Gambar halaman

adjoining ground. This rule however is not artificial, that permitting dry grass and stubble to accumulate and of positive institution, but is founded on the pre- on its right of way is not negligence per se. (Railroad sumption, in absence of proof, that the highway Co. v. Butts, 7 Kans. 314), yet the accumulation may was originally granted by the adjoining proprietors be to such an extent, at such a season of the year, and over their land in equal proportion. This is not a pre- in such proximity to the track, that a jury would be sumptio juris et de jure, but a reasonable presumption, justified in holding the company guilty of negligence. based on probability. Where it appears however that In the case of Kesee v. Railroad Co., 30 Iowa, 78, the the highway was laid wholly over the land of one per- court laid down this rule: “ To allow the dry grass, son the presumption is annulled, and to hold by infer- weeds, and other combustible matter, the natural aoence against fact that the fee of one person should be cumulations of the soil, to remain on the right of way, extended beyond his laud, and of the other re- is not negligence per se; but there may be such pecustrained to narrower limits, because he had been paid | liar or unusual circumstances in a given case as to for a right of passage over a part of his soil, would be a amount to negligence in fact; and when such circum. most inequitable fiction, in opposition to the established stances exist, they are proper to be submitted to a maxim that in fictione juris semper existit æquitas." jury for the purpose of establishing the fact of negliSo in Dunham v. Williams, 37 N. Y. 251, 252, it was gence." We think it is generally true that when the stated that a deed bounded on a highway prima facie evidence sbows an accumulation of dry grass and stubcarries the title of the grantee to the center of the road ble, it is a question of fact for the jury whether the ac. on the assumption that the grantor owns it; but where cumulation is such and under such circumstances as to it appears that it was in fact owned by anotber, the inpute negligence. Here by the statement, not only terms of the deed are satisfied by a title extending was the natural growth of grass on the right of way to the roadside. And it was accordingly held that standing in places in rank stools, but further, in a dry where land covered by the road bed belonged to the ditch was an accumulation of tumble-weeds and other government, and not to the adjacent owners, as in the like matter. This was in the fall of the year, at a case of the ancient road from Flatbush to Brooklyn, a very dry time; and whether the accumulation at such deed bounding land upon such a highway carried title time and under such circumstances was sufficient to only to the roadside. In Taylor v. Armstrong, 24 Ark. charge negligence upon the company is a question 102, 107, the converse of the proposition held in Dun- which the jury should have been permitted to pass bam v. Williams was maintained, viz: that if a highway upon. Kellogg v. Railroad Co., 26 Wis. 235; Flyon v. be laid out wholly upon a person's land, running along Railroad Co., 40 Cal. 14; Railroad Co. v. Shanefelt, 47 the margin of the track, and he afterward conveys the Ill. 497 ; Railroad Co. v. Nunn, 51 id. 78; Barron v. land, his grantee takes the fee in the whole of the soil Eldridge, 100 Mass. 455; Webb v. Railroad Co., 49 N. of the highway. Healey V. Babbitt. July 5, 1884. Y. 420; Snyder v. Railroad Co., 11 W. Va. 14; 38 Am. Opinion by Malleson, J.

Deo. 6, and cases cited. White v. Missouri Pac. R. CONVERSION-EVIDENCE-RECEIVING IN GOOD FAITH

