on the watches and money. Section 4212 of other, one cannot equal both or all in value, any more the Code provides that “he who makes an arrest may than in mathematics a part can equal the whole. A take from the person all offensive weapons which he licensee may, if he choose bind himself to pay the same may have about his person, and must deliver them to price, whetber be use the entire invention or a part the magistrate before whom he is taken, to be disposed only; but at the same time he acquires the right to use of according to law.” We do not think that an officer all, and so his agreement may not be unreasonable; making an arrest is precluded by this statute from takbut if, as against an infringer, such a license can have ing from the person of the prisoner any other property aby force, reasonably, it must be in the way only of than offensive weapons.” An officer making an arestablishing a royalty for the entire invention. In rest, or a jailer upon committing a person to jail, may Birdsall v. Coolidge, 93 U. S. 64, it appeared that the search him and take from him all property which alleged infringement was of one only of three claims might be used by the prisoner in effecting an escape. in the letters patent, and the court says: “ Still it is In Reifsnyder v. Lee, 44 Iowa, 101, the defendant stole obvious that there cannot be any one rule of damages five head of cattle and sold them to the plaintiff for prescribed which will apply in all cases, even when it $162.30. The owner of the cattle claimed and recov. is conceded that the finding must be of limited extent, ered them from plaintiff, and the plaintiff procured and for a short time * the jury should find less officers to pursue and capture the thief. The officers than the amount of the license fee." See also Proctor making the arrest searched his person and took thereV. Bull, supra; Wooster v. Simonson, 16 Fed. Rep. 680; from certain money and a watch which was of little Ruggles v. Eddy, 2 Ban. & A. 627. Cir. Ct., D. Ind. value. It was held that the money and watch wery April, 1884. Wolcott v. Rude. Opinion by Woods, J. liable to garnishment in the hands of an officer at the

suit of plaintiff. In that case the search of the person was fully approved. It is said however in the opinion

that "a party to a suit can gain nothing by fraud or IOWA SUPREME COURT ABSTRACT.

violence under the pretense of process, nor will the

fraudulent or unlawful use of process be sanctioned by EMINENT DOMAIN-FEE REMAINS IN OWNER-DAM- the courts. In such cases parties will be restored to AGES-OPINION OF WITNESS.-(1) Under the statute the rights and position they possessed and occupied condemuing lands for right-of-way purposes, the rail- before they were deprived thereof by the fraud, vioroad company acquires but a limited right or interest lence, or the abuse of legal process.” To the same therein; the fee remains in the owner, and this inter effect see Pomroy v. Parmlee, 9 Iowa, 140, and Patterest may be valuable in some cases. Ordinarily how- son v. Pratt, 19 id. 358. We think the sheriff was jusever in the absence of any showing that there was any tified in making the search and in taking from the


person all money or property which was in any way create? Held, that the law is well settled by pumerconnected with tbe crime charged, or which might ous authorities that a separate use for å married serve to identify the prisoner. If however the sheriff woman cannot be created unless she is covert or unless knew that the watches and money were in po manner in immediate contemplation of marriage. Hus. on connected with the crime, and that they could not be Mar. Wom. and Trusts, 314; McBride v. Smyth, 4P. used in any way as evidence in the prosecution, we F. Smith, 245; Wells v. McCall, 14 id. 207; Suyder's think it was his duty to return them to the defend. Appeal, 11 Nor. 504; Philadelphia Trust, Safe Deposit ant. Il a constable or other officer takes possession of and Insurance Co.'s Appeal, 12 id. 209. In Hamersley property found on a prisoner, the court will order the v. Smith, 4 Whart. 126, it is said the immediate con same to be restored, if not required as a means of templation of marriage must be with a particular per. proof at the trial, or which does not finally appear to son. This indicates the strictness with which the rule be the fruits of the crime with which he stands charged. is held in Pennsylvania. (2.) The act of June 4, 1879, de1 Archib. Crim. Pl. & Pr. 34, 35. In the case of Reif- clares, “that every will shall be construed with refersnyder v. Lee, supra, it is said there was “ample ence to the real and personal property comprised in it, ground to hold that the money taken from Lee was to speak and take effect as if it had been executed im. the money which he had procured from plaintiff for mediately before the death of the testator, unless a the stolen cattle.” In the case at bar it is not contrary intention appear in the will." Held, at the claimed that the sheriff had any right to retain time this will was executed there was no power ju the the money and watches for any purpose connected testator to create the trust in question. Said act does with the arrest or with the crime charged. It is not give vitality to a previous attempt to tie up an esclaimed however that the defendant consented that tate in a manner wholly beyond the power of the tes. the sheriff might take possession of the same and keep tator to do. Neale's Appeal. Opinion by Mercur, them for him. This is denied by the defendant, and C. J. there was a conflict of evidence upon this point; and [Decided Jan. 7, 1884.) it cannot be said that the court was not warranted in finding that the property and money were taken with- WILL-CONTEMPORANEOUS WRITINGS-CONSTRUED out the consent of defendant. Where a party submits TOGETHER-PRECATORY TRUST.-A. by his will devised to a search of his person by an officer it cannot be said

