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Vaughan v. Davies, 2 H. Bl. 440; Hall v. Ody, 2 B. & NEW YORK COURT OF APPEALS ABSTRACT.
tended to be put, or the structures intended to be In Collett v. Preston, 15 Beav. 458, an application to built thereon, will tend incidentally to benefit the pubset off costs recovered by B. against A., against costs lic by affording additional accommodations for busirecovered in a suit respecting the same matter, by A. ness, commerce or manufacture, is not sufficient to against B., was refused, because it would interfere bring the case within the right of eminent domain, so with the solicitor's lien; see Nicholson v. Norton, 7 long as the structures are to remain under private Beav. 67.
ownership or control, and no right to their use or to Iu Ex parte Cleland, L. R., 2 Ch. App. 808, C.'s solici- direct their management is conferred upon the public, tor was held entitled to a lien on costs ordered to be and the taking for such a use without the consent of paid to C. by D., as against a debt due from C. to D., the owner cannot be authorized by statute. Accordat the time when D. made an assignment for the bene- ingly held that the provision of the act of 1881 (Ch. fit of his creditors.
667, Laws of 1881), purporting to authorize the E. B. Some American cases hold that the solicitor's lien is W. & M. Co. to acquire title to lands by proceedings subordinate to equities existing between the parties in invitum, was unconstitutional and void. Matter of to the judgment, Porter v. Laue, 8 Johns. 357; Ross v. Eureku Basin, etc., Co. Opinion by Rapallo, J. Dole, 13 id. 306: People v. Manning, 13 Wend. 649; [Decided May 6, 1884.] Crocker v. Claughly, 2 Duer, 681: Shirts v. Irons, 54
MORTGAGE FORECLOSURE RAILROAD STOCKInd. 13; E.c parte Lehman, 59 Ala. 631; even after the
HOLDER, RIGHTS OF - LACHES-FORFEITURE. —After judgment has been assigned to the attorney, as secur
the foreclosure sale the only property interest which ity for his costs, Cooper v. Bigalow, 1 Cow. 206;
a stockholder of the old company has left is in the Wright v. Treadwell, 12 Tex. 252; unless the claims sought to be set off arise out of other matters, Carter surplus, if any, after satisfying the mortgage and v. Bennett, 6 Fla. 215; Robertson v. Shutt, 9 Bush, 659; him whether he will come in under the plan and join
other preferential claims. It is entirely optional with Mohawk Bank v. Burrows, 6 Johns, Ch. 317; and no
the new company. All the statute secures to him is the tice of the lien has been given by the attorney, Hurst
option or privilege to join the new company by a com7. Sheets, 21 Iowa, 501; Andrews v. Morse, 12 Conn.
pliance with the terms of the plan. If he elects to 444; Learenson v. Lafontane, 3 Kan. 523; Peckham v.
join the new company, then he gets a proportional inBarcalow, Hill & Deu. 112; Johuson v. Ballard, 44 Ind.
terest therein which may be of great value to him. 270; Daniels v. Pratt, 6 Lea, 443; see Newbert v. Cun
But his right to join the new company, so far as it deningham, 50 Me. 231; Walker v. Sargeant, 14 Vt. 247. The lien of the attorney however in an assigned judg. six months." If he fails within that time to exercise
pends upon the statute, must be exercised “ within the ment is now generally recognized as superior to any
his right by assenting to the plan, and thus becoming right of set-off as to the judgments between the parties,
a party thereto, he cannot take or claim any rights Terney v. Wilson, 16 Vr. 282; Shapley v. Bellows, 4 N.
