Gambar halaman


forts and her credit are her husband's since the act of calls attention to the fact that equity will interfere to 1848 as before. What she may be said to acquire as the prevent acts of trespass and nuisauce, where redress can result of her skill and industry, or on her merely per- be had only through a multiplicity of suits, or where sonal credit, accrues to the husband, and as to credit- the wrongful acts may become the foundation of an ors is to be taken as his. Raybold v. Ray bold, 8 Har- adverse right, such as the diversion of water. On ris, 311; Bucher v. Ream, 18 P. F. S. 421. Goods pur- similar principles, equity will interfere to compel the chased by a married woman, on her own credit, are restoration of a violated right, as the closing of winnot her separate property (Robinson v. Wallace, 3 Wr. dows and other openings left in a party wall. Voll133); her credit is nothing in the eyes of the law; mer's Appeal, 11 P.F. S.118, and Milne's Appeal,11 W. when she does contract, the law esteems her the agent Notes, 330. It is true,as was said in Rhea v. Forsyth.1 Wr. of her husband. Heugh v. Jones, 8 Casey, 432; Hallo- 503, a court of equity will uot ordinarily interfere to well v. Horter, 11 id. 375. A married woman must prevent the disturbance of an alleged easement when have a separate estate to protect her purchase upon the right of the complainant is doubtful or seriously credit; an estate available and proportionate to the disputed, uutil he has established his claim by an accredit it supports. The purchase must in fact be tion at law. But even in such case the court may remade, not upon her credit, but upon the credit of her tain the bill until the plaintiff has had time to settle separate estate, upon her ability to pay out of her own Buch right in a court of common law; and if in the funds. Gault v. Satfin, 8 Wr. 307. The ownership of meantime it appears to be necessary, the defendant the corpus of an estate, real or personal, gives title to may be enjoined from meddling with the easement; its incomes and profits. The title to lands gives title in other words, the chancellor may keep things in to its products, no matter whose labor may have been statu quo until he is in a position to make a final deexpended in the production. Rush v. Vought, 5 P. F.

Bitting's Appeal. Opinion by Gordon, J. S. 442; Musser v. Gardner, 16 id. 247. But a married woman cannot acquire title to land upon the credit of its after production). Nor to any property or business KANSAS SUPREME COURT ABSTRACT.* • upon its prospective profits. The production and profits are in general the results of the labor of the DEED-BLANK GRANTEE_TITLE TO GROWING CROPS. husband and wife, or their children, and whilst cred- - Where C. in good faith purchases land from S., and itors have no claim on the husband's labor or that of afterward S. delivers to C. a deed of conveyance for his family as such, yet when that labor acquires title the land completely executed by V., who was in fact to property they may have a claim upon the property the owner of the land, and C. in good faith accepts the thus acquired. Where the estate is hers, the produc- deed, having no notice that the deed had been origition is bers; the labor expended in realizing incomes nally executed to a blank grantee, and having no notice cannot affect the title to either. (2) Where a wife of any agreement between S. and V. which might claims property as against her husband's creditors she limit the effect of the deed, and S. is not the agent of must show affirmatively by clear and full proof that either C. or V., but acts for himself, and no question she paid for it with her own separate funds. Keeny is at any time raised with regard to the validity of the v. Good, 9 Harris, 355; Gamber v. Gamber, 6 id. 366. deed as a conveyance of the land, and V. delivers the She must make it clearly appear that the means of possession of the land to C. without questioning C.'s acquisition were her own, independently of her hus- title thereto or to any thing thereon, but afterward band. Auble Adm’rs v. Mason, 11 Casey, 262. Lein. V. claims that he is entitled to the crops growing on bach y. Templin. Opinion by Clark, J. (See 14 Week. the land by virtue of a parol agreement with S., held, Notes, 134.)

that the deed will not only convey to O. the land, but [Decided May 26, 1884.]

it will also convey to him all the crops growing thereon,

although it may be that V. when he executed the deed EASEMENT CONTINUING RIGHTS - INJUNCTION.

