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the vessel from liability for loss occasioned by "pirates, robbers, thieves, * ** or from any act, neglect or default of the master or mariners." The defendant's vessel was a general ship, and a common carrier. The clause of the bill of lading exempting her from liability for any "act, neglect or default of the master or mariners" is therefore invalid, and affords no defense if the loss was occasioned through their negligence. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; The Hadji, 16 Fed. Rep. 861; 18 id. 459. It is not necessart to consider the conflicting views as to the ship's liability under the exception of "thieves, robbers," etc., that the theft had been committed by one of her own employees (Spinetti v. Atlas Steamship Co., 80 N. Y. 71; Taylor v. Liverpool, etc., L. R., 9 Q. B. 546), nor what effect, in the consideration of that question, should be given to the principles laid down by the Supreme Court in Railroad Co. v. Lockwood; since J., who is satisfactorily shown to have committed the theft, was not at this time in the ship's employ, but had been previously discharged. The exception of loss by thieves or robbers is valid, unless it be shown that there was negligence on the part of the ship which contributed to the theft or facilitated it; and upon defendant's proving that the theft was committed by a person not belonging to the ship, the burden of proof is upon the libellants to show to the satisfaction of the court that the loss might have been avoided by the exercise of reasonable and proper care on the part of the ship, and that the theft would not have occurred if such care had been exercised. If the carelessness of the ship was such as to invite the theft, or to make it easy, or if the attempt would not have been successful except through the lack of such watchfulness and care as was reasonably incumbent upon those having charge of such treasure, then the loss must be held to be occasioned by the carrier's negligence and inattention to his duty, as well as through the direct acts of the thief. In Clark v. Barnwell, 12 How. 272, 281, the court say: "But if it can be shown that it (the loss) might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. It is competent for the libellants to show that the respondents might have prevented it (the loss) by proper skill and diligence in the discharge of their duties." In Transportation Co. v. Downer, 11 Wall. 129, 133, the court say: "If the danger might have been avoided by the exercise of proper care and skill on the part of the defendant, it is plain that the loss should be attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading." See also Six Hundred and Thirty Quarter Casks of Sherry Wine, 14 Blatchf. 517; Dedekam v. Vose, 3 id. 44; Richards v. Hansen, 1 Fed. Rep. 54, 63; The Invincible, 1 Low. 225; The Montana, 17 Fed. Rep. 377. The Saratoga. Dist. Ct., S. D. N. Y., June, 1884. Opinion by Brown, J.
CORPORATION-NOTICE TO STOCKHOLDERS; NOT TO CORPORATION.-A corporation can have no agents until it is brought into existence, and after that it acts and becomes obligated only through the instrumentality of its authorized representatives. Stockholders cannot bind it except by their action at corporate meetings, and it is undoubted law that notice to individual stockholders is not notice to the corporation, and their knowledge of facts is not notice of them to the corporation. In re Carews, Act. 31 Beav. 39; Union Canal Co. v. Loyd, 4 Watts & S. 393; Fairfield Turnpike Co. v. Thorp, 13 Conn. 182; The Admiral, 8 Law Rep. (N. S.) Mass. 91. Instances may occur where associates combine together to create a
paper corporation, as a form or shield to cover a partnership or joint venture, and where the stockholders are partners in intention. The liberal facilities offered by the statutes of many of our States for organizing such corporations are undoubtedly often utilized by those whose only object is to escape liability as partners by calling themselves stockholders or directors. Where such a concern is formed, a court of equity might treat the associates as partners in fact, disregard the fiction of a corporate relation between them, and subject the title of the property transferred to it by the promoters to any equities which might have existed as against them. The general rule which charges a principal with the knowledge of his agent is founded on the presumption. that the agent will communicate what it is his principal's interest to know and the agent's duty to impart. In the language of Mr. Justice Bradley, the rule "is based on the principle of law that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of the negotiation, and the presumption that he will perform that duty." The Distilled Spirits, 11 Wall. 367. The rule has no application when an agent divests himself of his fiduciary character and becomes a contracting party with his principal, because there is no reason to presume that he will impart information which it is for his interest to suppress. "When a man is about to commit a fraud it is to be presumed that he will not disclose that circumstance to his colleagues." Kennedy v. Green, 3 Mylne & K. 699. Accordingly it has been repeatedly adjudged that a corporation will not be charged by the knowledge of a director in a transaction in which the director is acting for himself, because he represents his own interests, and not those of the corporation. Com. Bank v. Cunningham, 24 Pick. 270, 276; Housatonic & Lee Banks v. Martin, 1 Metc. 308; Winchester v. Balt. & S. R. Co., 4 Md. 239; Seneca Co. Bank v. Neass, 5 Denio, 337; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; Terrell v. Branch Bank of Mobile, 12 Ala. (N. S.) 502. Cir. Ct., N. D. New York. Davis Imp. Wrought Iron W. W. Co. v. Davis Wrought Iron W. Co. Opinion by Wallace, J.