under the plan. It is clearly a condition precedent H. 347; Duukin v. Vandenbergh, 1 Paige, 6:22; Grid
that he must signify his assent to the plan within six ley v. Garrison, 4 id. 617 (but see Nicoll v. Nicoll, 16
months. If he fails to do so, he forfeits no property, Wend. 446); Zogbaum v. Parker, 55 N. Y. 120; Firme
as that was swept away by the foreclosure sale; he nich v. Bovee, 1 Hun, 532; Prouty v. Swift, 10 id. 232;
loses simply the right or privilege to join and become Davidson v. Alfaro, 16 id. 353; 80 N. Y. 660; Eberhardt
interested in the new company, and thus to acquire an v. Schuster, 10 Abb. N. C. 374; Currier v. Boston R.,
interest in property. That is a forfeiture, if it can 37 N. H. 223; Boyer v. Clark, 3 Neb. 161; Rice v. Garn
properly be so called, which the law imposes, and hart, 35 Wis. 282; Warfield v. Campbell, 38 Ala. 5:27;
against which the courts can give no relief. Story Renick v. Ludington, 16 W. Va. 378; Diehl v. Fries
Eq. Jur., $S 1325, 1326; Robinson v. Cropsey, 2 Edw. ter, 37 Ohio St. 473; Brown v. Bigley, 3 Tenn. Ch. 618;
Ch. 138; Gormau v. Low, id. 324; Weed v. Weed, 94 N. Wells v. Elsam, 40 Mich. 218; Ripley v. Bull, 19 Conn.
Y. 243. In such a case equity cannot relieve him from 53: Stratton v. Hussey, 62 Me. 289; even where the
the performance of the condition precedent, and thus judgment songht to be set off was recovered before
vest him with rights of property which he did not the other judgment, Benjamin v. Benjamin, 17 Conn.
otherwise have. City Bank v. Smith, 3 Gill & J. 265; 110; Ely v. Cooke, 2 Hilt. 406; 28 N. Y. 365; Perry v.
Bapham v. Bamfield, 1 Vern. 83. It would lead to inChester, 53 id. 240; Ennis v. Curry, 22 Hun, 584; Nay.
tolerable inconvenience, confusion and difficulty if the lor v. Lane (N. Y.), 29 Alb. L. J. 212; see Dingee v.
stockholders of the old company could in such a case Shears, 29 Hun, 210; Stillman v. Stillman, 4 Lea, 271;
take their own time to assent to the plan of reorganiJeffres v. Cochrane, 47 Barb. 557; 6 Alb. L. J. 198;
zation, and to assert their right to become members of Prince v. Fuller, 34 Me. 122; Neil v. Staten, 7 Heisk.
the new company upon such facts as they would be 290. See further, 1 Am. Law Reg. (N. S.) 419, note.
able to establish in a court of equity. Vatable v. N. Especially where the judgment has been assigned to Y. Lake Erie & West. R. Co. Opinion by Earl, J. the attorney as security for his costs. Rumrill v. Hunt
[Decided May 6, 1884.) ington, 5 Day, 163.
TRUST VALID -- MORTGAGE TO SECURE CLAIMSA defendant against whom a judgment has been re- STATUTES AS TO ASSIGNMENT-PRACTICE-AMENDMENT covered cannot, by thereafter purchasing a judgment -DISCRETION.-(1) A conveyance by a solrent debtor, agaiust the plaintiff, offset it so as to defeat the at- of a portion of his property to trustees, to pay a portorney's lien. Bradt v. Koon, 4 Cow. 416.
tion of his creditors, containing a provision that any The attorney must prove clearly what is the amount surplus after execution of the trust shall be returned
to him, is not as matter of law fraudulent and void as of his costs and disbursements, Hooper v. Brundage,
to creditors not provided for. A conveyance of real 22 Me. 460; Adams v. Lee, 82 Ind. 587; Ocean Ins. Co.
estate upon such a trust is authorized by the Revised v. Rider, 22 Pick. 210; and move promptly to secure Statutes (1 R. S. 728, $ 55), and an assignment of perhis lien. Holt v. Quinby, 6 N. H.79; see Stone v. Hyde, gopal property upon such a trust, with a reservation 22 Me. 318.-J. H. STEWART, REP.