believed that he was executing the same to S., and Where the rights are continuing, or redress can be had although in fact he executed the deed to a blank only through a multiplicity of suits, or where the grantee, and that S. afterward filled up the blank by wrongful acts may become the foundation of an ad- inserting the name of C., and although there may have verse right, equity will interfere to restrain the inva- been a parol agreement between V. and S. that the sion of such rights. It is unnecessary that rights set crops growing on the land should continue to be the up in the bill should be established at law where the property of V. Under the circumstances, we think bill is demurred to; the demurrer admits the rights. the deed conveyed and transferred ail that such a deed A., the owner of land, averring that he had a right by would ordinarily convey and transfer. Ayres v. Progrant to have the water from a certain creek run at basco, 14 Kans. 175; Tucker v. Allen, 16 id. 312; Mo certain times to his land through races on the land of Neil v. Jordan, 28 id. 7; Ort v. Fowler, 31 id. 478. And B., filed a bill in equity praying for an injunction to where a deed is executed for real estate, and no reser. restrain B. from obstructing the flow of water through vation of growing crops is contained in the deed, the said races. On demurrer to the bill, held, that a court | growing crops will become the property of the grantee of equity would take jurisdiction. The case of mentioned in the deed. Tiedman on Real Prop., $S 2, Scheetz's Appeal, 11 Casey, 88, is iu point. In this 799, and cases there cited; Smith v. Hague, 25 Kans. case there was a bill praying for an injunction to pre- 246; Babcock v. Dieter, 30 id. 172. Chapman v. Veach. vent the defendant from interfering with the plaint- Opinion by Valentine, J. (As to execution of deed in iff's right to enter upon, clean and clear from obstruc- blank, see 56 How. Pr. 38; 14 Am. Rep. 435, note.tione a stream called Sandy Run, flowing through the Ed.) laud of the defendant, to the use of which the plaint

REPLEVIN-WIFE OF ABSCONDING HUSBAND CANiff had a prescriptive right for the purpose of driving

NOT MAINTAIN.-- Where the husband had a written the machinery of his grist-mill. The bill was sus

lease of one hundred and sixty acres of land, most of tained and the injunction granted. In the opinion of this court, delivered by Mr. Justice Thompson, it was

which he had sowed in fall wheat, and in November,

after the wheat had been sowed, he handed his father said that in a case like this damages at law would be

the lease and said to him, “this lease is yours; I got it wholly inadequate to the vindication of such a right, and that successive suits for successive interferences,

for your special benefit; " and soon thereafter the instead of redressing the wrong, would in the end be

husband abandoned his family, consisting of a wife worse than the wrong itself. The learned justice also

*Appearing in 32 Kansas Reports.

and two children, and left the country, going to a dis- because it attempts to change the terms of the contant State; and the father, the next summer, when the tract; and the State Legislature can no more change wheat was ripe, cut and stacked the same, and while the place of payment of negotiable paper than it can he was threshing it an action of replevin was com- alter any other of the provisions of the contract. menced by the wife of the absent husband to recover Bronson v. Kinzie, 1 How. (U. S.) 311; Bank F. Mcpossession of the wheat; and thereafter and before Veigh, 20 Gratt. 457. If the Legislature of Kansas can the trial, the husband made a written assignment of make the bonds of Leavenworth county payable at the the lease, dating it as of the time he handed to his fiscal agency of the State in New York, when the father, held, that the wife of the absconding hus- bonds upon their face are payable at a particular bank band has no title to the wheat raised upon the leased in New York city, it has the authority to make them land, and is not entitled to maintain an action in her payable at any bank in Leavenworth city. This it own name to recover possession of any part of it. cannot do, because such a change would deprire the Spurgeon v. Spurgeon. Opinion by Horton, C. J. holders of the bonds of the legal rights contracted LIBEL AND SLANDER--PLEADING-DENIAL AND JUS

when they purchased the same. The changing of the TIFICATION.-In an action for slander the defendant

place of payment of negotiable paper already deliv. may set up the defenses: First, that he did not use the

ered, by an act of the Legislature, is a very different language imputed to him; and second, that such lan

thing from the State passing a law merely changing guage is true. The two defenses are not inconsistent

the remedy upon a contract, which is held not to be with each other, and both may be true. Townshend

liable to any constitutional objection. Bronson v. Sland. and Lib., SS 353, 361. Colev. Woodson. Opinion

Kinzie, supra. Dillingham v. Hook. Opinion by Horby Horton, C.J. (See 2 Am. Rep. 68; 29 Eng. Rep.

ton, C. J. 313.-ED.)


