« SebelumnyaLanjutkan »
order of the court, and shall, at the expense of the es- the note it was assigned to the plaintiff, who foretate, execute all proper writings and instruments, and closed the mortgage and sold the property, when it do all acts required by the court touching the assigned was found that it was incumbered by a prior mortproperty or estate, and to enable the assignee to de- gage, so that the plaintiff did not realize the amount mand, recover and receive all the property and estate of his debt by $4,794.35. Held, that there was no privassigued wherever situated." That section conferred ity of contract between B. and the plaintiff, and that ample authority upon the bankrupt court until the he was not liable to the latter for the loss. This quesdischarge of the bankrupt; but that authority ceases tion has been decided by the Supreme Court in Savafter the discharge by the very terms of the section. ings Bank v. Ward, 100 U. S. 195. The case was this: And so it has been held in numerous cases. In re A., an attorney employed by B. to examine and report Joues, 6 B. R. 386; Cook v. Whipple, 9 id. 155; In re on the title of the latter to a certain lot of ground, cerDean, 3 N. B. R. 188. After the discharge of tified that it was “good,” upon which certificate B. the bankrupt and while the discharge is in force, the procured a loan from C., and gave a mortgage on the bankrupt court has no more jurisdiction over him
property as security. It turned out that B. had parted than over any other person. He can be compelled to with the title to the property prior to the date of the act then, not summarily by motion or order under sec- certificate-a fact that in the exercise of reasonable tion 5104, or any other section of the Bankrupt Act, care might have been learned from the records. The but simply in some regular judicial proceeding as a security having proved worthless, and B. being insolparty thereto or as a witness therein. There is no vent, C. lost his money, and brought suit against A. question that a State court would have jurisdiction of for damages. The court held in the language of the such an action as this at the proper time, when sufficient syllabus, “ that there being neither fraud, collusion, facts shall exist which will require the exercise of its nor falsehood by A., nor privity of contract between jurisdiction. Ward y. Jenkins, 10 Metc. 583; Stevens him and C., he is not liable to the latter for any loss 5. Mechanics' Savings Bank, 101 Mass. 109; 3 Am. Rep. sustained by reason of the certificate." The ruling is 35; Cook v. Whipple, 55 N. Y. 150; 14 Am. Rep. 202. also maintained in Houseman v. Girard M. B. & L. Platt v. Jones. Opinion by Earl, J. (See 47 Am. Rep. Ass'n, 81 Penn. St. 256, in which it was held that -hote.)
the recorder of deeds is liable in damages for a false [Decided April 29, 1884.)
certificate of title, only to the party who employs CORPORATION-DISSOLUTION-ACT 1874, ch. 324–RE
him to make the search, and not his assignee or alienee. FUSING TO MAKE REPORTS.--Defendant, by his charter,
And in Winterbottom v. Wright, 10 Mees. & W. is authorized "to establish a public exchange and
(Exch.) 109, it was held that although the maker of a mart for receiving deposits of and transferring earn
carriage is liable to the person for whom he makes it, est moneys, stocks, bonds and other securities *
for any loss or injury arising directly from negligence and for the procurement and making of loans on the
in its construction, that he was not so liable to any same * guaranteeing the payment of bonds
third person who might use the same, for the reason and other obligations." Held, that it was a “loan,
that there was no privity of contract between them. mortgage, security, guaranty or indemnity company,”
Cir. Ct., D. Oregon, April 25, 1884. Dundee, etc., and a corporation “having the power and receiving
Investment Co. v. Hughes. Opiniou by Deady, J. money on deposit” within the meaning of the act of 1974 ($ 1, ch. 324, Laws of 1874), requiring every such
PATENT-TO ONE PARTNER-DISSOLUTION-RIGHT TO corporation to make a report semi-annually to the
USE.--During the existence of a partnership between superintendent of the banking department; and that
two persons one of them invented a machine upon upon its refusal to make such reports, an action was
which a patent was granted to him. The firm paid the properly brought by the attorney-general to dissolve
fees and costs of procuring the patent and the expenthe corporation. If this had been exclusively a de.