Co. Opinion by Brewer, J. -WHEN AGENT LIABLE.-Ordinarily, when one person LIMITATION-NOTE SCHEDULED IN ASSIGNMENThas the chattel of another it is his duty to deliver it PARTIAL PAYMENT.–Where the maker of a note thereto the owner or his agent on demand, and if he refuses after made an assignment for the benefit of creditors, to do so his refusal is evideuce of a conversion. It is and in such assignment scheduled this note and dihowerer only prima facie evidence, and may be ex- rected his assiguee to convert the assigned property plained. Magee v. Scott, 9 Cush. 148; Robinson v. into money and pay his debts, and in pursuance Burleigh, 5 N. H. 225; Dietus v. Fuss, 8 Md. 148; thereof the assignee took possession and converted Green v. Dunn, 3 Camp. 215; Solomons v. Dawes, said property into money, and applied the same in 1 Esp. 83. Thus it is no conversion for the bailee of a part payment of the assignor's debts, this note among chattel, who has received it in good faith from some the number, held, that the paymeut, being one made person other than the owner, to refuse to deliver it to in pursuance of express directions from the assignor the owner making demand for it, uutil he has had for his benefit and out of the proceeds of his property, time to satisfy himself in regard to the ownership. is such a payment as under section 24 of the Code Carroll v. Mix, 51 Barb. (S. C.) 212; Lee v. Bayes, 18 C. avoids the bar of the statute of limitations; and this B. 599, 607; Sheridan v. New Quay Co., 4 C. B. (N. S.) notwithstanding the proceedings under the assign618; Coles v. Wright, 4 Taunt. 198. In the case of a ment are controlled by the provisions of a general stat. servant who has received the chattel from his master, ute concerning assignments for the benefit of crediit has been held that he ought not to give it up with- tors. Here, statutes of limitation are held to be statout first consulting his master in regard to it. Mires utes of repose. Taylor v. Miles, 5 Kans. 499; Elder v. 5. Solebay, 2 Mod. 242, 245; Alexander v. Southey, 5 Dyer, 26 id. 604. Partial payments made by one debtor B. & A. 247 ; Berry v. Vantries, 12 Serg. & R. 89. But will not suspend the running of the statute in favor of if after having had an opportunity to coufer with his other debtors on the same obligation. Steel v. Soumaster, he relies ou his master's title, and absolutely der, 20 Kans. 39. But here the party sought to be refuses to comply with the demand, he will be liable charged is the one for whom and out of whose propfor a conversion. Lee v. Robinson, 25 L. J. (C. P.) 249; erty the payment was made. It was made in pursu18 C. B. 599; 1 Ad. on Torts, 475; Greenway v. Fisher, ance of an express direction. So upon the maxim qui 1 Car. & P. 190; Stepheus v. Elwall, 4 M. & S. 259; facit per alium, facit per se, it would seem that this Perkins v. Smith, 1 Wils. 328; Gage v. Whittier, 17 N. payment was within the very letter of said section 24. H. 312. The mere fact that he refuses for the benefit Letson v. Kenyon. Opinion by Brewer, J. of bis principal will not protect him. Kimball v. Billings, 55 Me. 147. Singer Manuf. Co. v. King. June 2,


BOUND BY.-Neither the president nor cashier of a bank organized under the laws of the State has the

power, virtute officii, to sell the safe of the bank for a KANSAS SUPREME COURT ABSTRACT.* debt of the bank. This court in the case of National JANUARY TERM, 1884.

Bank v. Drake, 29 Kans. 325, said: “The directors NEGLIGENCE-PERMITTING DRY GRASS TO ACCUMU

constitute the governing body of the bank, the bank

itself being an incorporeal entity, without power to LATE-QUESTION FOR JURY.- While it may be conceded

see or know. The directory constitutes the visible *Appearing in 31 Kansas Reports.

representative, the thinking, knowing head of the

vers, J.

bauk.” Morse on Banks and Banking, 107, thus states See also 1 Dill. Mun. Corp. (3d ed.), $$ 480, 481, 482, and the rule. “The general control and government of

authorities cited in notes. There is a class of cases all the affairs and transactions of the bank rest with which hold in substance that when the powers of a the board of directors. For such purposes the board municipal corporation are defined in the charter or a constitutes the corporation, and uniform usage im- statute, persons contracting with the corporation are poses upon them the general superiutendence and ac- bound to know the extent and character of sucb pow. tive management of the corporate concerns.” The ers, and therefore deal with the corporate authorities cashier is the executive of the financial department of at their peril. Craycraft v. Selvage, 10 Bush (Ky.), the bank, and whatever is to be done, either to re- 696; Zottman v. San Francisco, 20 Cal. 96; Swift . ceive or pass away the funds of the bank for banking Williamsburg, 24 Barb. 427. Conceding the correctpurposes, is done by him or under his direction; he ness of these cases, we do not think they have any therefore directs and represents the bank in the re- application to the case at bar; for if the plaintiff had ception and emission of money for banking objects. looked at the statute he would have ascertained that United States v. Bank, A1 How. 356; Merchants' the city had the power to grade its streets and pay Bank v. State Bank, 10 Wall. 604; Com. Bank v. Nor- therefor out of the general fund, and that it did not ton, 1 Hill, 501. But neither the president nor the have the power to make an assessment on theabutting cashier can impose by his own action, on the bank, owner, and we think he had the right to conclude that any liability not already imposed by law or usage; nor the city would and was bound, as no assessment could can they bind the bank, iu the absence of authority be lawfully made to pay him out of the general fund. from the directors, by any agreements or contracts Becroft v. City of Council Bluff8. Opinion by Seeoutside of the range of their duties. Bank v. Dunn, 6 Pet. 51. The mere fact that they had conducted the [Deoided June 6, 1884.) business of the bank gave them no authority to make the sale. As these officers had no power to execute