all his estate, real, personal, and mixed, to his wife for that the search was with his consent because he makes

her own use and benefit, with a discretionary power to no physical resistance, and when the search is com- sell the whole or any part thereof. The will was duly pleted, and the fruits thereof are retained by the offi- executed with all requisite formalities. In another cer, it would require a strong showing to hold that writing of the same date, upon the same sheet, the testhis was with the consent of the prisoner. We think tator expressed the fullest confidence in his wife that that it can not be said that the search was unlawful, she would carry out his intentions as to his children but when it was ascertained that the money and prop- and grandchildren so far as they might in her opinion erty were in no way connected with the offense

prove worthy of her attention, of which and of their charged, and was not held as evidence of the crime

necessities she was to be the sole judge. In a third charged, the personal possession of the sheriff should writing, styled “ memorandum," of the same date and be regarded as the personal possession of the prisoner, upon the same sheet, he pamed specific property for and the money and property should be no more liable his son, grandson, and children of a daughter. Neither to attachment than if they were in the prisoner's pock- of the subsequent writings was under seal and witets. To hold otherwise would lead to unlawful and nessed, but they were admitted to probate. Testaforcible searches of the person under corer of crimi- tor's widow subsequently conveyed part of the proppal process as an aid to civil actions for the collection erty devised under the above will for a valuable conof debts. It does not appear that such was the pur. sideration to B. iu fee. In a contest between the chilpose of the prosecution in this case, but the court was

dren and grandchildren of A. and the devisees of B., justified in finding that the money and property here

held, that the first paper was a full and complete will, taken from the defendaut was by force and without his consent, and as it is not claimed that the money or

under which testator's widow took a fee, wbich was property was in any way connected with the crime

neither enlarged nor restricted by the power of sale, charged, no advantage should be taken of the defend- and that neither of the two subsequent papers were ant because the same was taken from his person by parts of the will, nor codicils thereto. Held further, force and against his wil. Com. Exch. Bk. v. MeLeod. that assuming all the papers constituted but one will, Opinion by Rotbrock, C. J.

the mere precatory words used by the testator could [Decided pril 25, 1884.)

not defeat the estate in fee vested in his widow, nor couvert the devise to her into a trust. Penbock's Estate, 8 Har. 268; Jauretche v. Proctor, 12 Wright,

466; Second Reformed Presbyterian Church v. DisPENNSYLVANIA SUPREME COURT

brow, 2 P. F. S. 219. Standing by themselves alone, ABSTRACT.

expressions of a desire or wish of the testator as to a WILL-TRUST-SEPARATE USE. --The will of James

direct disposition of his property may constitute a E. Brown, of Kittanning, after certain bequests, pro

valid devise or bequest thereof; yet the rule is differvides : “ Sereuth. All the rest and residue of my es

out when such expressions are used after an absolute tate, real, personal and mixed, I devise and bequeath disposition has been made. Having made au unqualito my daughter, Mrs. Jane B. Fiuley, and my grand- fied devise of his property, no precatory words to his child, P. R. E. Elvina Finley, share and share alike, deviseo can defeat the estate previously devised. Burt for their solo use, and which shall not be controlled, incumbered or charged by or liable, or subject in any

v. Herron, 16 P. F. Smith, 400. Bowlby v, Thunder. way to debts or contracts of the present or future hus

Opinion by Mercur, C. J. (When words create precaband of my said daughteror the future husband of my

tory trusts and when do not; see 25 Eng. Rep. 462, 802. granddaughter.” Did this create a valid trust in hisED.) granddaughter? And what estate did the language used [Decided Feb. 18, 1884.]