of the surplus, does not violate the statute against per
son al uses. 2 Rev. Stat. 135, $ 1; Cooper v. Whitney, deducting them from the debts, legacies and expenses 3 Hill, 95; Curtis v. Leavitt, 15 N. Y. 9. (2) An insolv- of administration. It is undoubtedly true tbat an inent, and even a solvent debtor cannot convey all his terest given in oue clause of a will, in terms deuoting property to trustees to pay a portion of his creditors, an absolute estate, may by force of a subsequent with a provision that the surplus shall be returned to clause, be qualified by a limitation over in a certain him, leaving his other creditors unprovided for; be-event, or be cut down or made to take effect only on a cause such a conveyance ties up his property in the contingency. Tbis is but the application of a familiar hands of his trustees, places it beyond the reach of his rule, that the construction of a will or other instrucreditors by the ordinary process of the law and thus ment is to be made upon the whole words and not hinders and delays them, and is therefore void as to upon a part only, and that a particular word or clause the creditors unprovided for. But there is no rule of may, in the light of other words or clauses, mean more law and no reason for holding that a solvent debtor or less than it imports, considered singly or by itself may not devote a portion of his property, by a trust alone. Taggart v. Murray, 53 N. Y. 233. But there is deed, to the payment of a portion of his creditors, and another rule of construction of equal force and not inif he leaves property sufficient for the payment of his consistent with the one just stated, and that is that other creditors, they have no just or legal ground of when an interest is given or an estate conveyed in oue complaint. Here there was evidence justifying the clause of an instrument, it cannot be cut down or referee in finding that upon the execution of the trust taken away by raising a doubt from other clauses, but deed assailed, the assiguor had ample property to pay only by express words or by clear and undoubted imall his creditors not mentioned in that deed. (3) That plication. Thornhill v. Hall, 2 Cl. & Fin. 22; Roseany debtor, whether solvent or insolvent, may, acting boom v. Roseboom, 81 N. Y. 356. The surrogate disin good faith, mortgage a portion or the whole of his allowed the claim of the mother of the testatrix to property to secure one or more of his creditors for any said one-sixth, and directed the whole residuary estate indebtedness, cannot be doubted. The referee found to be invested and retained by the executor until the that the assigner was at the time solvent, and it has | infant child died or became of age; the mother did never been questioned that such a debtor may mort. not appeal. The executor appealed in 1880 from other gage bis property to secure existing claims as well as parts of the decree. In her answer to the appeal, the future loans and advances. Hendricks v. Robinson, 2 mother alleged said portion of the decree to be erronJohus. Ch. 283; Leavitt v. Blatchford, 17 N. Y. 521;
Held, that the General Term had jurisdiction Dunbam v. Whitehead, 21 id. 131; Robinson v. Will- to review and to reverse said decision. Rule 42 of Sup. iams, 22 id. 380; Ackerman v. Hunsicker, 85 id. 43; 39 Ct., rule (1878); Code of Civ. Pro., $ 2587. Freeman v. Am. Rep. 622; Simons v. First Nat. Bank, 93 N. Y. Coit. Opinion by Andrews, J. 269. (4) The statutes regulating assignments for the [Decided May 6, 1884.] benefit of creditors (Ch. 348, Laws of 1860; ch. 860, Laws of 1867 ; ch. 92, Laws of 1870, and ch. 838, Laws of 1872) have reference only to general assignments made UNITED STATES SUPREME COURT ABby insolvent debtors for the benefit of all their credi
STRACT. tors. (5) Where the court has power to order a complaint to be amended and other parties brought in, it
JURISDICTION—FEDERAL QUESTION-PUBLIC LAWis not bound to exercise that power, and may dismiss the complaint without prejudice to the right to bring tion in this case.
DECISION OF STATE COURT.-There is no Federal quesanother action. Knapp v. McGowan, Assignee. Opin the treaty of Guadalupe Hidalgo to the lands in dis
The right of San Francisco under ion by J.
pute as pueblo lands is not denied. Precisely wbat that [Decided May 6, 1884.]