ses of an experimental trial of the invention and also posit company, or a loan company, or a guarantee com
the expenses of some litigation which ensued. It appany, or a mortgage security company, thus confined
peared however that all the outlay of the firm was to one kind of business, it could not be doubted that
more than repaid by the benefits arising from the free it would come within the act of 1874 ; but the fact that
use of the patented machine in the partnership busiits powers are so general, it being allowed to do all
ness. Held, that upon these facts no implied license these various kinds of business,certainly caunot take it arises to the member of the firm not the inventor to out of the operation of the act. It is within the policy, make, use, and vend the patented machine after the and we think within the letter of the law, and hence
dissolution of the partnership. In McWilliams Manfg. the disposition made of the case by the court below
Co. v. Blundell, 11 Fed. Rep. 419, upon a substantially was right; and its judgment should be affirmed, with
similar state of facts, it was held that the firm could costs. People v. Mut. Trust Co. Opinion by Earl, make no claim to the patent, and after dissolution, an J.
injunction to restrain infringement issued against the [Lecided April 29, 1884.]
late partner. Our conclusion finds support in adjudged
Brickill v. Mayor, etc., of New York, 7 Fed.
Rep. 479; Wade v. Metcalf, 16 id. 130. Nor does this UNITED STATES CIRCUIT COURT AB
view conflict with the decisious cited by the defendSTRACT,*
auts. In the nature of the case (the inventiou being a process) the presumed license in McClurg v. Kings
land, 1 How. 202, was unlimited, and justly so under CONTRACT-ATTORNEY EXAMINING TITLE-WANT OF
the circumstances. Iu Chabot v. American ButtonPRIVITY-NO LIABILITY TO THIRD PERSON FOR NEG LI
hole, etc., Co., 6 Fish. 71, the facts were not only subGENCE.-A. applied to a money lender for a loan of stantially similar to those in McClurg v. Kingsland, $3,000, and offered his note therefor, secured by a
but there was the additional element of an express mortgage on certain real property; B., the attorney of contract, the terms of which greatly strengthened the the money lender, examined the title to the real property and furnished the latter a certificate to the effect presumption of an unrestricted license. The subject that A.'s title was good and the property unincum- St. 155, was a process, which if legally the invention of
matter of the patent in Slemmer's Appeal, 58 Penn. bered, and thereupon the loan was made on the terms
one partner, was in fact the result of partnersbip laproposed; subsequently and before the maturity of
bor, experiment, and development, and the dealings of * Appearing in 20 Federal Reporter.
the partners with each other had been of such a char
acter that it would have been grossly inequitable to
MARYLAND COURT OF APPEALS ABSTRACT.* deny to any of them the right to use the invention. In Kenny's Patent Button-boling Co. v. Somervell, 38 TRUST-APPLICATION OF PURCHASE-MONEY-WHEN L. T. Rep. 878, tbe partnership was formed for the sole PURCHASER NOT BOUND TO SEE TO.- Where a wife is purpose of working the patented invention, and had authorized and empowered by the will of her husband, been conducted for several years, during which time to sell and convey the real estate situate in the city of the partner whom it was attempted arbitrarily to en- Baltimore, of which he died seised, and to invest the join had aided in perfecting the invention and in- proceeds in productive property in the city or county vested his capital in the business. Cir. Ct., W. D. of St. Louis, in the State of Missouri, a purchaser from Penn., March 20, 1884. Keller v. Stolzenbach. Opinion the widow of a part of said property is not bound to by Acheson, J.