NEGLIGENCE-RAILROAD-TRAVELLING ON ANOTHthe bill of sale, and as it is not claimed that the direct

ER'S PASS-FRAUD-COMPANY NOT LIABLE.-A person ors ever ratified their act, the plaintiff below was not

who travels on a railroad train on the ticket of another the owner of the safe at the commencement of her ac

contrary to the rule of the company printed on the tick. tion. Bank v. Dunn, 6 Pet., supra; Bank of Metropo

et, and without the cousent of the company's agents, lis v. Jones, 8 Pet. 16, 17; Adriance v. Roome, 52 Barb.

perpetrates a fraud, and in case of his receiving injuries 399; Walworth County Bank v. Farmers' Loan & Trust

during the trip the law of common carriers cannot be Co., 14 Wis. 325; Chicago & N. W. Railroad v. James,

invoked to make the company respovsible. The doc22 id. 194; Blood v. Marcuse, 38 Cal. 590; Angell & Ames

trine was very clearly expressed in T., W. & W. R. Co. on Corp., $ 298, pp. 322, 323. Asher v. Sutton. Opin

v. Beggs, 85 III. 80. In that case the court said: “Was ion by Horton, C. J.

defendant a passenger on that train in the true sense of that term! He was travelling on a free pass issued

to one James Short, and not transferable, and passed IOWA SUPREME COURT ABSTRACT.

himself as the person named in the pass. By his fraud

he was riding on the car. Under such circumstances STATUTE OF LIMITATIONS-ABSENCE FROM STATE

the company could only be held liable for gross negliNON-RESIDENT.- Where a person leaves a State in

gence which would amount to willful injury." In which he resides, under the employment of the gene

Thomp. Carr. Pass., p. 43, $ 3, the author goes even fur.

ther. After stating the rule that the relation of carral government, with the intentiou of returning as soon as his employment terminates, but retains no

rier and passenger does not exist where one fraudu

lently obtains a free ride, it says: “This doctrine exproperty or business interests in the State, he is a nouresident within the meaning of the statute, although

tends further, and includes the case of one who know.

ingly induces the conductor of a train to violate the his wife remains in the State for a portion of the time; and the statute of limitations will not run in his favor

regulations of the company, and disregard his obligaagainst an action on a promissory note during his ab

tions of fidelity to his employer.” In U. P. Ry, Co. v.

Nichols, 8 Kans. 505, the defendant in error imposed sence. This view is sustained by the previous hold

himself upon the company as an express messenger, ings of this court. Penley v. Waterhouse, 1 Iowa, 498;

and obtained the consent of the conductor to carry Savage v. Scott, 45 id. 133. And to the same effect is

him without fare. It was held that he did not become Hackett v. Kendall, 23 Vt. 275. And in Sleeper v. Paige, 15 Gray, 349, and Ware v. Gowen, 111 Mass. 526,

entitled to the rights of a passenger. The court, after it is beld by the Supreme Court of Massachusetts, in

quoting Shearman & Redfield's definition of a passen. facts similar to those in the present case, that the par

ger, which is in these words: “A passenger is one who

undertakes, with the consent of the carrier, to travel ties were non-residents of the State within the meaning of the statute of limitations of that State, which

in the conveyance provided by the latter, other than is identical in its provisions with our statute. Hedges

in the service of the carrier as such," – proceeds to v. Jones. Opinion by Reed, J.