JURISDICTION-U. S. COURTS - ESTOPPEL DENY AFTER REMOVAL.- All the circumstances necessary to confer jurisdiction, as provided in the first and second sections of the act of 1875, are found to exist in this case; the amount exceeds $500 and the parties are citizens of different States. Nothing more is required. Brooks v. Bailey, 9 Fed. Rep. 438; Petterson v. Chapman, 13 Blatchf. 395; Claflin v. Ins. Co., 110 U. S. 81. The subsequent clause of the first section, which provides that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings," does not limit the jurisdiction of the court but relates to the mode of acquiring it. It is intended for the protection of the defendant and confers a privilege which he can waive by appearing without asserting it. Robinson v. Nat. Stock-yard Co., 12 Fed. Rep. 361; Toland v. Sprague, 12 Pet. 300; Sayles v. N. W. Ins. Co., supra; Flanders v. Etna Ins. Co., 3 Mas. 158; Gracie v. Palmer, 8 Wheat. 699; Kelsey v. Penn. R. Co., 14 Blatchf. C. C. 89. If permitted to do so, the plaintiff would undoubtedly have little difficulty in showing that the defendant is found within this district and is therefore in no position to claim the benefit of the privilege alluded to, but confining the case strictly to the stipulated facts it must be held that the defendant has waived any objection which it might have taken. The jurisdiction of this court was invoked by
the defendant and it should abide the result in a forum of its own seeking. Cir. Ct., N. D. New York, June 6. 1884. Edwards v. Conn. Mut. Life Ins. Co. Opinion
by Coxe, J.
EASEMENT-IMPLIED RESERVATION-DEDICATION TO PUBLIC.-At common law a dedication does not pass a fee or freehold in the soil, nor give any right to the profits of the soil. It only serves as an estoppel in pais to the owner of the soil to assert any rights of possession inconsistent with the enjoyment of the uses to which the dedication was made. Washb. Easem. 220. A dedication may be made without writing by act in pais as well as by deed. It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party
of his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. Where as in the case of a highway, the public acquire but a mere right of passage, the owner, who makes the dedication, retains a right to use the land in any way compatible with the full enjoyment of the public easement. Id. 216; Hunter v. Trustees, 6 Hill, 411; Tallmadge v. East River Bank, 26 N. Y. 108; Dubuque v. Maloney, 9 Iowa, 455. The public takes no more than the owner gives. Where a plat of land has been dedicated as a public square, the authorities of the town were prohibited from making use of the land for purposes inconsistent with its use as a public square. Abbott v. Mills, 3 Vt. 521; State v. Catlin, id. 530; Pomeroy v. Mills, id. 279; Cincinnati v. White's Lessees, 6 Pet. 431. It follows that the municipal authorities cannot deprive the owner of land, who has simply dedicated to the public an easement to pass over it, of any use of the land dedicated not inconsistent with the full enjoyment of the easement. Cir. Ct., E. D. Tenn., April, 1884. Stevenson v. Chattanooga. Opinion by Key, J.