right was may not be easy to state. Mr. Justice Field WILL-LIMITATION OVER-INTEREST QUALIFIED-speaking for the court, said, in Townsend v. Greely, 5 SUBSEQUENT CLAUSE.—The will of S., after giving cer- Wall. 336: “It was not an indefeasible estate; ownertaiu legacies, gave in case of her leaving any child or ship of the lands in the pueblos could not in strictness children her surviving, two-thirds of her residuary es. be affirmed. It amounted in truth to little more tate to her executors in trust for the benefit of such than a restricted and qualified right to alienate porchild or children until of age, with remainder in fee to tions of the laud to its inhabitants for building or cul. the children on arrival of age; the remaining one- tivation, and to use the remainder for commous, for tbird was given to her husband and mother to be pasture lauds, or as a source of revenue, or for other equally divided between them. The will then pro- purposes. This right of disposition and use was in all vided that in case of the death of all the children of particulars subject to the control of the goverment of the testatrix (if she had any), after her death and be the country.” This definition was accepted as subfore they became of age, her husband should receive, stantially accurate in Grisar v. McDowell, 6 Wall. 372, out of her estate in full of all claims under the pro- and Palmer v. Lowe, 18 U. 8. 16. The act of July 1, visions of the will, the sum of $20,000 theretofore 1864, ch. 194, $ 5, 13 Stat. 333, simply released to the loaned to him by the testatrix, and the residue was the city all the right and title of the United States in given to her mother. In case she left no surviving the lands (Hoadey v. San Francisco, 94 U. 8. 5), and children the testatrix gave to her husband said $20,- thus perfected the incomplete Mexican title for the 000 and the residue of the estate to her mother. The uses and purposes specified. Palmer v. Lowe, supra. testatrix died leaving her husband, one child, an in- Its effect was to surrender all future control of the fant, and her mother. In proceedings for an account | United States over the disposition and use of the ing by the executors, held that the clause providing property by the city. The only controversy in this for the case of the death of the children under age was case is as to the effect of the alcade grant of the pueblo solely intended to dispose in that event of the two-title; and the precise question submitted to the Suthirds previously given to them, and did not affect the preme Court of the State for determination was gift of the one-sixth to the mother, and that she took "whether, after the conquest, * * and before an absolute title to said one-sixth upon the death of the incorporation of the city of San Francisco, and be the testatrix; also held that there was no error in com- fore the adoption of the Constitution of the State of pelling the account of said one-sixth interest upon the California, a person exercising the functions of an alaggregate of the priucipal and interest of the whole calde of the pueblo of San Francisco * * * * could estate up to the time of the surrogate's decree, after make a valid grant of pueblo lands, as such officers bad
the strength of meager and indefinite testiinony. (3) An agreement for the sale of lands examined, in an action to enforce a vendor's lien, and the time from which interest should be allowed to the vendor on the price of the lands determined. Baines v. Clarke. Opinion by Waite C. J.
REMOVAL OF CAUSE-FORCING HEARING-ACT OF MARCH 3, 1875—WHEN RIGHT TO REMOVE LOST.-(1) Where a case is removed from the State to the United States court, and a party is forced to a hearing in the latter, although the petition for removal was filed too late, and a motion to remand refused, the party having saved his rights by record may have the error corrected in the appellato court after the final decree be low. Removal Cases, 100 U. S. 475; Railroad Co. v. Koontz, 104 id.16. (2) When a term, at which a cause as a cause can be first tried, has passed by all right of removal, under the act of March 3, 1875, is gone, and a to file pleadings being afterward granted, does not create a new right of removal. It is true that the creditors got leave to file pleadings within ninety days, and that their answers and cross-bills were in before that time expired. But this operated only as an amendment of the original pleadings, and created no new right of removal. As was said in Babbitt v. Clark, 103 U. S. 612, “the act of Congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues as finally made up by leave of court or otherwise, but at the first term at which the cause as a cause could be tried." Edrington v. Jefferson. Opinior. by Waite, C. J. [Decided May 5, 1884.]
UNITED STATES CIRCUIT AND DISTRICT
been before such conquest accustomed to do," and if 80, what would be the effect of such a grant? This does not depend on any legislation of Congress, or on the terms of the treaty, but on the effect of the conquest upon the powers of local government in the pueblo un. der the Mexican laws. That is a question of general public law, as to which the decisions of the State court are not reviewable here. This has been many times decided. Delmas v. Insurance Co., 14 Wall. 661; TarTerv. Keach, 15 id. 68; New York Life Ins. Co. v. Hendren, 92 U. S. 286; Dugger v. Bocock, 104 id. 596 ; Allen 7. MoVeigh, 107 id. 433. City of San Francisco v. Scott. Opinion by Waite, C. J. [Decided May 5, 1884.]