MISSOURI SUPREME COURT ABSTRACT.* Ev. 260; 1 Chitty Crim. Law, 602, 776; 7 Bac. Abr. 417;

3 id. 487; Rex v. Ford, 2 Salk. 690; Rex v. Griepe, 1 SALE-CONDITIONS-WARRANTY-AGENCY-WAIVER. Ld. Ray. 256; 2 Hargrave's Jurid. Arg. 221; Com. v. -Plaintiffs sold defendants machinery, warranting its

Halloway, 42 Pevn. St. 446; Perkins v. Stevens, 24 Fork, and stipulating that if it failed to operate well

Pick. 277; People v. Bowen, 43 Cal. 439; S. C., 13 Am. defendants should notify plaintiffs and their local Rep. 148; Blanc v. Rodgers, 49 Cal. 15; State v. Foley, agent in writing, so as to give opportunity to correct 15 Nev. 64; S. C., 37 Am. Rep. 458; Haley v. Clark, 26 the defect. Held, that this stipulation constituted a Ala. 439; State v. Sloss, 25 Mo. 291; Cummings v. condition precedent that compliance with it was nec

State, 4 Wall. 277, 333; Rich v. Flanders, 39 N. H. 323; essary in order to hold plaintiffs on their warranty ;

Hart v. State, 40 Ala. 32; State v. Band, 4 Jones (Law),

9. that an agreement by a sub-agent of plaintiffs to give State v. Grant. Opinion by Sherwood, J. the requisite notice did not relieve defendants from its

ACKNOWLEDGMENT-VOID CERTIFICATE-MARRIED binding force, and that notice given by the sub-agent

WOMAN'S DEED.-Where the certificate of acknowledgto the agent (but not to the principal) did not amount

ment of a married woman's deed is fatally defective, to a compliance. Mechanics' Bank v. Schaumburg, 38

and the deed is for that reason of no validity either as No. 228: Taylor v. Williams, 45 id. 82, 83; State v.

a conveyance or a contract, it confers upon the grantee Bank of Missouri, id. 538. Nichols y. Larkin. Opin

no equity upon which to base a decree giving him a leion by Phillips, Comr.

gal title. Citing Shroyer v. Nickell, 55 Mo. 264; Henry

v. McKerlie, 78 id. 416; Bagby v. Emberson. Opinion NEGOTIABLE INSTRUMENT-SECURED BY MORTGAGE.-

by Martin, Comr. HECITALS-SUBROGATION--MORTGAGE-RES JUDICATA. -1) The purchaser of a note secured by mortgage takes it subject to all the equities fastened upon it by stipulation or recitals contained in any recorded deed

RHODE ISLAND SUPREME COURT which forms a link in his chain of title. Major v.

Bakley, 51 Mo. 227; Rimmon v. Martin, 14 Tex. 318;
Tiervan v. Thurman, 14 B. Mon. 277; Daugherty v.

MASTER AND SERVANT-INJURED BY HAND CARPaine, 6 Minn. 452; Johnston v. Gwathmey, 4 Litt.

ASSUMED RISK.-A railroad workman, after finishing 321; Linville v. Savage, 58 Mo. 248; Butler v. Holcomb,

his work, was told by his foreman that there were 33 La. Ano. 170; S. C., 39 Am. Rep. 265. (2) If a party

twenty minutes before the next train, wbich was parchasing land subject to a mortgage contracts

understood to mean the next regular train. Wherewith the mortgagor to pay the mortgage debt, and af

upon the workman with others mounted a hand car to terward the mortgagor is compelled to pay it him

go to the next station, was overtaken by a special self, he will be subrogated to the rights of the mortga.

train and was killed. No carelessness was attributable gee as against such purchaser, and any one claiming

to the special train after the hand car was discovered Quder him with notice. Halsey v. Reed, 9 Paige, 446;

on the track; no flags were sent out by the hand car Stillman v. Stillman, A N. J. Eq. 127; Kamena v.