STATUTE OF FRAUDS-CONTRACT FOR SALE OF GOODS -MEMORANDUM.-The travelling agent of the defend ant company addressed to his principals an order, "send to C. W. S. Banks' terms net 30 days; freight allowed," signed by him as agent and followed by a list of the merchandise desired, with prices and directions for shipping, signed by Banks, the plaintiff. Held, that the paper was upon its face merely an order, and not a memorandum of sale signed by the defendant or his agent, within the terms of the statute of frauds. There is no real question but that these instruments sufficiently set forth the terms of the sale, if they show a sale, nor but that the name of the agent is sufficiently signed to the memorandum, if it is a memorandum of a bargain of sale and he had authority to bind the defendant to a contract of sale. Drury v. Young, 58 Md. 546. The memorandum must set forth on its face enough to gather a contract of sale from, as against the party to be charged with the consequences of such a contract in the action. Egerton v. Mathews, East, 307; Cooper v. Smith, 15 id. 103; Bailey v. Ogden, 3 Johns. 399. This memorandum appears to be of an order, and not of a sale, and would so far as it shows for itself, fail to make out a sale without acceptance of the order. Chit. Cont. 349. Cir. Ct., D. Vermont, March 20, 1884. Banks v. Harris Manf. Co. Opinion by Wheeler, J. (See 20 Fed. Rep. 668, note; 47 Am. Rep. 532; 48 id. 110.--ED.)
care and labor in consequence of her child's sickness, and sustained pecuniary loss by reason of boarders being kept away. Held, that defendant was liable for damages. The carrying of persons infected with contagious diseases along public thoroughfares, so as to endanger the health of other travellers, is indictable as a nuisance. Add. Torts, § 297; Rex v. Vantandillo, 4 Maule & S. 73. Spreading contagious diseases among animals by negligently disposing of, or allowing to escape, animals infected, is actionable. Add. Torts (Wood's Ed.), 10, note; Anderson v. Buckton, 1 Stra. 192. A person sustaining an injury not common to others by a nuisance is entitled to an action. Co. Litt. 56a. Negligently imparting such a disease to a person is clearly as great an injury as to impute the having it; and negligently affecting the health of persons injuriously as great a wrong as so affecting that of animals. Cir. Ct., S. D. New York, July 5, 1884. Smith v. Baker. Opinion by Wheeler, J.
PLEDGE-SECURITIES-REHYPOTHECATION BY BROKER.-Where the owner of securities pledges them with a stock-broker as collateral to a loan, the latter has no right to rehypothecate them in such a way that they cannot be restored to the owner upon payment of the loan, although both parties understood that the broker would have to use the securities to obtain the loan. Usage is inadmissible to destroy a contract. Cir. Ct., S. D. New York, June 21, 1884. Oregon & Transcontinental Co. v. Hilmers. Opinion by Wallace, J.
TRUST-DECLARATION OF MANUAL DELIVERY.In cases of declarations of trust and deeds of conveyance or mortgage, when nothing further is expected to be done by the beneficiary or grantee to complete the transaction as a whole, a formal sealing and delivery, without an actual delivery to the other party, or to a third person for his use, will be sufficient to make the deed or declaration operative immediately, unless something else exist or be done to qualify such formal delivery. In Hope v. Harman, 11 Jur. 1097, Mr. Hope executed a deed to his nephew for a box of jewels, in the presence of a witness, who signed the attesting clause, 'signed, sealed, and delivered." The deed never went out of the possession of the grantor, and Lord Denman left it to the jury to say whether it had been duly executed and delivered with intent to operate immediately, and the jury found that it had been. The instruction was held by the court in banc to have been correct. But declarations of trust are often sustained by much less regard to evidence of