see to the application of the purchase-money. In the
case of Wormley v. Wormley, 8 Wheat. 442, Judge CONSTITUTIONAL LAW-EMINENT DOMAIN-DIMINU
Story says: “Where the trust is defined in its object, WATER-POWER NOT A “TAKING"-CONSE
and the purchase-money is to be re-invested upon QUENTIAL DAMAGE — LANDS DAMAGED OUTSIDE OF
trusts which require time and discretion, or the acts STATE.-Remote and consequeutial damage, such as of sale and re-investment are manifestly contemplated the diminution of water-power, accruing to land from to be at a distance from each other, the purchaser improvements to the navigation of the water-ways of shall not be bound to look to the application of the a State authorized by the Legislature thereof, do not
purchase- money; for the trustee is clothed with a disamount to a “taking” within the meaning of the Con- cretion in the management of the trust fund, and if stitution, and the Legislature is empowered to author
any persons are to suffer by his misconduct, it should ize such improvements without reference to such con- be rather those who have reposed confidence, than sequential damage to land within the State; but the those who have bought under an apparently authorLegislature has no power to cause such damage to the ized act." The case just cited seems to be directly in owners of laud in other States. “Acts done in the point. In the case now under consideration the sale proper exercise of governmental powers, and not di- was effected in Baltimore, and the trustee must seek rectly encroaching upon private property, though for property located either in the city or county of St. their consequences may impair its use, are universally Louis, where a re-investment is directed to be made. held not to be a taking within the meaning of the con- The execution of the power requires the exercise of a stitutional provision. They do not entitle the owner wide discretion, involves the consumption of much of such property to compensation from the State or
time, and presents to the purchaser the very serious its agents, or give him any right of action. This is obstacle of distance between the place of sale and that supported by an immense weight of authority. * * *
of re-investment. It is unnecessary to multiply the We have examined the decisions of the courts of Illi citations of authorities, because the very recent case pois, and others to which we have been referred by
of Van Bokkelen v. Tinges and Sargeant, trustees, 58 the plaintiffs in error, but in none of them was it de- | Md. 57, seems to determine the question. In that case cided that a riparian owner on a navigable stream, or the court, adopting the language of the notes to Elliott that an adjoiner on a public highway, can maintain a v. Merryman, 1 White & Tudor's Lead. Cases in Eq., suit at common law against public agents to recover 118, 119, said: “All the cases seem to agree, that where consequential damages resulting from obstructing a the disposition of the proceeds depends in any matestream or highway in pursuance of legislative author. rial particular, upon the discretion of the trustee, or ity, unless that authority has been transcended, or un- where an interval must or may properly elapse between less there was a wanton injury inflicted, or careless- the sale and the application of the purchase-money, ness, Degligence, or waut of skill in causing the ob- the purchaser will be freed from liability by a payment struction." Transp. Co. y. Chicago, 99 U. S. 635. Iu to the trustee, and will not be responsible for a subsethis case the injury will be caused to property beyond quent misappropriation by the latter." And it is the limits of Comuecticut, and the question arises further added “that where a trustee is required to sell whether the doctrine which has been asserted is ap- and re-invest for the same trusts or purposes, the purplicable to this state of facts. This question has never, chaser will be discharged from responsibility for the so far as I can ascertain, been decided by the courts of application of the money paid by him to the trustee." this country. The question has arisen, whether by Keister v. Scott. Opinion by Yellott, J. virtue of the right of eminent domain, one State can
BANK take or subject to publio use land in another State,
TITLE - OF
FICERS--SUPERSEDED.-Where money is deposited in and the decisions have naturally been against such a
bank by a board of examiners, as such-in their offipower. Farnum v. Canal Corp., 1 Sumn. 46 ; Salis
cial relation-and they ará superseded in office by the bury Mills v. Forsaith, 57 N. H. 124; Wooster v. Great appointment of a new board, the money so deposited Falls, etc., Co., 39 Me. 246; United States v. Ames, 1 belongs not to the former board but to the latter, and Wood. & M. 76. In two cases which have recently is subject to their check. Ju Lewis v. The Park Bank, arisen in Federal courts, and which involved the right 42N. Y. 463, Platt, the chamberlain of New York
city, deposited the funds of the city in the Park Bank; of a State to regulate or to improve the navigation of
Devlin was appointed his successor, who designated a river wholly within its limits, the judges have care
the Broadway Bank as his depository, and upon a fully limited their decisions to the facts in the cases, mandamus the Park Bank was required to pay to the Escanaba Co. v. Chicago, 107 U. S. 678; 2 Sup. Ct. Rop. Broadway Bank the money thus deposited by Platt. 185; Huse v. Glover, 15 Fed. Rep. 296. Important sug
The court decided, it is true, that the Broadway gestions which bear upon the question in this case are
Bank was not entitled to recover damages alleged to made by Judge Treat in Rutz v. St Louis, 7 Fed. Rep.
have been sustained by the delay of the Park Bank
in paying over the fund, because it bad no interest in 438, and by Mr. Justice McLean in Palmer v. Com’rs
the fund until it had been deposited; and until this Cayahoga Co., 3 McLean, 226. See McKeen v. Dela
was done the relation of debtor and creditor did not ware Dir. Can. Co., 49 Penn. St. 424. Cir. Ct., D. exist. Aud so in Swartwout v. Mechanics Bank of Conn., April 23, 1884. Holyoke Water-Power Co. v. New York, 5 Denio, 555, where the plaintiff, collector Conn. River Co. Opinion by Shipman, J.