BANKRUPTCY-SALE FREE FROM INCUMBRANCESRIGHTS OF LIEN-HOLDERS-MERGER-QUESTION OF INTENTION.–Where a bankrupt sale of property is made free from all incumbrances, it does not bind the holder of a lien against the property whom the record fails to show was served with process, or otherwise notified of the proceedings. Ray v. Norseworthy, 23 Wall. 128. In equity, where an incumbrancer of property, by mortgage or otherwise, becomes the owner of the legal title or of the equity of redemption, merger will not be beld to take place, if it is apparent that it is not the intention of the owner, or if it is against his manifest interest. Where the mortgage of property secures notes held by different parties, a bankrupt sale, by order of court, will not merge part of the mortgage and keep a part alive, the legal and equitable title being united, although one of the holders had notice of the sale and the other bad not. And the party who had notice, the mortgage being kept alive, is entitled to a sbare in the proceeds of a new sale, and to be recompersed out of the proceeds for taxes and improvements, although he must account for rents and profits. The rule on this subject is thus stated by Jones Mort., $ 848: “It is a general rule that when the legal title becomes united with the equitable, so that the owner has the whole title, the mortgage is merged by the unity of possession. But if the owner has an interest in keeping these titles distinct, or if there be an intervening right between the mortgage and the equity, there is no merger.” And in the case of Forbes v. Moffatt, 18 Ves 384, Sir William Grant says: “The question is always upon the intentions, actual or presumed, of the person in whom the interests are united.' Other authorities cited by Mr. Jones sus tain the principle. Clark v. Clark, 56 N. H. 105, is directly in point. Loud v. Lane, 8 Met. 517; Titsworth v. Stout, 49 Ill. 78; Armstrong v. McAlpin, 18 Ohio St. 184. It is to be observed in the present case that as the mortgage, which secured the two notes owned by the insurance company, was the same which secured Mrs. Murphy's notes, as between which there was no priority, it would hardly be held, on the order of the court to sell the property free from all incumbrances, that the purchase by the insurance company merged part of the mortgage, while part was kept alive. This is expressly decided in Barker v. Flood, 103 Mass. 474. Factors and Traders’ Ins. Co. v. Murphy. Opinion by Miller, J. (Decided May 5, 1884.]
VENDOR AND VENDEE-LIEN OF VENDOR-DEUREEINTEREST, HOW COMPUTED.-(1) Where it is evident from the report of the master in chancery, in an action to enforce a vendor's lien, based on a contract for the sale and purchase of land, that the amount of the lien, as fixed by the decree, was found by estimating the quantity of land, and not by actual survey, the survey having afterward been made, and the true quantity of land ascertained, the decree will be made to conform to it. (2) A deoreo will not be disturbed on
SHIP AND SHIPPING-COLLISION PRESUMPTION OF FAULT-PREPONDERANCE OF EVIDENCE.-Where a col. lision happens between two sailing vessels, the one sailing close-hauled, the other with the wind free, the night being clear and the lights of both vessels seen, the legal presumption is prima facie that the fault was in the vessel sailing free. This presumption is increased by proof of the absence in the latter of any lookout other than the captain standing near the wheel. The evidence of neither of the persons on deck of the latter being obtained, the captain having been knocked overboard and drowned at the time of the collision, and the wheelsman having died before the trial, and the only evidence in her behalf being that of the captain of another schooner about half a mile ahead, sailing in the same direction, who testified that the schooner, sailing close-hauled, just before she was reached luffed up into the wind so that her sails shook, and then paying off ran down on the other schooner, and several witnesses from the schoo. ner close-hauled contradicting the alleged luff, and giving a consistent and probable narrative involving no fault on their part, held, that the luff alleged was improbable under the circumstances, and not sustained by the weight of proof; that the libellants had not overcome the presumption against them by any preponderance of proof; and that the libel must be dismissed. The E. H. Webster, 18 Fed. Rep. 724; The City of Chester, id. 603: The Albert Mason, 8 id. 768; S. C., 2 id. 821. Dist. Ct., S. D. New York, April 28, 1884. Carll v. The Erastus Wiman. Opinion by Brown, J.
SHIP AND SHIPPING COLLISION-DUTY OF VESSELS-BOTH IN FAULT.-(11 A steamer in the East river, having upon her own starboard hand another
*Appearing in 20 Federal Reporter.