delivery than is required for establishing deeds of conveyance. Thus in Fletcher v. Fletcher, 4 Hare, 67, the testator by a voluntary deed, covenanted with trustees that in case A. and B., his two natural sons, should survive him, his executors and administrators should pay to trustees named £60,000 upon trust for them to be paid at 21 years of age. He retained the deed in his possession and told no one of it. By his will he bequeathed all his property in trust for his widow and other persons. The deed was found among his pa pers. It was held by Vice-Chancellor Wigram that it created a trust for A. (who survived the grantor), though the trustee refused to sue at law; and that the retention of the deed in the grantor's custody, and not communicating its existence to the trustee or cestui que trust, did not affect its validity. On the last point the vice-chancellor referred to Dillon v. Coppin, 4 Myln & C. 660, and to Doe v. Knight, 5 Barn. & C. 671. This subject is discussed in Adams v. Adams, 21 Wall. 185; in Buun v. Winthrop, 1 Johns. Ch. 329; Souverbye v. Arden, id. 255; and in Lewin Trusts, 152. Mr. Lewin, as quoted in Adams v. Adams, gives the following rules on this subject: "On a careful examination the rule appears to be, that whether there
was transmutation of possession or not, the trust will be supported, provided it was in the first instauce perfectly created. *** It is evident that a trust is not perfectly created where there is a mere intention or voluntary agreement to establish a trust, the settler himself contemplating some further act for the purpose of giving it completion. ** *If the settler propose to convert himself into a trustee, then the trust is perfectly created, and will be enforced as soon as the settler has executed an express declaration of trust intended to be final and binding upon him, and in this case it is immaterial whether the nature of the * * property be legal or equitable. * Where the settler proposes to make a stranger the trustee, then to ascertain whether a valid trust has been created or not, we must take the following distinctions: If the subject of the trust be a legal interest, and one capable of legal transmutation, as land, or chattels, etc., the trust is not perfectly created unless the legal interest be actually vested in the trustee." It seems to us that the deed in question, regarded merely as a declaration of trust, was clearly executed in a manner to fulfill all the requirements of such an instrument; though we are further of opinion that it was well and sufficiently executed and delivered as a deed of conveyance to transfer the legal title. Doe v. Knight, 5 B. & C. 671; Blight v. Schenck, 10 Penn. St. 285; Diehl v. Emig, 15 P. F. Smith, 320. Cir. Ct., W. D. Penn., May 23, 1884. Linton v. Brown's Admrs. Opinion by Bradley, J.
MICHIGAN SUPREME COURT ABSTRACT.
NOTICE.-An innkeeper's liability for a guest's baggage is not diminished, but rather increased, by the fact that the guest has got too drunk at his bar to take care of it himself. A guest's obligation to notify the innkeeper if he has property of extraordinary value in his baggage does not attach to a peddler stopping at an inn with his pack, or with the usual appurtenances of his business. So held in the case of a peddler who put up at an inn with a comrade, each having a valise and a small box, their baggage amounting to upwards of $300, and whose goods and valise were taken while in the landlord's care. Rubenstein v. Cruikshanks. Opinion by Sherwood, J. (21 Eng. Rep. 561.)
[Decided June 18, 1884.]
TOWN- DIVIDED― DEBT - MANDAMUS.- Where a township is divided into two parts, one part taking a new name and the other retaining the old name, the latter still exists as the old township, and is chargeable with its obligations, and a writ of mandamus will issue to compel it to meet them. Courtright v. Brooks Township. Opinion by Cooley, C. J. (See 11 Am. Rep. 602; 21 Eng. Rep. 267.-ED.)
[Decided June 18, 1884.]