* Appearing in 61 Maryland Reports,
for the port of New York, kept an account with the ment during his sickness; (4) that as the proof showed defendant in the name of Samuel Swartwout, collector, that the services of the complainant were rendered in and the bank claimed the right to apply the money good faith, and his charges appeared to be fair and thus deposited to an indebtedness on the part of the moderate, his claim should be paid out of the income, United States to the bank, and the court held that if
or the accumulated income in the hands of the trusthe money did in fact belong to the United States the tees, if sufficient for that purpose. Pole v. Pietsch. Opinplaintiff could not recover, but the mere fact that it ion by Robinson, J. was deposited in the name of the plaintiff collector CONTRACT-SPECIFIC PERFORMANCE-MISTAKE-REwas not sufficient to warrant the conclusion that the
FORMATION.-If a contract respecting real property be money belonged to the government. Carman v. Frank- in writing, and is certain, fair in all its parts, for an lin Bank. Opinion by Robinson, J.
adequate consideration, and capable of being perFRAUD-CONVEYANCE IN, OF CREDITORS-PLEADING formed, it is as much a matter of course for a court of -"HINDRANCE.” (1) The motive or purpose with equity to decree specific performance of it, as it is for wbich a roluntary transfer of property is made by a a court of law to give damages for a breach of it. party indebted at the time is not material. The legal Smoot v. Rea, 19 Md. 398. It is well-settled law in this effect of such a conveyance is, that without reference State, as well as the established doctrine in this counto the actual intent of the debtor, it is prima facie in try, that it is competent for a complainant in a bill for fraud of creditors. This presumption of law may be specific performance to allege and prove by parol a misrepelled by proving that the grantor, at the time of take in a written contract, have it rectified, and specithe gift, was possessed of other means amply sufficient fically executed as reformed. Moale v. Buchanan, pay to all his debts, and the onus of so proving is upon 11 G. & J. 314; 1 Story Eq., § 161, and note; those seeking to uphold the gift. Baxter and Wife v. Waterman on Spec. Perf., $ 379. A written contract Sewell, 3 Md. 334; Williams v. Banks, 11 id. 198; for a lease, which was intended to be for the term of Whedbee v. Stewart, 40 id, 414. (2) In a bill in equity, ninety-nine years, renewable forever, contained no brought to set aside a voluntary conveyance as in
statement of the term for which the lease was to be fraud of creditors, it is not necessary to aver that the
made. A bill was filed by the lessors for a reformagrantor was not at the time of filing the bill, as well as tion and specific performance of the contract, and alat the date of the execution of the conveyance, pos. leging that the length of the term of the demise sessed of ample means outside, to pay all his credi- agreed upon had been omitted from the written contors. The date of the impeached conveyance is the
tract by mistake or oversight. Held, that the mistake particular time when the sufficiency of the debtor's having been established by the parol proof in the case, means is to be inquired into. Bump on Fraud Conv. the complainants were entitled to have the contract 234; King v. Thompson, 9 Pet. 204; Posten v. Posten, reformed by the insertion of the words, "for the term 4 Whart. 27. (3) It is a hindrance to creditors for a of ninety-nine years, renewable forever,” or words of debtor to dispose of his real property and tangible like import; and when so reformed, to have the agreechattels, which are readily subjected to execution, and
ment specifically executed. Popplein v. Foley. Opinion compel them to rely upon merely personal obligations, by Miller, J. with the risks and the necessity for numerous attachments usually incident to such a resource.
COLORADO SUPREME COURT ABSTRACT. Worthington, 2 Md. Ch. Dec. 99; Warner v. Dove, 33 Md. 586. Goodman v. Wineland. Opinion by Ritchie, J.