NEBRASKA SUPREME COURT ABSTRACT.
large steamer, evidently engaged in turuing around in a way that must cross the course of the former, is bound to keep out of her way, and give room for her necessary path in turning. When that duty has attached, she cannot relieve herself of it by getting across the bows of the latter and claiming that the latter is then in the position of a following or overtaking vessel. The Frauconia, 2 Prob. Div. 8; The Cayuga, 14 Wall. 270. There was danger of collision from the very act of sheering to the westward, and the Unit was therefore bound to refrain from such a change. The Nichols, 7 Wall. 656; The Free State, 91 U. S. 200. (2) A large steamer, engaged in making a turu in the East river, is bound to special watchfulness and care to avoid contact with other vessels. The lookout hav. ing failed to continue his attention to a tug and tow on the opposite side of the river, and a collision having happened, which by such attention would have been avoided by the steamer's timely backing, held, that both were in fault, the steamer for inattention, aud the tug for steering across the steamer's path, instead of stopping, as he might have done. The previous fault of the tug did not relieve the steamer of her duty to keep constant watch for the purpose of avoiding injury. The Maria Martin, 12 Wall. 31; The Vim, 12 Fed. Rep. 906; The Pegasus, 19 id. 46. Dist. Ct., S. D. New York, April 29, 1881. The State of Texas. Opiniou by Brown, J.
REMOVAL OF CAUSE-AMOUNT IN DISPUTE-ACT OF 1875-CITIZENSHIP.-(1) In order that a cause may be removed from the State courts to the United State courts, under $ 639, Rev. Stat., the sum in dispute, exclusive of costs, must exceed $500 at the time of the commencement of the action in the State courts. In Spear on the Law of the Fed. Judic., at p. 462, speaking of the amount in dispute, the author says: * The absence of this condition is fatal to the right of removal as given by the statute. The right depends upou a statute, and the facts as they existed when the suit was commenced in the State court in respect to the sum or value in dispute must determine whether this particular condition of the statute is present," citing Roberts v. Nelson, 8 Blatchf. 74, 77. This author adds: “These general provisions of the statute apply to all the cases enumerated therein, and constitute a part of the legal requirements in the removal of these cases from the State courts to the Circuit Courts of the United States." (2) A suit cannot be removed from a State court to the United States courts under the act of 1875, unless the requisite citizenship of the parties existed both when the action was begun aud, the petition for removal filed. That proposition is maintained by a line of authorities cited in Spear Fed. Jud. 501, 502, among which Jackson v. Ins. Co., 3 Woods, 413, opinion by Judge Woods. There is however a line of authorities to the proposition that the cause cannot be removed unless the required citizenship existed, not only when the petition for removal is filed, but also at the time the action is begun in the State court. The case of Houser v. Clayton, 3 Woods, 273, opinion by Justice Bradley, and the case of Kaeiser v. Illinois Cent. R., 6 Fed. Rep. 1, opinion by Judge McCrary, of the Eighth Circuit, are cited, and other authorities to the same proposition; Spear Fed. Jud. 502, 503. The Supreme Court of the United States, in the case of Gibson v. Bruce, % Sup. Ct. 873, hold that a suit cannot be removed from a State court, uuder the act of 1875, unless the requisite citi. zenship of the parties exists both when the suit was begun and when the petition for removal is filed. Cir. Ct., N. D. Ala., April, 1884. Carrick v. Landman. Opinion by Bruce, J.
LIMITATION - ACKNOWLEDGMENT OPENING CLOSING.-(1) A writing signed by the party as follows: “I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to be able to pay you soon, but will let you know in a few days what I can do;" held, to take the debt out of the statute of limitations. (2) A partial payment, acknowledgment of the debt, or promise to pay, made after the debt is barred, will revive it. (3) A defendant is not entitled to the opening and closing on a trial, unless he by his answer admits the allegations of the plaintiff's petition, and relies entirely upon an affirmative defense. Rolf v. Pillond. Opinion by Reese, J. [Decided May 28, 1884.]