HIGHWAY-LIABILITY OF COMMISSIONER — ABUTTING OWNERS - DAMNUM ABSQUE INJURIA-" WILFULLY."—(1) A commissioner of highways, or an overseer acting under his direction, incurs no liability to abutting owners, if in the proper exercise of his lawful discretion, and for the sole purpose of improving the highway, he runs a ditch in front of their premises which they have to bridge in order to reach the road. The injury, if any, which a lawfully constructed ditch occasions an abutting owner, is damnum absque injuria. Acts done by authority of a valid statute, and with reasonable care, will not support any liability for resulting damage. (2) Abutting owners have the right of access to the highway, and one who has been cut off therefrom by the running of a ditch, or the improvement of the road, may bridge the ditch,
or grade the approach to his premises; but in so doing he must not obstruct the ditch or the way. (3) It is "wilfully" obstructing a public ditch for one who knows its character to purposely and perversely fill it up in a permanent way, even though his object is to obtain access from his lands to the highway, and the act is done under a mistaken notion of his rights. The word "wilfully," when used to denote the intent with which an act is done, is a word which is susceptible of different significations, depending upon the context in which it is used. It is employed in penal statutes more frequently to distinguish between those acts which are intentional and by design and those which are thoughtless or accidental. It may sometimes mean corruptly or unlawfully, or again designedly or purposely, with an intent to do some act in violation of the law. Com. v. Bradford, 9 Metc. 270; Com. v. Brooks, 9 Gray, 303; Com. v. McLaughlin, 105 Mass. 463. Sometimes it is used as implying an evil intent without justifiable excuse. 1 Bish. Crim. Law, § 421; State v. Abram, 10 Ala. 928; McMauus v. State, 36 id. 285; Com. v. Kneeland, 20 Pick. 206; United States v. Three Railroad Cos., 1 Abb. 196; State v. Preston, 34 Wis. 675; 47 Am. Rep. 311. Commissioners v. Ely. Opinion by Champlin, J. [Decided June 18, 1884.]
LIMITATION.—When a petition for the appointment of a guardian for a child six or seven years of age was signed in the name of the child, and a guardian was appointed and gave bond, etc., held, sufficient to give the court jurisdiction. When the records of the Probate Court showed a license to a guardian to sell the real estate of his ward, a sale and coufirmation thereof, and the execution of a deed to the purchaser, it will be presumed twenty-two years afterward, in an action by the ward to recover the land, that the necessary steps were taken to procure the issuing of the license. Bank of United States v. Dandridge, 12 Wheat. 70; Coombs v. Lane, 4 Ohio St. 112; Ward v. Barrows, 2 id. 241; Tecumseh Town-site Case, 3 Neb. 284. This doctrine is peculiarly applicable to a new State, where from lack of conveniences, and from the ease with which access may be had to them, papers cannot or at least are not, as carefully preserved as in older communities. This consideration with others led to the incorporation into both our Constitutions of the clause requiring sales of real estate by executors, administrators, and guardians to be licensed by the judge of the District Court. We therefore hold that in the absence of proof to the contrary the issuing of license to sell real estate presupposes the existence of the necessary steps to authorize its issue. See Grignon v. Aster, 2 How. 339; Thompson v. Tolmie, 2 Pet. 162; Ballow v. Hudson, 13 Gratt. 672; McPherson v. Cunliff, 11 S. & R. 422; Lalanne v. Moreau, 13 La. 433. A settlement by a ward after he comes of age with his guardian, acceptance of the proceeds of sales made by him, and discharge of the guardian and sureties on his bond, is a ratification of his acts. No action can be maintained by a ward to recover lands sold by his guardian unless the action is commenced within five years next after the ward comes of age. It is claimed on Didier's behalf that the five-years' limitation of the decedents' act only applies in case the sale was valid. There would seem to be no necessity for a statute of limitations to protect a title valid in itself. The statute without doubt, was intended to apply to all sales made by a guardian, executor, or administrator. Spencer v. Sheehan, 19 Minn. 338 (Gil. 292); Miller v. Sullivan, 4
Dill. 340; Good v. Norley, 28 Iowa, 188. This case was overruled in Boyles v. Boyles, 37 id. 592; but in our view the opinion in 28 id. is the better law. Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 id. 524; Arnold v. Sabin, 1 id. 525; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 id. 506. Seward v. Didier. Opinion by Maxwell, J.
[Decided May 27, 1884.]
LIMITATIONS-PROMISE TO PAY - REVIVES — TO OPEN AND CLOSE.—(1) A writing sigued 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. Rolfe v. Pillond. Opinion by Reese, J. [(1) See 35 Am. Rep. 576; 30 Eng. Rep. 207. (2) 22 Eng. Rep. 739.-ED.] [Decided May 28, 1884.]