MANDAMUS-COUNTY CLERK---COPYING RECORDS.WILL-DISCRETION OF TRUSTEE-WHEN COURT CAN
While records of the county clerk's office are to be
open to any person for inspection during business NOT INTERFERE-MEDICAL SERVICES TO CESTUI QUE hours, the clerk is not to be compelled by mandamus TRUST-ENFORCEMENT OF CLAIM.- A testator gave his
to allow private parties to occupy his office for months, estate to his widow and sou-in-law iu trust for his
in order to make abstracts of the entire record of the children by a former marriage; the income to be invested until the youngest of them should come of age,
county, for the sole purpose of securing future private
emolument by the sale of abstracts thus obtained, and and then said estate to be equally divided among such of his said children as should then be living, and the
to continue to occupy it daily thereafter, abstracting
the conveyances as they are filed. Buck v. Collins, 51 descendants of any deceased child, per stirpes. He further directed the trustees to allow, from time to
Ga. 391 ; Webber v. Townley, 43 Mich. 534 ; 5 N. W.
Rep. 971; see also 16 id. 314. Bean v. People. Opinion time, so much of the income as they in their discre
by Helm, J. tion should think proper, for the education and sup- [Decided Feb. 15, 1984.] port of his minor children by said former marriage. One of said children died before arriving at age. On EJECTMENT-TENANTS IN COMMON a bill filed against the trustees by a physician, to com- MISTAKE OF RECORDER.-(1) In an action of ejectment pel the payment by them of his bill for medical ser- one tenant in common may recover possession of the vices rendered said child during his sickness, it was entire tract as against all persons but his co-tepants. hell, (1) that in the exercise of the discretionary power Mahoney v. Van Winkle, 21 Col. 583; Hart v. Robertconferred on the trustees, a court of equity had no son, id. 348. (2) Actual possession is prima facie evi. right to interfere, prorided it was honestly and reason- dence of title; as we said in Lebanon M. Co. v. Con. ably exercised; (2) that they must however act in good Rep. M. Co., 6 Col. 380, “entering upon premises in faith, having a proper regard to the wishes of the tes- the actual possession of another for the purpose of tator, and the nature and character of the trust re- performing the acts necessary to constitute location posed in them. Clark v. Parker, 19 Ves. 1; French v. and possession amounts only to a trespass, and cannot Davidson, 3 Madd. 396; Kemp. v. Kemp, 5 Ves. 849; (3) form the basis for the acquisition of title.” (3) It is that the proof in the case showed that the discretion immaterial to the defendants whether this action be reposed in the trustees by the testator had not been brought in the name of the several co-owners of fairly and reasonably exercised : and a court of equity the claim or in the names of a portion thereof; and an on application would have directed part of the income amendment of the complaint so as to induce all the cofrom the trust estate to have been applied to the sup- owners claiming under the same title cannot prejudice port of the said minor child; and have directed further the defendants. (4) The record does not show that the that he should be furnished with proper medical treat- plaintiffs afterward joived were made parties without
their consent, and the presumption is, that being proper parties, they all consented to become plaintiffs, oiherwise those not consenting would bave been joined as defendants. (5) The certificate having been correctly made out, a mistake of the recorder in recording the same cannot avail the defendants herein; the plaintiffs are mot responsible for it. Myers v. Spooner, 55 Cal. 258. Weise v. Barker. Opinion by Beck, C. J. [As to (5) see 45 Am. Rep. 189--190.-ED.) [Decided Feb. 8, 1884.)
KANSAS SUPREME COURT ABSTRACT.*
JANUARY TERM, 1884.
PROMISSORY NOTE - SEVERAL SECURED MORTGAGE-ORDER OF PAYMENT-WHEN PRO RATA. It is a general rule that where two or more notes, secured by a single mortgage,fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless some agreement or some paramount equity would require a different order of payment. Richardson v. McKim, 20 Kans. 350. and cases there cited: 2 Jones ou Mort., [ 1699, and cases there cited. And where two or more notes, secured by a single mortgage, fall due on the same day, and the mortgage fund is not sufficient to pay the entire amount of the notes, the notes should be paid pro rata out of the mortgage fund, unless some agreement or paramount equity would require a different mode of payment.