men, and a rule of the railroad company,known to the Heulbig, 23 id. 78; Moore's Appeal, 88 Penn. St. 450 ;

band car men, stated that “they may expect a train in Johnson v. Link, 51 N. Y. 333; Sheldon on Subroga

either direction without signals being shown for it." tion, $S 24, 26; Brandt Sur. & Guar., § 24; 1 Story

In an action brought to recover damages for the Eq. Jur., $ 499. (3) The maker of a note secured by

death, held, that the action could not be inaintained mortgage was sued upon the note, suffered judgment

as the workman assumed the risk of riding on the and paid the judgment. He then brought this suit

hand car by voluntarily and without objection mountagainst the plaintiff in the judgment, who held another

ing it when no flags had been sent out, and also the mortgage upon the same land, for the purpose of hav

risk of any omission on the company's part to signal ing himself subrogated to the rights of the original

the special train, by mounting the car with full knowlholder of the paid note, and having the mortgage

edge of the above rule. McGrath v. New York & New #bich had secured it enforced as a first lien on the

England R. Co. Opinion per Curiam. land. Held, tha: the judgment in the first action was no bar to this. Brake v. King, 54 Ind. 297; Halsey v. TRUST - EXECUTOR WHEN TRUSTEE-REFUSAL TO Reed, 9 Paige, 446. Orrick v. Durham. Opinion by QUALIFY AS EXECUTOR.-A testator nominated an exPhilips, Comr.

ecutor and conferred on him powers and duties which

do not belong to an executor, but which are approWITNESS DISQUALIFIED BY CONVICTION-LEGISLA- priate to a trustee. Held, in the circumstances that TURE CANNOT RESTORE COMPETENCY-RETROSPECTIVE it was not the testator's intent to annex the powers LEGISLATION.-Prior to the Revised Statutes of 1879 and duties to the office of executor. A refusal of the a person convicted of petit larceny was, under section nominated executor to qualify as executor was not a to of chapter 201 of General Statutes of 1865, incompe- refusal to accept the trusts which were consequently tent to be sworn as a witness in any cause, and the to be executed by him. In Sheet's Estate, 52 Penn. omission of the disqualifying clause in the revision of St. 257, 258, it is said one may be made a trustee with1879 was not designed to remove, and did not remove out calling him such. We are to look, not at the title such incompetency occurring anterior to the time the given, but at the powers conferred and duties imposed. latter statutes took effect. It is a settled rule in the In Anck's Estate, 11 Phila. 118, it was held that propconstruction of statutes in this State that they are to erty may be devised to an executor so that he will be operate prospectively, and not otherwise, unless the in- held to be also a trustee, although he may not be tent that they are to operate retrospectively is mani- named trustee in the will. And see also Parker' Apfested on the face of the statute in a manner altogether | peal, 61 Penn. St. 478, 484; Belcher v. Branch, 11 R. I. free from ambiguity. Besides incompetency to testify is 226, 228. Besides the ordinary powers and duties iuoione of the incidents of a conviction of crime, and part dent to the office of executor, the will before us conof the punishment, if not of the judgment, and the fers on the person named as executor certain powers, Legislature cannot, without trenching on the pardon- express or implied, and imposes certain duties which ing power vested exclusively in the executive, attempt do not belong to an executor as such, but are approto do away with it. Citing 1 Greenl. Ev., $ 377; 1 Gilb. priate to the office of a trustee. The powers and du*To appear in 79 Missouri Reports.

*To appear in 14 Rhode Island Reports.

ties are to invest and reinvest the personal estate, not KANSAS SUPREME COURT ABSTRACT.* required for the payment of the testator's debts and

JANUARY TERM, 1884. fuueral expenses and the expenses of administration and not specially bequeathed, to manage and control TAXATION-DRUGGIST-LICENSE TAX.- Where a city the real estate devised to him for that purpose, to col- of the third class levies license taxes upon various lect, receive and disburse the interest and income kinds of business and occupations, and in doing so arising from such real and personal estate, among the levies an annual license tax of $80, payable quarterly, in objects of the testator's bounîy, and finally to pay installments of $20 each, upon druggists having permits over and convey to them the estate itself, at the times from the probate judge to sell intoxicating liquors, or upon the happening of the contingencies, designa- and levies an annual license tax of $5 upon druggists ted in the will. We do not think that it was the tes- not having such permits, held, that the license tax lertator's intention to annex these powers and duties to ied upon druggists having such permits is not illegal the office of executor. They were rather in the na- or void. We have just decided the case of City of ture of a personal trust or confidence reposed in the Newton v. Atchison, 31 Kan. 151, which involves many particular persou whom he had selected as executor. of the questions involved in this case, and under that It will be observed that wherever the testator refers decision we think it necessarily follows that the ordito the executor in connection with these powers and nance which we are now considering must be held to duties, he with a single exception makes use not be valid. Also see the following cases: City of St. merely of the word “executor," but styles him “my Louis v. Bircher, 7 Mo. App. 169; Ould v. City of Richexecutor bereinafter named” or “ my said executor.'