“ The consent obtained from the conductor was say:

the consent that an express messenger might ride [Decided June 4, 1884.]

without paying his fare. Such consent did not apply MUNICIPAL CORPORATION-ADMITTING DEBT, LIA- to the plaintiff” (the defendant in error). See also the BLE UNDER CONTRACT.-When a city admits the exist. following cases: T.,W.& W.R. Co.v.Brooks, 81 III. 292; ence of a debt, and issues certificates of assessment to M. & C. R. Co. v. Chastive, 54 Miss. 503; Creed v. Pa. the end tbat the plaintiff could be paid out of a par- R. Co., 86 Penn. St. 139; Relf v. Rapp, 3 Watts & S. ticular fund created by the city, it must be assumed it 21; Hayes v. Wells, Fargo & Co., 23 Cal. 185. The guarantees, or by implication contracts, that such fund plaintiff cites and relies upon Bissell v. Railroad Cos., exists, or that it has taken and has the power to take 22 N. Y. 308; Washburn v. Nashville, etc., R. Co., 3 the steps necessary to create such fund. Now wher Head, 638; Jacobus v. St. Paul, etc., R. Co., 20 Minn. it turns out that there was no such fund, and that the 125 (Gil. 110); Pa. R. Co. v. Books, 57 Penn. St. 346; power to create it did not exist, it seems to us that the Wilton v. Middlesex R. Co., 107 Mass. 108; Flint, etc., city should not, and cannot, escape all liability under R. Co. v. Weir, 37 Mich. 111; Dunn v. Grand Trunk the contract, and it has been so held. Kearney v. Ry. Co., 58 Me. 192; Edgerton v. N. Y., eto., R. Co., City of Covington, 1 Metc. (Ky.) 339; Sleeper v. Bul- 39 N. Y. 227; Gregory v. Burlington, etc., R. Co., 10 len, 6 Kans. 300; Maher v. City of Chicago, 38 Ill. 266. Neb. 250; S. C., 4 N. W. Rep. 1025; Great Northern R.


Co. v. Harrison, 10 Exch. 376. But none of these cases other officers, whose duty it is to approve of these bold that the extraordinary care described in the in- bonds, are held to a great extent to responsibility in struction given is due to a person'not a passenger, and taking proper security in this class of cases by a just none of them hold that the relation of passenger can publio opinion, from which they cannot be permitted be insisted upon where the company shows affirma- to shield themselves iu the course pursued by this retivelp as a defense that the company's consent was ob- spondent. The real purpose of the statute is that pertained by fraud. May v. Chicago, R. I. & Pac. R. Co. fectly safe bonds shall be taken for the protection of Opinion by Adams, J.

all parties, and this purpose must not be defeated by (Decided June 7, 1884.]

proceedings of the sort complained of in this case. We are all of the opinion that the action taken by the

treasurer in this case can find no support in law or MICHIGAN SUPREME COURT ABSTRACT. right, and should not be sustained. If authority were

needed upon the construction of the statute as we have AGENCY

POWERS — CONVERSION - FIX- given it, it will be found in Ferry v. Williams, 41 N. J. TURES. – The general agent and and manager of a min- Law, 332; 19 Am. Law Reg. (N. S.) 154, wbich we fully ing company is presumably empowered to sell its per- approve. The request of the petitioner was a reasonsonal property. The sale ou execution of personal able one, and it was the duty of the officer to comply property belonging to a third person amounts to a with it when made. The writ of mandamus must be conversion, whether the officer making sale removes it granted as prayed, with costs against the respondent. or not. Ordinary movable office furniture and ordi- Brown v. Washtenaw County Treasurer. Opinion by nary vehicles are not fixtures, and the question Sherwood, J. whether personal property in use about a mine can be [Decided June 11, 1884.) so regarded, is a question of the intent with which it

NEGLIGENCE-MUST BE PROVED- INFERRED FROM was attached to the freehold, Personal property that

CIRCUMSTANCES - SPARK-ARRESTER - CONTRIBUTORY can be removed from the land cannot be part of the

NEGLIGENCE.-The party counting upon negligence realty, when the owner does not also own the land.

must adduce affirmative proof of it. Lake Shore, etc., This was decided in Adams v. Lee, 31 Mich. 440; and

R.Co.v.Miller, 25 Mich. 274; Macomber v.Nichols, 34 id. Robertson v. Corsett, 39 id. 777. Scudder v. Anderson.