JOINT-STOCK COMPANY ORGANIZATION TO SELL TOWN LOTS-DEED.-Certain owners in severalty of a tract of land laid the same off into a town-site, and organized a company to sell the lots. There was no conveyance to the company of the interests of the several owners of the land, but each shareholder received his quota of stock, and the articles of the association provided that deeds for lots sold were to be executed by the president and secretary. Held (1) to be a jointstock company; (2) that as each partner had authorized a conveyance by the president and secretary, his title passed by such deed. In Fereday v. Wightwick, 1 Russ. & M. 45, it is said that all property acquired for the purpose of a trading concern, whether of a personal or real nature, is to be considered as partnership property, and is to be applied accordingly in satisfaction of the demands of the partnership. Fall River, etc., Co. v. Borden, 10 Cush. 458. But it is said that there has been no conveyance of the legal title by the individual members of this company; hence they still hold the legal title to said lots. Real property acquired, with partnership funds for partnership purposes is regarded in equity as personal estate, so far as the adjustment of partnership rights and payment of partnership debts are concerned. In the view of a court of equity it is immaterial in whose name the legal title to such property may be taken, whether in the name of one or all the partners, as the person holding the legal title does so for copartnership purposes. Dupuy v Leavenworth, 17 Cal. 263: Buckley v. Buckley, 11 Barb. 45; Kendall v. Rider, 35 id. 100. In Fowler v. Bailey, 14 Wis. 140, it is said: "It is a familiar principle of the law of partnership that when partners intend to give real estate the character of partnership property, and when they use it and treat it as such, then it will like all other assets of the firm be applied to the payment of the partnership debts, notwithstanding the paper title may happen to be in one partner, or appear to be in all as tenants in common." Fairchild v. Fairchild, 64 N. Y. 471. But while real estate purchased with partnership funds and held as partnership property will be listed as personal property, yet ordinarily in the absence of express authority, one partner cannot convey the whole title to real estate unless the entire title is vested in him. Chester v. Dickerson, 54 N. Y. 1; Van Brunt v. Applegate, 44 id. 544. But an absent partner may be bound by a deed executed by a copartner in the firm
name, if there was either a previous parol authority or a subsequent parol adoption of the act. 3 Kent Com. 48; Skinner v. Dayton, 19 Johns. 513; Cady v. Shepherd, 11 Pick. 405, 406; Bond v. Aitkin, 6 Watts & S. 165. And a deed executed by a partner in the firm name is effectual to convey all his interest. Clement v. Brush, 3 Johns. Cas. 180; McBride v. Hagan, 1 Wend. 326; Nunnely v. Doherty, 1 Yerg. 26; Waugh v. Carriger, id. 31; Morris v. Spence, 4 Harr. (Del.) 428; Jackson v. Stanford, 19 Ga. 15. Therefore had each partner executed deeds in the firm name, without authority from his copartners, to purchasers of lots, the purchasers would have acquired the title of all the partners. The same result would follow from the express authority from such partner, conferred upon the president and secretary, to execute deeds in the name of the copartnership. That this authority was given, not only in the articles of association, but by a separate irrevocable power of attorney by each stockholder and wife, is clearly established. Batty v. Adams Co. Opinion by Maxwell, J. [Decided May 29, 1884.]