mond, 23 Gratt. (Var) 464; City of Sacramento V. These powers aud duties relating to the trust being Crocker, 16 Cal. 119; Mayes v. Irwin, 8 Humph. (Tend.) distinct from those to be performed by the executor 290; City of Burlington v. Putnam Ins. Co., 31 lowa, as such, the disclaimer of the latter by the complain- 102; American Ex. Co. v. City of St. Joseph, 66 Mo. ant, Pomroy, did not operate as a disclaimer of the 675; Vau Baalen v. People, 40 Mich. 258; Fretwell s. former, which consequently remaiu to be executed by City of Troy, 18 Kan. 271. Tulloss v. City of Sedan him as though such disclaimer had not been made. Opinion by Horton, C. J. Garner v. Dowling, 11 Heisk. 48, 50; Tainter v. Clark, 13 Met. 220, 227; Clark v. Tainter, 7 Cush. 567, 570;

ATTACHMENT--SEIZURE OF SAFE-LIABILITY OT Judson v. Gibbons, 5 Wend. 224, 228; Perkins v. Lewis,

OFFICER.- An officer who has seized and taken 41 Ala. 649, 653; Bolton v. Jacks, 6 Robert. (N. Y.) possession of personal property under an order 166, 167, 228; Dunning v. Ocean Nat. Bank, 61 N. Y.

of attachment directed to his cannot, after the dis497, 502; Parsous v. Lyman, 5 Blatchf. C. C. 170, 173; charge of the attachment proceedings, defend his seizWilliams v. Conrad, 30 Barb. S. C. 524, 532; Moody's

ure and possession upon the ground that the sale and Lessee y. Fulmer, 3 Grant (Penn.), 18, 30. Pomroy v.

transfer to the plaintiff were fraudulent. An officer, Lewis. Opinion by Matteson, J.

under the order of attachment directed to him, seized

and took possession of a stock of merchandise in a SPECIFIC PERFORMANCE-AGREEMENT TO RELEASE

storeroom, and excluded from the room the owner. In CLAIM ON NOTE-ACTION ON NEW NOTE-INJUNCTION,

the room there was a safe, which the officer did not -A., as maker and indorser, was liable to B. upon two

levy upon.

Afterward the attachment proceedings notes. A., being unable to continue his business,

were discharged. A day or two subsequent to the arrauged to carry it on by means of an incorporated

seizure by the officer, and while he had full possession company, and agreed with B. to pay one of the notes,

of the store-room and all its contents, another person to obtain for B. the privilege of subscribing for stock

entered therein, with his consent, and levied on the in the incorporated company and to receive from B. a release of B.'s claim on the other note. Subsequently thereof, and carried it away. Held, as the officer had

safe under some process against a person not the owner just before the statute of limitations ran against A.'s

wrongfully deprived the real owner of the possession liability on the notes A. gave to B. a new note for the amount of the two former ones but without prejudice baving ang care or control thereof, he cannot be re

of his storeroom and safe, and also deprived him from to the agreement above given. B. put the new note in suit and A. filled a bill in equity to enjoin the suit

leased from liability on the ground that the safe was

taken out of his possession by some otber person. and to obtain specific performance of the agreement. Held on demurrer, that the bill should be sustained.