212; Grand Rapids, etc., R. Co. v. Judson, id. 507; Opinion by Campbell, J.

Browu v. Street R. Co., 49 id. 153. But negligence, like [Decided June 11, 1884.)

any other fact, may'be inferred from the circumstanMANDAMUS-COUNTY TREASURER- INSPECTION OF ces, and the case may be such, that though there be po LIQUOR BOND.—The papers presented in this case show positive proof that defendant bas been guilty of any a most extraordinary proceeding on the part of the neglect of duty, the inference of negligence would be county treasurer. A member of the board of review irresistible. Such a case is seen in Higgins v. Dewey, ol Ann Arbor, who had been for the two previous 107 Mass. 494, a case of fire set for the burning of brush years a supervisor in Washtenaw county, on applica

on agricultural lands. See also Kearney v. London, tion to that officer for permission to inspect a liquor etc., R. Co., L. R., 6 Q. B. 759; Field v. N. Y. Cent. R. bond, is denied the privilege on the ground that the Co., 32 N. Y. 339. Now what are the facts in this case ? treasurer regards it as unnecessary for the purpose

The defendants constructed, in connection with their stated by the petitioner. It is not pretended that such

mill, a burner, whereby they might be enabled to conpurpose is an unlawful one, or that the request was sume and get rid of the waste and refuse stuff of their not respectfully made. The county treasurer holds a business. The burner, as we understand it, was not a pnblic office, and the statute requires the liquor bonds necessity to their business, but it was constructed as a to be filed therein and to be kept by the treasurer. means of saving something in the cost of removing They thereby become public records, and as such may sawdust, slabs, eto. It was what may be described as be examined and copies taken thereof by any citizen. a tall and very large chimney, and the draught There are many and very good reasons why the citi- through it, when a fire was burning, was very strong zeus may and should have this right: (1) As a citizen and powerful. Only a very perfect spark-arrester to hold the board, whose duty it is to approve the could prevent a stream of large ciuders pouring out of bond, to public accountability for accepting insufficient

it when the draft was open.

The evidence was strong bouds; (2) to prosecute sureties criminally when they that fires were frequently started by cinders which have falsely sworn to responsibility;(3) to see if there came from it; that such an occurrence might reasonis sufficient security for any citizen, widow, child, or ably be looked for whenever a strong wind was blowparent who may have a right of action for violations ing. The sparks, so called, which ignited the plaintof the license law (which frequently occurs) against it's building, could not have been mere sparks. A the liquor-seller and his bureties, and to see that they spark could scarcely have retained sufficient vitality are not forged; (4) as assessor or other tax officer, who and substance, after being carried that distance, to may desire to compel parties who may have property,

communicate fire to a building. It was in proof that according to their oaths given on justification, to pay the spark-catcher was bent in at the top, as a consetheir share of the taxes; and for many other purposes quence of the heat; and though there was no direct which readily occur to any one who has given any at- evidence that any wires were broken, or the openings tention to the subject. It is no answer to say that the in it increased, the very manner in which the sparks time has gone by for performing the official act by the poured out of it, and started fires at a distance, would person desiring the information sought, or that the suggest, if it did not fully justify, an inference that purpose intended, in the judgment of the respondent, in some way it was defective, and such an inference is not a commendable or proper one, so long as it is not might have been fully warranted if the plaintiff bad criminal, when the inspection is desired. The law shown, as she offered to do, and as she should have does not vest in the treasurer any such discretionary

been permitted to do, that after a change was made in power to deprive the citizen of a substantial right the spark-catcher immediately following the fire, the given by the statute, one iu which he may have large dangerous emissions of sparks through it ceased pecuniary interests, and of which he may be deprived altogether. But the evidence the plaintiff gave was if the action of the treasurer in this case can be sug- precisely such as in Lehigh Valley R. Co. v. McKeen, tained, and the most beneficial object of the act under 90 Penu. St. 122, was held to require the court to subwhich the bond is given defeated. City boards and mit the case to the jury. But it is said on behalf of