And these rules apply, whether the notes are still held by the original mortgagee or are held by him and others, or entirely by others. Where T., as the agent of A., sold agricultural implements to M., and took several promissory notes in payment therefor, executed by M. to A. or order, to become due at different times, and also took a chattel mortgage executed by M. to A.on these agricultural implements to secure the payment of these notes; and in accordance with a previous agreement and understanding between T. and A., two of these notes were delivered to T.for his services and as a commission in effecting the sale, and the other notes were retained by A., some of which became due before and some of them at the same time as the notes delivered to T.; and afterward T. sold his notes to W., and transferred the same merely by de. livery; and no assignment, written or otherwise, was ever made, either of the notes or the mortgage or any interest in the mortgage, except by a mere delivery of the said two notes, held, that the notes delivered to T. and then sold and delivered to W., and falling due at the same time or subsequently to those retained by A., are not entitled to priority of payınent out of the mortgage fuud over those retained by A, Altman- Taylor Company v. McGeorge. Opinion by Valentino, J. [As to first point see 121 Mass. 121 ; 27 Alb. L.J. 178, 397; 16 Eng. R. 275.--Ed.]
STATUTE OF FRAUDS-PAROL LEASE-PART PERFORMANCE.-- Where the owner of a piece of land, through his agent and by parol, leases the land for the term of six years, held, that the lease is void under the act relating to frauds and perjuries. But where the lessee, by virtue of the lease, takes possession of the leased property, and continues in the possession thereof for over five years, and plants, cultivates and raises hedge fences thereon, breaks up the ground and cultivates the same, builds houses and digs wells on the land and pays all the taxes thereon, such lease will be taken out of the statute of frauds, by virtue of a part performauce of the contract, and will be valid for the full terni of the lease. That said lease was void under the statute of frauds, when it was originally made, and be. fore any portion of the same was executed, we think
* Appearing in 31 Kansas Reports,
there can be no doubt. Stat. of Frauds, Comp. Laws of 1879, ch. 43, SS 5, 6; Wolf v. Dozer, 22 Kans. 436; Powers v. Clarkson, 17 id. 218; Carr v. Williamis, id. 575, 582; Franklin v. Colley, 10 id. 260; Moore v. Wade, 8 id. 380. All parol leases exceeding one year in duration are void under said statute, unless partially performed, and are generally void, even then, as to the part not performed. Generally where a parol lease is made for a term not exceeding one year, and the lessee takes possession of the property, and pays a portion of the rent, but does nothing more than this, the lease will be considered valid, but valid only to the extent of creating a tenancy-at-will, or a tenancy from month to month, or a tenancy from year to year, according to the circumstances of the case. Sedg. & Wait on Trial of Title to Land, $ 379, and cases there cited; Reeder v. Sayre, 70 N. Y. 180; Lounsbery v. Snyder, 31 id. 514; Schuyler v. Leggett, 2 Cow. 600. Mere possession or mere payment rent will not, as a general rule, make a parol lease for more than one year valid for the full term. But parol leases exceeding one year, as well as other parol contracts with regard to real estate, may sometimes be taken out of the statute of frauds by a part performance of the contract, and by such part performance be made valid to their full extent. Tayl. Land. & Ten., $ 32; Grant F. Ramsey, 7 Ohio St. 157. But parol leases for more than one year, in order to become valid by a part performance, should generally be such as would by such part performance become substantially a purchase of an interest in the real estate. Such, we think, is the present lease. Bard v. Elston. Opinion by Valentine, J.
HOMESTEAD-EFFECT OF WILL.- Where a husband and wife occupy a piece of land as a homestead, the title being in the husband, the husband may execute a valid will giving the entire property to his wife. And in such case, and as against an heir who does rot occupy the property as a homestead, the will will take effect immediately after the death of the testator and the probate of the will, although the will may state that the testator devises the property to his wife after paying all his legal indebtedness. The question as to how homestead property shall descend is discussed to some extent in the cases of Vandiver v. Vaudirer, 20 Kans. 501, and Dayton v. Donart, 22 id. 256. The 11ature of a will is to some extent discussed in the case of Comstock v. Adams, 23 Kans. 514, 524. When death occurs the title of the property of the person dying must be transferred to some person. It cannot remain in the deceased; and the will simply designates where the title shall go. The title may go to one or more of the persons occupying the property as a homestead, or it may go to some other person. In the present case the will provided that the title should go to the only surviving person who occupied the property at the time as a homestead. The plaintiff says this is in contravention of the homestead-exemption laws, and says :hat the title should go to the son of the deceased, who did not occupy the property as a homestead, and who resided in another State. We are now speaking of the title to one undivided half only of the property; for it is conceded by all the parties that the title to the other undivided half went to the wife of the deceased. We think the will is valid. Murtindale v. Smith. Opiu. ion by Valentine, J.