Simpson v. Vors. Opinion by Horton, C. J. Iu Reed v. Bank of Newburgh, 1 Paige, 215, the court STATUTE — REPEAL IMPLICATION. - Where & held that though a defendant in a suit at law, who has

later statute covers the entire subject-matter of a prior a separate demand which he cannot set off there, can

act, and embraces new and different provisions, plainly not ordinarily have relief in equity unless the plaintifi indicating that it was intended as a substitute therefor, is insolvent, yet the case is otherwise if the demand

it will, without any express declaration to that effect, arises out of the matter in controversy, or consists of

operate as a repeal of such former act; and, held, that an agreement so connected with the claim in suit that

under this rule, chapter 68 of the Laws of 1872, as if duly observed, the claim in suit would have ceased

amended by chapter 39, Laws of 1874, repealed chapto exist. The case is very closely if not exactly in

ter 33, Laws of 1870, as amended by chapter 48, Laws point. Contracts for the compromise of doubtful

of 1871. The rule is thus stated by Mr. Justice Field, claims have often been specifically enforced. Atwood

in the case of the United States v. Tynen, 11 Wall. 92: -, 1 Russ. 353; Waterman on Speci. Perf., $

“Even where two acts are not in express terms re43, and cases cited. It has been held that an agree

puguant, yet if the later act covers the whole subject ment between a creditor and a third person for valu

of the first, and embraces new provisious, plainly able consideration whereby the creditor agreed to

showing that it was intended as a substitute for the compromise his claim against the debtor, would be

first act, it will operate as a repeal of that act." See specifically enforced. Phillips v. Berger, 2 Barb. S. C. 608; also in 8 id. 527. And see Adderley v Dixon, 636; Bartlett v. King, 12 Mass. 537; Commonwealth v.

also the following cases: Davies v. Fairbairn, 3 How. 1 Sim. & Stu. 607. The tendency in this country is to extend the jurisdiction to all cases in wbich either of Sacramento v. Bird, 15 id. 294 ; Swann v. Buck. 40

Cooley, 10 Pick. 36; Pierpont v. Crouch, 10 (al. 315; the parties is fairly entitled to a more perfect relief Miss. 269; Norris v. Crocker, 13 How. 429; Sedgwick than be can get at law. Waterman on Speci. Perf., s

on Stat. and Const. Law, 124. State v. Studt. Opinion 16, notes. Baker v. Hawkins. Opinior by Durfee,

* Appearing in 31 Kansas Reports.



^ J.


by Brewer, J. [See 29 Alb. L. J. 372; 81 N. Y. 211.- ELECTION --PUTTING PROSECUTOR TO--DISTINCT OF ED.


the purpose of proving the charge made in a single CARRIER-DUTY TO SHIPPER-NEGLIGENCE.-Where

count in a criminal information, evidence is introa shipper of stock has a contract with the railway com

duced tending to prove several separate and distinct pany for himself to load his stock upon the cars of the

offenses, it is the duty of the court, upon motion of company at its stock yards, aud a car is furnished him near the shute of the yards for his use, and one of his

the defendant, to require the prosecutor to elect upon

which transaction he will rely for conviction; but the employees upcouples it from another and pushes it

court may exercise some discretion with regard to the dowu to the shute for the purpose of loading the stock,

definiteness of the election. Therefore on a prosecuthe railway company, in the management of its other

tion for selling intoxicating liquors in violation of cars, owes the duty of exercising ordinary care and diligeuce to the shipper and his employees while they several separate and distinct offenses, and where the

law, where evidence was introduced tending to prove are engaged in loading the car and doing such other

court, on motion of the defendant, required the State work preparatory to loading as is usual and necessary

to elect upon which transaction it would rely for conto do. Held, also, that if the company is guilty of or

viction, and the State elected to rely upon a sale of dinary negligence in leaving a car unattended upon the

whisky made by the defendant to one D.; and the evisame track with the car to be loaded by the shipper,

dence of D. teuded to show that several sales of both without having secured the same by brakes or other

whisky and beer were made by the defendant to the wise to prevent it from moving, and tbe car is moved

witness, at the defendant's place of business, in Noby a hard or strong wind against the car about to be

vember or December, 1882; and the defendant's place loaded and upon an employee of the shipper, and the

of business was definitely shown by the evidence, but employee is without fault and free from any negli

the time of the sales was not any more definitely gence or wrongful act on his part directly contributing

shown than as above stated; und the defendant moved to the injury, the railway company is liable to him for

the court to require the State to make the election the result of its negligence. Stinson v. Railroad Co.,

more definite and certain; and the court overruled 32 N. Y. 333; Haley v. Railroad Co., 7 Hun, 84; Brown

the motion, held, not error. We suppose that upon F. Railroad Co., 8 La. 45; Newsou v. Railroad Co., 29

a criminal trial, where the State has offered evidence N. Y. 83. See also Nicholson v. Railroad Co., 41 id. Union Pac. R. Co. v. Harwood. Opiniou by

tending to prove several distinct and substantive of

feuses, it is the duty of the court, upon the motion of Horton, C. J.