MISSOURI SUPREME COURT ABSTRACT.*
ECCLESIASTICAL LAW-DECISIONS OF CHURCH CONCLUSIVE--LIBEL--CONSTITUTIONAL LAW--PUBLICATION OF LIBEL.-(1) It is the established doctrine that in matters purely ecclesiastical, not affecting property rights, the decisions of the proper church judicatories made in good faith are conclusive upon civil tribunals. The provision of the Constitution (§ 10, art. 11) that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, in no manner alters this rule. It means only that for such wrongs as are recognized by the law of the land the courts shall be open and afford a
remedy. Harmon v. Dreher, 1 Speers Eq. 87; Robert
son v. Bullions, 9 Barb. 134; Shannon v. Frost, 3 B. Monr. 261; German Reformed Church v. Seibert, 3 Penn. St. 282; State ex rel. v. Farris, 45 Mo. 183; Watson v. Garvin, 54 id. 364. (2) The plaintiff, a member of the Presbyterian Church, was tried by a session of the church in his absence, and without notice to him, upon a charge preferred by the pastor, who was a member of the session, that plaintiff had made false and defamatory statements concerning the pastor, and he was excommunicated by resolution of the session. Held, that unless the charge was false, and the members of the session maliciously, falsely or colorably made the proceedings against plaintiff a pretense for covering an intended scandal, they had not laid themselves open to action for libel. Farnsworth v. Storrs, 5 Cush. 412; Streety v. Wood, 15 Barb. 105; Shurtleff v. Stevens, 51 Vt. 514; S. C., 31 Am. Rep. 698. And the burden of proving express malice is upon the plaintiff. Shurtleff v. Stevens, supra; Town. Sland. 386; 2 Add. Torts, 931; Bradley v. Heath, 12 Pick. 163; Van Wyck v. Aspinwall, 17 N. Y. 190; Lewis v. Chapman, 16 id. 369; Vanderzee v. McGregor, 12 Wend. 545; Klink v. Colby, 46 N. Y. 427; S. C., 7 Am. Rep. 360. (3) The clerk of the session entered the resolution of excommunication and a preamble accompanying it upon the minute book of the session, exhibited them to members of the session for their signature, and sent plaintiff a written copy, and the pastor read both preamble and resolution to the congregation in church. Held, that these acts did not of themselves amount to a publication of a libel, or furnish a foundation for an action against either clerk or pastor. Landis v. Campbell. Opinion by Henry, J. ( See Isham v. Fullager, 14 Abb. N. C. 363.-Ed.)
*To appear in 70 Missouri Reports.
CARRIER RESTRICTING LIABILITY DUTY AS TO PROVIDING TRANSPORTATION.-(1) A contract by which a common carrier undertakes to relieve himself of all liability for damages occasioned by any delay in transportation and to impose them upon the shipper, will be effectual to protect the carrier only against the consequences of delays not caused by his own negligence. Harvey v. Railroad Co., 74 Mo. 541; Sturgeon v. Railroad Co., 65 id. 569; Rice v. Railroad Co., 63 id. 314; St. Louis, K. C. & N. Ry. Co. v. Cleary, 77 id. 634. (2) It is the duty of a common carrier to provide sufficient facilities and means of transportatiou for all freight which it should reasonably expect will be offered, but it is not bound to provide in advance for extraordinary occasions, nor for an unusual influx of business which is not reasonably to be expected. (3) If he receive property for transportation without any agreement to the contrary, he thereby undertakes to carry and deliver it within a reasonable time, regardless of any extraordinary or unexpected pressure of business upon him. Dawson v. Chicago & Alton R. Co. Opinion by Hough, C. J.
MUNICIPAL CORPORATION-NUISANCE-POWER TO ABATE.-Power conferred upon a municipal corporation to abate nuisances is conferred for the public good, and not for any private corporate advantage, and for the failure of its officers to properly exercise the power the municipality is not liable. Citing Murtaugh v. St. Louis, 44 Mo. 479. Armstrong v. City of Brunswick. Opinion by Norton, J.
CHILD SERVICES REN
CONTRACT-PARENT AND DERED-PROVISION IN WILL.-(1) Valuable services which would as between strangers raise an implied promise to pay for them, when performed for a person in loco parentis will not of themselves have that effect; and this whether they are performed wholly during minority or partly after majority. Guenther v. Birkicht, 22 Mo. 439; Hart v. Hart, 41 id. 431; Smith v. Myers, 19 id. 443. (2) In an action against the estate of a deceased person for services performed for him during his life-time, held, that his will making provision for the plaintiff was properly admitted in evidence as corroborative of the claim made in defense that the position of plaintiff was that of a member of the family of the deceased, and as bearing upon the supposed undertaking to pay wages for his services. Cowell v. Roberts. Opinion by Martin, Comr.
MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.