ILLINOIS SUPREME COURT ABSTRACT.*
MASTER AND SERVANT" FELLOW SERVANT"-OCES. TION FOR JURY-OPINION OF EXPERT-EVIDENCE OF ROAD MASTER.–To constitute servants of the same master“ fellow servants" within the rule respondeat
* To appear in 108 Illinois Reports.
superior, it is not enough that they are engaged in do- clusive right and title of the grantee to the center ing parts of the same work, or in the promotion of the thread of the current, unless the terms of the grant same enterprise carried on by the master, not requir- clearly denote the intention to stop at the margin of ing co-operatiou, or bringing them together, or ir, such the river, has been too long established and too firmly relations as that they may have an influence upon each adhered to by this court to be now questioned. Vilother, but it is essential that at the time it is claimed lage of Brooklyn v. Sunith, 104 Ill. 429; Cobb v. Lavalle, such relation exists they shall be directly co-operati 89 id. 331. Chicago and Pacific R. Co. v. Stein, 75 with each other in the particular business in haud, or id. 41; Braxon v. Bressler, 64 id. 488; Chicago v. Laflin, that their usual duties shall bring them into habitual 49 id. 172; Board of Trustees v. Haven, 11 id. 554; consociation so that they may exercise an influenceupon Same v. Same, 5 Gilm. 548; Middleton v. Pritchard, each other promotive of proper caution. (2) In a suit 3 Scam. 510. In Rockwell v. Baldwin, 53 III. 19, against a railway corporation to recover for negligence it was however said that this was but a presumption, resulting in the death of a section foreman having for one man may own the bed of such a stream ebarge and oversight of repairs upon a certain part of and another may own the banks; that where, in a deed the road track, it is error to instruct tbe jury that conveying land, the boundary is limited to the bank of such foreman is not engaged in the same line of duty the stream, instead of bounding it along or on the with an engineer and fireman running with the defend- stream, the presumption must fail, and that the party ant's locomotive engines, and therefore not within the must be controlled by the terms of his deed. Counsel rule which exempts the common employer from liabil- for appellant insist this is conclusive of the present ity to one of its employees for damages resulting from case, for here defendant's boundary is limited to the the fault, etc., of a fellow servant. Whether such per- banks of the Desplaines river. The question of intensons were so operating and consociating is a question tion must be settled by the language of the deed and of fact for the jury, and not of law. Wabash Ry. Co. all the attendant circumstances in evidence, and not F. Elliott, 98 III. 481; Pennsylvania Co. v. (onlan, 101 merely by the letter in the descriptive part of the id. 93; Chicago & Alton R. Co. v. Bonifield, 104 id. 223; deed. Hadden v. Shoutz, 15 III. 582; Batavia Manuf. Indianapolis & St. Louis R. Co. v. Morgenstern, 106 id. Co. v. Newton Wagon Co., 91 id. 239; Louisville and 216. In the last named case we said: “The definition Nashville R. Co, et al. v. Koelle et al. 104 id. 460. See of fellow servants may be a question of law, but it is al- also Miller v. Beeler, 55 III. 63; Kamphouse v. Gaffner, ways a question of fact, to be determined from the evi- 73 id. 453; Oxten v. Graves, 68 Me. 371; 28 Am. Rep. dence, whether the particular case falls within the defi- 75. Piper v. Connelly. Opinion by Scholfield, J. nition." (3) In an action to recover for an injury received from the falling or throwing of a piece of coal or slate from a passing locomotive upon a railroad, it is
MISSOURI SUPREME COURT ABSTRACT.* error to allow a witness to be asked and to testify what be considers a safe distance to retire from the track
JURISDICTION-CIVIL-NOT ACQUIRED BY USE OF when the traiu is passing. Whether the line of danger from a passing train is at one distance rather than an
CRIMINAL PROCESS-PRACTICE.- The criminal process
of the State cannot be used to take a person from one other depends upon facts, and not opinions. This does not fall within the rule as to expert testimony, and the
county to another, so as to subject him to civil process allowance of such opinions to be given is to usurp the
in the latter county. Where it is so used the facts may functions of the jury. Hopkins v. Indianapolis, etc.,
be set forth by an answer in the nature of a plea to the R. Co., 78 III. 32; Pennsylvania Co. v. Conlan, supra.