the defendants that the plaintiff was guilty of contributory negligence, and for that reason, if for no other, the verdict should be permitted to stand. The contributory negligence suggested is that the plaintiff erected her buildings within a hundred yards or so of defendants' mill, after this dangerous burner had been put up, and did not cover them with metallic roofs. It is not suggested that the buildings were exceptionally combustible, or that the roofs were of different material to that made use of by the plaintiff's neighbors; but it is said, that in view of the danger to whicb she was exposed from the buruer, she should have incurred the extra expense of a metallic roof for protection, and was negligent in not doing so. This strikes us as a most extravrdinary proposition. The defendants, not because it is a necessity to their business, but as a means of saving expense in getting rid of the refuse, erect this dangerous burner, and having done so, it is argued that by this contrivance of money-saving to themselves they have imposed a burden upon all the property in the veighborhood, and subjected all lot-owners to the necessity of incurring extra expense in any future erections which they may make in the vicinity. To state the argument boldly, it seems to be that by erecting a neighborhood nuisance to save cost to themselves, the defendants have imposed upon everybody in the neighborhood an obligation of expense for protection against it, so that no oue can be permitted to complain of the nuisance who declines to incur this expeuse. We are aware of no priuciple of law which will justify this species of ecouomy at the expense of others. In Beauchamp v. Saginaw Mining Co., 50 Mich. 163, it was suggested that the defendant could uot afford to take certain precautions in the management of its business, which seemed necessary for the protection of the public; but the court was of opinion, that if the business at the particular place could not be profitably carried on, and the rights of third parties at the same time respected and protected, then it must either be carried on at a loss or abandoned. And this, we still think, is perfectly reasonable. Alpern v. Churchill. Opinion by Cooley, C. J. [Decided June 4, 1880.]

CHATTEL MORTGAGE-NOT GIVEN TO SECURE DEBTINVALID.-To constitute a valid chattel mortgage, il given to secure a debt, it must be one due from the mortgagor to the mortgagee; if a liability, it must be a liability incurred by the mortgagee for the mort. gagor; or any other agreement, it must be one between the parties to the mortgage; the oath must couform to the purpose of the mortgage, verifying the truth, validity, and justice of the debt; and the debt or obligation be specifically described and with substantial truth; thus the affidavit in the mortgage alleging that the debt secured was “due and owing," etc., was wholly false. But the plaintiff insisted that he had an equitable right to the property, claiming that prior to the execution of the mortgage he had agreed to loan the mortgagor $1,500, to be secured on the printing press in question; that at the time the mortgage was given he had advauced about $200, and that it was understood this was secured by the mortgage; that he, the plaintiff, entered into an arrangement with one T. to pay such portion of the $1,500, as he himself should be unable to furuish, and so the note aud mortgage were executed to T., and placed in the hands of a third party, to become the property of T. when the money was paid ; that T. never paid any thing; that the mortgagor fraudulently misrepresented the value of the press; that in a short time it was attached and sold by the defendant, an officer, on an execution in favor of an attaching creditor against the mortgagor: that the plaintiff never advauced any thing more on the note; that the holder of the note and mortgage, by direction of the mortgagor, delivered them up to the plaintiff, though there was no transfer made by T. Held, that the chattel mortgage was invalid, and that an action of trover would not lie. Tarbell V. Jones. Opinion by Veazey, J.

SURETY-CONTRIBUTION-STATUTE OF LIMITATIONS. -The plaintiff aud defeudant were co-sureties ou a promissory note. All the parties to the note, the payee, the principal, and sureties were residents of this State. After the statute of limitations became a bar here, the plaintiff voluntarily and without the knowledge of the defen but with frauduleut intent, went to New Hampshire, where there was no defense to the note, and there was sued by the payee. judgment rendered against him, and he was compelled to pay. Held in an action for contribution, that the payment was compulsory, and not voluntary, aud that the defendant was liable. The legal right of sureties as against each other is not governed by the lex loci contractus; ueither is there any implied obligation that they shall reside or remain in any particular locality. The right to contribution among co-sureties is not founded ou the contract of suretyship, but is based on an equity arising from the relation of the co-sureties. The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into, and upon which a cause of action accrues, when one has paid more than his proportion of the debt for which they were bound. Burge Sur 384; Theo. Pr. & 8. $ 158; Camp v. Bostwick, 20 Ohio St. 337 ; Peaslee v. Breed, 10 N. H. 489; Boardman v. Paige, 11 id. 431; Sibley v. McAllaster, 8 id. 389. Aldrich v. Aldrich. Opinion by Royce, C. J.