WILL-GIFT-PER CAPITA.-In this case the words of the will are: "The residue and remainder of the property left by my said wife shall be equally divided among my brothers and sisters and their heirs, after having paid the two last named legacies." The argument of the appellant is that this is a gift to a class; that only those of the class take who survive the testator; and that the words "and their heirs" are words of limitation, and were used to express the intention of the testator to give the absolute property. The argument of the appellees is, that by the use of the plural word "sisters" the testator must have intended not only his sister who was living, but his sisters who had deceased; and as these last could not take, the testator intended that their heirs should take the shares appropriate to them in the division. This question is one of difficulty, but we are inclined to the view of the appellees, for the reasons given in Gowling v. Thompson, L. R., 11 Eq. 336. See also Barnaby v. Tassell, id. 363: In re Sibley's Trust, 5 Ch. D. 494; 22 Eng. R. 246; Widgen v. Mello, 23 Ch. D. 737;
Richey v. Johnson, 30 Opinion by Field, J.
Davis v. Taul, 6 Dana, 51; Ohio, 288. Huntress v. Place. [Decided June, 1884.] CONVERSION-INSTRUCTIONS--EXCEPTION TO CHARGE. -The auditor's reports find that the defendant converted to his own use the chattels specified in the declaration, and that he "owes the plaintiff upon the various items of account the sum of money respectively opposite each item," setting forth a sum certain in respect of each. These words plainly import that the the auditor does not find that fact in terms, and that goods belonged to the plaintiff; and the objection that his phraseology is inapt, is too refined, even if it were open here upon exceptions to the refusal to recommit or to the admission of the reports in evidence. Butterworth v. Western Assur. Co., 132 Mass. 489. Or to the refusal to rule upon the sufficiency of the plaint iff's evidence to maintain the action, or to direct a verdict before the whole testimony was closed on both sides. Wetherbee v. Potter, 99 Mass. 354; Kingsford V. Hood, 105 id. 495. At the close of the argument for the defendant his counsel presented twenty-three requests for instructions, but the court declined to rule upon them on the ground that they were not seasonably presented, at the same time saying, that at the close of the charge, the counsel could ask for such further instructions and except to such parts of the charge as he saw fit. At the end of the charge the court reported that if there were matters which counsel conceived had been omitted, they might call attention to them. This course was exactly in accordance with the decision in Ela v. Cockshott, 119 Mass. 416, 418, as generally understood and acted upon. We do not see sufficient reason for disturbing the now settled practice which leaves it within the discretion of the court, when a
multitude of requests are presented after the arguments have begun, to throw the burden on counsel of calling attention to points not dealt with, at the end of the charge, with the right of course to except to such portions of the charge as they deem erroneous. The defendant's general exception to the charge, without pointing out particulars, was bad. Curry v. Porter, 125 Mass. 94. McMahon v. O'Connor. Opinion by Holmes, J.
[Decided May, 1884.]
WILL-MARRIED WOMAN-REVOCATION-SUBSEQUENT MARRIAGE.-It has been settled at common law that the marriage of a femme sole revokes her will. In case of a man it is equally well settled that marriage alone does not revoke his will, but that marriage and the birth of a child do. 1 Jar. Wills, 122; Warner v. Beach, 4 Gray, 162. If we were under no restraint, we might well hesitate to hold that since testamentary capacity has been given to women, her will made when sole should be revoked only by marriage and the birth of a child, as in case of a man, for the sake of uniformity only, when we are inclined to think a better rule would be that in case of a man his will should be revoked by marriage alone. But such a rule can only be introduced by the Legislature. In England, by 1 Vic., ch. 26, § 18, and in many of the States in this country, it has been provided by statute that the wills of both men and women shall be revoked by marriage. See collection of statutes in 1 Jar. Wills, 122, notes to Bigelow's ed. But we are of opinion that the question now before us has been so far settled by statute as not to admit of change by construction. R. S., ch. 127, § 8, after providing that no will shall be revoked unless by burning, tearing, etc., or some other writing executed in the manner required in the case of a will, goes on as follows: "But nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." It is not apparent that an entire rero