jurisdiction, and will constitute a good defense. Capi. (In a suit to recover for an injury of the plaintiff's in
tal City Bank v. Kuox, 47 Mo. 331; Marsh v. Bast, 41 testate, received from a passing train while he was en
id. 493; Graham v. Ringo, 67 id. 324. Byler v. Jones. Raged in repairing the track, the defendant, a railway Opinion by Martin, Comr. company, called as a witness one occupying the posi- CORPORATION-STOCKHOLDER'S LIABILITY--SET-OFF. tion of road master of a part of the road at the time of -In a proceeding under the statute by motion for exthe injury, who testified tbat he had given the intes- ecution against a stockholder, the stockholder is entate instructions a number of times about getting out titled to off-set against his liability any demand he of the way of trains, etc. Plaintiff in rebuttal called may have against the corporation. Citing Briggs v. several of the other men who worked with the de- Penniman, 8 Cow. 387; Tallmadge v. Fishkill Iron Co., ceased, and proved by them severally that the road 4 Barb. 332; Matter of the Empire City Bank, 18 N. Y. master gave them no such instructions. Hell, that 199; Agate v. Sands, 8 Daly, 67; 73 id. 620; Garrisou the latter evidence was improper, as not tending to v. Howe, 17 N. Y. 458; .Mathez Neidig, contradict the road master, he having testified only as 72 id. 100; Briggs Cornwell, 9 Daly, 436; to instructions given to the person who was injured.
Wheeler v. Millar, 90 N. Y. 354; Buchanan v. Meisser, Chicago, etc., R. Co. v. Moranda. Opinion by Schol- 105 III. 638; Gauch v. Harrison, 12 Bradw. 457 ; Meisfield, J.
ser v. Thompson, 9 id. 368; Grose v. Hilt, 36 Me. 22; LICENSE-LIQUORS-PERMIT OF MUNICIPAL AUTHORI
Hillier v. Ins. Co., 3 Penn. St. 470, Lawrence v. NelTIES. - Where a permit to sell intoxicating liquors for
Bon, 21 N. Y. 158; Mathews v. Albert, 24 Md. 527; medicinal purposes, etc., is granted to a druggist in
Boyd v. Hall, 56 Ga. 563; Sawyer v. Hoag, 17 Wall. pursuance of an ordinance by the authorities of an in
610; Scovill v. Thayer, 105 U. S. 152; Barnes v. Mccorporated village, the village will not be permitted to
Mullius, 78 Mo. 200; Webber v. Leighton, 8 Mo. App. insist it was not a sufficient warrant for the sale of
502. Jerman v. Benton. Opinion by Martin, Comr. liquors under it, in accordance with its terms. On a NEGOTIABLE INSTRUMENT - CHECK prosecution by the people a different question would be
ASSIGNMENT.- The drawing of a check
upon presented. But a municipal corporation will not be
bank for part of the drawer's deposit does allowed to license an act to be done, and then collect a
not transfer to the holder a legal or equitable penalty for the doing of it as for an illegal act. Martel
claim pro tanto to such money, nor create any lien , City of East St. Louis, 94 III. 67. Village of Genoa v.
thereon in his favor. St. John v. Homans, 8 Mo. 382; Van Alstine. Opinion by Scott, J.
MoGrade v. German Sav. Bk., 4 Mo. App. 330; Thomps BOUNDARY-CENTER OF STREAM-PRESUMPTION.
son v. Riggs, 5 Wall. 563; Bauk v. Whitman, 94 U, S. The general doctrine that grants of land bounded upon
343; Christinass v. Russell, 14 Wall. 69; Bank v. Wilrivers or their margins, above tide-water, carry the ex
*Appearing in 79 Missouri Reports.