NEGLIGENCE-INJURY ON HIGHWAY – PROXIMATE CAUSE-KNOWLEDGE OF DANGER.-Knowledge of eristing danger is not per se negligence; but it is a fact to be weighed by the triers as bearing upon the question of negligence. Clarke v. Holmes, 7 H. & N. 937; Senior v. Ward, 1 E. & E. 385; Nave v. Flack, 90 Ind. 200; S. C., 46 Am. Rep. 205. Thus in an action to recover for injuries received on the highway, it appeared that from a certain point there were two highways of


QUO WARRANTO-DISCRETION OF COURT— SCHOOL COMMITTEE.—It is now settled law that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there be a substantial defect in the title by which the office or franchise is beld. State v. Fisher, 28 Vt. 714; State v. Smith, 48 id. 266; High Ex. Rem., SS 605, 628, and the cases there cited. Aud this on the ground that he was eligible to the office and competent; that he had hired teachers in good faith, and made provisiou for a school; that it was an annual office without emoluments; and that the best interests of the district required that he should be allowed to continue through his term. The grounds upon which courts have exercised discretion by denying the petition have been the same as those established by the evidence in this case. In the exercise of the dig. cretion reposed in the court, and independent of the question of the alleged defect in Mead's title, which is sharply controverted by the defendant, and by no means clearly established by tbe relator, we think every consideration demands a dismissal of the com. plaint. State v. Mead. Opinion by Veazey, J.

*To appear in 56 Vermont Reports.

about equal length leading to the place where the there is any thing else thau an absolute gift to the legaplaintiff wished to go; that one was very near the rail- tees in the first iustance, followed by a modification of road, and the other more remote; that the plaivtiff be- the mode of enjoyment. Under those circumstances ing acquainted with both roads, and knowing that he I am of opinion that the brothers and sisters take unwas liable to meet a train of cars about that time, der the gift in the will merely an estate for life. I do took the one nearest to the railroad, but he did not not intend to decide any thing as to the interests of know of its insufficiency; that his horse became fright- the children, as they are not before me. The case has ened at an approaching train, and that he was injured been argued on behalf of two members of the family, by reason of want of repair of the highway. Held, who at all events bad it as their interest that I should that the plaintiff had a right to presume that the high- give a contrary decision to the one I have given. All way was sufficient, and that his knowledge did not I decide is, that under the gift in the will the brothers reach the proximate cause of the injury, and so did and sisters take a life estate only. Ch. Div., April 3. not contribute to it. Templeton v. Montpelier. Opin- Matter of Houghton. Opinion by Pearson, J. (50 L. T. ion by Royce, C. J.

Rep. [N. 8.) 529.)


by her will directed her trustees to stand possessed of

1,5001. now invested in the Bombay, Baroda, aud CenPARTNERSHIP-JOINT LIABILITY-JUDGMENT-MER

tral India Railway Company, upon trust, in case her GER-PROOF AGAINST ESTATE OF ONE PARTNER.--The

brother, wbo had not been heard of for some years, firm of D. having been employed by the executors of

should present himself to the trustees withiu a period B. to sell certain crops, etc., paid over a part of the

of five years, to pay him the income during his life, proceeds, but were adjudicated bankrupt on the peti- and after the period of five years, or the death of her tiou of the executors of B. in 1880 upon a judgment brother, whichever event should first happen, the tesfor the balance. The executors of B. proved as credi

tatrix bequeathed 5001., “beiug part of the said Bomtors of the joint estate. Subsequently H. S. D., one of bay, etc., stock,” to the treasurer of the Asylum for the partners in the bankrupt firm, became entitled to

Destitute Sailors, in the neighborhood of the East Ina legacy and to other moneys, and the executors of B.