CONTRACT-ILLEGAL-PUBLIC POLICY.-No court of law or equity will iend its assistance in any way toward carrying out an illegal contract, therefore such a contract cannot be enforced by any one party against the other, either directly, by askiug the court to carry it into effect, or indirectly, by claiming damages or compensation for a breach of it. Sykes v. Beadon, 11 Ch. Div. 170; 27 Eng. R. 435, note. A contract by which G. & K., who were the holders of a license to trade with the Fort Peck Indian agency, agreed to pay to K. & S. the one-half of the net profits of such trade for the consideration of the said K. & S. purchasing all goods and supplies necessary and proper for said trade at their own account and credit, and immediately resell and invoice such goods to said G. & K. at said agency at cost price, cost of trausportatiou and insurauce added, and one of the said K. & S. take entire charge, management and control of said busiuess, devoting his entire time and attention thereto, and residing at Fort Peck, is illegal, for the reason that it contemplates the violation of the statute as well as the public policy of the government of the United States. Chief Justice Marshall, in the case of Armstrong v. Toler, 11 Wheat. 268, stated the law with great clear. ness and perspicuity iu the following language: "Questions upon illegal contracts have arisen very often, both in England and in this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either wicked in itself or probibited by law." We have seen above, to my own satisfaction at least, that the plaintiffs and defendants in the case at bar cannot be consid. ered as partuers, for the want of an intention on their part to establish that relationship, as expressed by the language of the contract, as well as the lack of mutuality of its terms. It cannot be claimed that the plaintiffs are entitled to this remedy for the purpose of fol. lowing their money or property in the hands of the defendants, and claiming a share of its product or earnings, for they have placed neither money, property uor services there. They have given to the defendants, so far as they could, the ægis of their license, for which the defendants promised them a certain share of the vet profits of their business; but as we have seen, the consideration being illegal, that promise caunot be enforced. It may be claimed that the defend. ants, baving done business in the name of the plaintiffs, are estopped to deny the interest of the plaintiffs in that business. That would probably be so, could the plaintiffs' case ever reach the point at which the defendants are required to develop their defense: but the difficulty is in the inherent weakness of the plaintiffs' case. They cannot reach the enemies' works except through the contract, which, by reasou of its illo.
The prisoner in the dock would not under ordinary
gality, is "no thoroughfare" for them. Gould y. K’en | founded, but ir iudictment professes dall. Opinion by Cobb, C. J.
material variance will fatal; or [Decided May 28, 1884.]
if the statute does not support the verdict, it must
fail. If there had been wo allegations in the iudict. NEGLIGENCE-DEFENDANT'S QUESTION FOR JURY
ment as to the law, the indictment might have been OF PARENT XOT IMPUTED TO CHILD.-(1) The plaintiffs in error employed the defendant in error to labor for sustained; but as these allegations make it quite evi,
dent that the finding of the grand jury was upon a law them in and about a cane-mill while engaged in crush
which had been repealed I think that judgment must be ing sugar cane. The defendant in error was a boy of the age of eleven years, and while feeding the mill his
arrested. Cir. Ct., Dist. N. H., May 13, 1884. United hand was caught between the rollers aud so severely
States v. Goodwin. Opinion by Clark, J. (20 Fed.
Rep. 237.) injured as to require the amputation of two of his fingers. This action was instituted by him, through his next friend, for damages resulting from the alleged SENTENCED TO DEATH-A SCENE IN AN ENGcarelessuess of the plaintiffs in error, in requiring him
LISH COURT. at his age to feed the cane-mill, that being a dangerous employment. Upon the trial the plaintiffs in error requested the court to give a number of instructions, a
Shambling, part of which the court refused to give, to which refusal the plaintiffs in error excepted. The jury having hanging around the pit bauks any Saturday afternoon,
undersized and listless, one may see dozens of his type returned a verdict in favor of the defendant in error,
hungry, lazy loafers whose sole object is to drag and motion for a new trial having been overruled, the
through an animal existence with as little work as plaintiffs in error bring the case into this court for re
possible. Whether the repeated sight of the weekly view. In an action for damages caused by a personal | arrival of the pay clerk with his bags of yellow sovinjury resulting from the alleged negligence of the de- ereigns acted as a cumulative temptatiou to this man's fendant, held, that the question as to whether the de- vaguely brooding mind, or whether impelled by some fendant was or was not guilty of negligence must be
sudden onslaught of the devil, we cannot tell, but one decided by the jury. Held, also, that the vegligence Saturday moruing he was noticed lounging near the of a parent or guardian cannot be imputed to an in
bank of the neighboring towi), and when poor Merefant who is injured through the carelessuess of another dith, little suspecting how short a span of life remained party. Daley v. Norwich & W. R. Co., 26 Com. 591 ;
for him emerged therefrom, laden as usual with the Bellefontaine, etc., R. Co. v. Snyder, 18 Obio St. 399; colliery wages, the prisoner quietly followed and in Cleveland, etc., R. Co. v. Manson, 30 id. 451; North
broad day light, on a well frequented bighway, almost Pa. R. Co. v. Mahoney, 57 Penn. St. 187; Whirley v.