the defendaut, to require the prosecutor, before the defendant is put upon his defense, to elect upon which

particular transaction the prosecutor will rely for a CRIMINAL LAW.

conviction. State v. Schweiter, 27 Kan. 500, 512. Any

other rule would often work injustice and hardship RECEIVING STOLEN GOODS-GUILTY KNOWLEDGE- to the defendant. But while the prosecutor is reEVIDENCE.—The prisoner was indicted for receiving quired to elect in such cases, he is required to elect only stolen goods, knowing them to have been stolen. To in furtherance of justice; and the rule is never carried prove his guilty kuowledge evidence was given that, to the extent of working injustice. That a court may being asked by the police as to the prices he had given, exercise some discretion in requiring elections to be he said he did not then know, but his wife would make made in such cases as the present, see the following out a list of them, and next day she, in his presence, authorities: State v. Smith, 22 Vt. 75; State v. Croproduced a list, which was received in evidence against teau, 23 id. 14; State v. Bell, 27 Md. 675; Commonhim. Held, that it was admissible. If the case had wealth v. O'Connor, 107 Mass. 219. See also other been one in which the wife had made a statement to cases cited in the brief of counsel for the State, as folthe police in the absence of the prisoner,even although lows: Murphy v. State, 9 Lea, 373: State v. Sims, 3 he had referred them to her, I should have desired Strobh. 137; State v. Hood, 51 Me. 363; Commonvery considerable time to reflect before I should have wealth v. Sullivan, 104 Mass. 552; George v. State, 39 allowed such evidence to be given. But that is not this Miss. 570; State v. Green, 66 Mo. 632; State v. Tuller, case, and it is not necessary in this case to determine 34 Conn. 280. Sup. Ct. Kan. January, 1884. State v. whether that would have been good evidence or not, Crimmins. Opinion by Valentine, J. (31 Kan. 376.) and whether if a prisoner refers a witness to any one, [See 52 Iud. 157; 56 id. 182; 12 N. W. Rep. 313; 19 Alb. that makes every thing the other says evidence against L. J. 442.-ED.) him. That is not the case. And it appears to me that in this case the conviction ought to be upheld upon the FORGERY-BILL OF EXCHANGE—"CURRENT FUNDS” ground that the prisoner, being asked as to certain

-UNSTAMPED, NO DEFENSE.-An instrument, described matters, said, “I have not the means of answering, as a bill of exchange in an indictment for forgery, was but my wife bas, and she shall make out a list which

in the following form: “Staunton, Va., September 4, will be an answer to the question;" and next day a

1882. Augusta National Bank, pay to J. Edwin Laird policeman went to the house and the wife handed the

or bearer the sum of seventy-five dollars ($75), current list over to him-in the presence of the husband-as funds." Held, that the words “current funds" the statement of the husband. The husband was

used in the paper meant nothing more nor less than present, and he allowed the paper to be handed to the

"current money," and so construed, the instrument police as containing the information he had been asked

was negotiable. That in the absence of proof showing for. The question is whether it is receivable as evi

the law of the State of Virginia, where the instrument dence against him quantum valeat; and it appears to was drawn, to be different from that of Maryland, the me that it is so, as a statement authorized by the pris- character of the instrument was settled by the case of oner to be made and handed over in his presence to Hawthorn v. State, 56 Md. 530, which holds that a the police. According to all rules of evidence the

check drawn on a bank is a bill of excbange. That the statement was receivable in evidence against the pris

fact that the check or instrument described in the inoner, and therefore I am of opinion that the conviction

dictment was unstamped constituted no ground of deought to be upheld. Cr. Cas. Res. May 10, 1884. Re- fense. One cannot, it is true, be convicted of the forqina v. Mallory. Opinions by Coleridge, C. J., Grove, J. [50 L. T. Rep. (N. S.: 429.)

gery of a paper absolutely invalid upon its face, and which could not operate to the prejudice of another.


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