dia Docks. The testatrix was not possessed of any attempted to withdraw the proof against the joint es

Bombay, etc., stock, at the time of her death, and her

brother had never been heard of since the date of the tate and prove against the separate estate of H. S. D. The trustee rejected the proo

will. Held, that the legacy to the asylum was specific,

on the ground that the creditors were bound by their election, and his decis

and the gift failed. Ch. Div., March 27, 1884. McCleion was reversed by the County Court judge. On an

lan v. Clark. Opinion by Pearson, J. (50 L. T. Rep. appeal from his decision, held, that the ground upon

[N. S.) 616.) wbicb the trustee had rejected the proof was wrong, but that in order to entitle them to prove against the

FINANCIAL LAW. separate estate of H. 8. D., the respondents must prove that they had a separate cause of action against him. NEGOTIABLE INSTRUMENT—NOTE UNDER SEAL, NOT. Held, also, upon air argument that the separate cause -Au instrument in the form of a negotiable promisof action was merged in the joint judgment, that it sory note, but with the device “[Seal]” after and opwas uot so merged. Q. B. Div., March 31, 1884. Matter posite the signature of the maker, is, though there be of Davison. Opinion by Cave, J. (50 L. T. Rep. [N. po reference to a seal in the body of the instrument, a S.) 635.)

sealed instrument, and not a negotiable promissory WILL-CONSTRUCTION--GIFT OF RENTS--LIFE ESTATE.

note. Undoubtedly where there is a scroll or device -A testator bequeathed leaseholds to a trustee upon

upon an instrument there must be something upon the trust to give yearly equal portions of the rents to the instrumeut to show that the scroll or device was intwo brothers aud three sisters of the testator; that

tended for and used as a seal. The scroll or device was to say, each to receive one-fifth part of the net does not necessarily, as does a common-law seal, estabproceeds of rent, and he directed that on the decease lish its owu character. Such words in the testimonium of any or all of his brothers and sisters, “the same clause as “witness my hand and seal" or sealed should go to their children." Held, that the brothers

with my seal," would establish that the scroll and sisters of the testator took life interests only. In

or device

used & seal. No such refScawin v. Watson, 10 Beav. 200, affirmed by Lord Cot- erence in the body of the instrument was tenham, C., 9th of July, 1847, the last case referred to essary in the case of a common-law seal. 2 Coke, 5a; upon this subject, there were words of absolute gift of

3 Bao. Abr. 163. Nor is there any reason to require it the 1,0001. ; but the master of the rolls considered the in the case of the statutory substitute, if the instruwhole direction to amount to a gift of the 1,0001. for ment anywhere shows clearly that the device was the benefit of the daughter, to pay her the interest for used as and intended for a seal. It would be difficult to life, with remainder to her cbildren; and upon appeal conceive bow the party could express that the device I concurred iu this opinion, and affirmed his lord ship's was iutended for a seal more clearly than by the word order. I bave therefore to consider here whether" seal,” placed within and made a part of it. Sup. Ct. upou the construction of this will this was intended to Minn., May 31, 1884. Brown v. Jordhal. Opinion by be an absolute gift of one-fifth share in these houses to Gilfillan, C. J. (19 N. W. Rep.) each of the testator's brothers and sisters; or whether NEGOTIABLE INSTRUMENT-TITLE OF PURCHASER it is a gift over, in case they had children, then to AFTER MATURITY-SUBJECT TO EQUITIES.—The title of those children; or whether under the terms of this the owner of personal property or things movable canwill this is only a gift for life to each of the brothers not be divested except by his consent or by operation and sisters, with a gift over to the others of thein in of law. To this rule there are exceptions arising out case any of them had no children. I am of opinion that of the character of the property, among which are the latter is the right construction. I can see nothing bank notes, checks payable to bearer which pass by whatever here in the shape of an absolute gift of these delivery and circulated as money, and drafts, bills and two bouses. The houses are given, in the first in-negotiable promissory notes transferred before matustance, not to the legatees but to the executors, to rity. But if transferred after maturity for value and hold on the trusts following. I think there is nothing in due course of business, such drafts and promissory ou the face of this will authorizing me to say that notes in the hands of the holder are subject to the

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