in sight of the passers-by, shot him and decamped Whiteman, 1 Head, 620; Government Street R. Co. v.
with the coveted bags. Hanlon, 53 Ala. 70; Norfolk, etc., R. Co. v. Ormsby,
So buygling was the execution of the crime that de27 Gratt. 455. But where the parent sues for loss of
tection and arrest were quick and easy, and now some services sustained by an injury to the child then the
two months after that fatal morning this commoncontributory negligence of the parent may be a bar.
place criminal stands here to receive his wage and Glassey v. Hestonville, etc., R. Co., 57 Penn. St. 172;
have his own span of days exactly meted out. The Louisville, etc., Canal Co. v. Murphy, 9 Bush, 5:22.
promising junior, assigned by the formal humanity of Huff v. Ames. Opinion by Reese, J.
our law for his defense, has made the most of a hope[Decided May 29, 1884.]
less case, resting principally upon a possible insanity of which there has been some faint evidence given, but
the judge has covertly destroyed his slender plea, telling CRIMINAL LAW.
the jury that if such excuses are to be taken, our pris.
ous may at once be turned into lunatic asylums. Mere MAXSLAUGHTER-FIGHT IN STREET.-Where F., a empty clap trap this, but when delivered from judicsaloon keeper, and the defendant attempted to eject ial lips by that incarnation of wisdom to rustic jurors, M. and others from a saloon because of their noise and
a judge on Circuit, it is abundantly sufficient to seal disturbance, and after something of an altercation M. the prisoner's fate, and so after a quarter of an hour's departed, with F. in pursuit, and immediately after- retirement, for decency's sake, the twelve have deward they engaged in a struggle in the open street and livered their verdict. in the presence of many people, aud F., when in dan- Is there no one here, beside ourselves, who feels a ger of receiving personal chastisement, but uot in such sickening doubt of the justice of the dreadful sentence imminent peril as to justify the use of a deadly | just impending? Look at that wretched specimen of weapon, shot and killed M., heli, that a punishment humanity, not a muscle of whose face or hands befor manslaughter is not excessive, and that the verdict trays what is passing in his dim brain. To the damning is sustained by the evidence. Sup. Ct. Iowa, June 6, evidence, to his counsel's appeal, to the judge's sum1884. State v. Fitzsimmons. Opinion by Reed, J. (19 ming up, to the verdict itself he has listened discouN. W. Rep. 8.21.)
nectedly with that indolent lack of interest characterINDICTMENT-PLEADING
LAW--SUR istic of his stupid class, himself the least concerned PLUSAGE.--It is never necessary to set forth matters spectator in the densely crowded court, and now as of law in a criminal proceeding. U. 8. v. Rhodes, 1 the low tones of the judge pronouncing sentence strike Abb. (U. S.) 28. But if the indictment set out the of. on his ear, he looks up at him with a slight vague specufeuse with greater particularity than is required the lation in his eyes, evidently noting with dull surprise, proof must correspond with the averment; notbing the black cap which has suddenly appeared on the connected with the offense is regarded as surplusage. | judicial wig. It is clear the judge is far too case-barU. S. v. Brown, 3 McLean, 233. And it must be that dened to feel any qualms such as are troubling our if the law supposed to govern the offense be set out in less ancient conscience. Behind the expression of the indictment, and the grand jury present it to the decorous pity on his face lurks an irrepressible self court as their finding, it cannot be rejected, if errone- complacency which receives from the tremendous ous, because it was the ground of their action. In power he is now exercising, a gratification unowned, Butler v. State, 3 McCord, 383, it was held that an in- , but real and deep. His well-modulated voice, bated dictment need not recite the statute on which it is to a theatric whisper, is uuder excellent control, and