NEW NOTE NOT.-On October 1, 1875, one G., as surety, PAYMENT-CHECK-WHEN NOT.- A check on a bank

signed a promissory note of the amount of $1,822.50, is not prima facie evidence of the payment of the orig

payable one day after date to the order of the bank. inal debt; and clearly a check drawn in favor of the

On April 17, 1876, G., the said surety, executed his own debtor's agent is not prima facie evidence of the pay.

note to the bank for the full amount of the note upon ment of the debt to the creditor, even if the creditor

which he was surety, and thereon the bank wrote assents that the check shall be so drawn. In order that

across the face of the first note, “Received of G., a check on a bank shall be payment of the original

surety, $1,949.04 in full payment," and the cashier debt, it must be agreed by the parties that it shall be

signed his name thereto. This was upon an arrangesuch payment and be taken by the creditor as pay.

ment and understanding between the surety and the ment. Edwards Bills and Notes, $ 277; Kermeyer v.

bank that the note of October 1, 1875, should be turned Newby, 14 Kans. 161; McCoy v. Hazlett, id. 430; Shep

over to the surety solely for the purpose of enabling ard v. Allen, 16 id. 182, 184, bottom of page; Medberry

him to collect from the priucipal, or from property v. Soper, 17 id. 369, 375. Mullins v. Brown. Opinion by

which it was supposed could be reached as the princi. Valentine, J. (See 57 N. Y. 641.)

pal's, the amount of the note or as much thereof as he CONSTITUTIONAL LAW IMPAIRING CONTRACT

could ; that the surety was to commence suit against COUNTY BONDS- CHANGING PLACE OF PAYMENT.

the principal for that purpose, turn the amount colWhere the ponds of a county of the State of Kansas

lected over to the bank to be credited on the note, and are payable upon their face at a particular bank in the

assign to it the judgment, if any, obtained against the city of New York, and such bonds were executed and

principal, and be entitled to receive from the bank the delivered prior to the passage of the act entitled, “an

new vote, and that said new note be taken and held act to provide for the establishment of a fiscal agency

by the bank solely as security that the surety would for the State of Kansas in the city of New York, and

faithfully perform his part of the agreement. Held, prescribing the duties of officers in relation thereto,"

that said new note of the date of April 17, 1876, was approved March 6, 1874, said act cannot change the

not an acknowledgment of an existing liability on the place of payment of the bonds of the county; and its

part of the surety for the first note dated October 1,

Barnes provisions requiring the treasurer of the county by

1875, and was not a promise to pay that note. which the bonds were executed to remit to the fiscal

v. Gragg, 28 Kans. 51, 59; Hanson v. Towle, 19 id. 273; agency of the State-being a place different from that

Elder v. Dyer, 26 id. 604. Doggett v. Bell. Opinion by where the bonds are payable---sufficient moneys for

Horton, C. J. the payment of the bonds at the agency, is unconsti- CARRIER RESTRICTED LIABILITY - NEGLIGEXCEtutional and void ; the place of payment is a part of the ONUS ON PARTY ALLEGING.-A railroad company recontract, and a law which changes the terms of a con- ceived merchandise to be transported to a point betract impairs the same. By the contract the parties yond its own line of railroad, orer its own and other have fixed the rights and obligations, and this is re- lives of railroad connecting with it, and gave to the garded by the Constitution. A note or boud payable shippers its receipt stating that the merchandise was at a specified place is essentially different from one shipped “at owner's risk.” Held, that this receipt is which is payable generally. Lowe v. Bliss, 24 111. 168; a special contract limiting the liability of the carrier, Chitty on Bills, 566; Childs v. Laflin, 55 Ill. 159. If a and that such connecting lines of railroad are entitled county gives its negotiable bonds to pay certain mon- to the benefits of the exemption from liability specified eys on or before a specified day at a bank named in the in it, and that neither of the companies owning such bonds, the place of payment is a part of the contract, connecting lines is liable for damages to the merchanand a law which changes the terms of the contract, or dise transported, unless it is shown that such damages releases a part of its obligation, impairs the contract. arose from the negligence of the company sought to be If the act of 1874 is to be construed as requiring pay- charged. Whitworth v. Erie R. Co., 87 N. Y. 414; ment of the court-house bonds of Leavenworth county Kansas, etc., R. Co. v. Simpson, 30 Kaus. 645. It is executed before the taking effect of that act, at the well settled that when the liability of the common fiscal agency of the State in New York, the same be- carrier is limited by a special contract, the carrier ing a place different from that stated in the bonds, the is only liable for losses and damages caused by his own act must be held unconstitutional and void, as any negligence, aud the burden of proving the negligence law that arbitrarily changes the place of payment of is on the party who alleges it. Steamboat Emily F. negotiable paper after its execution cannot be upheld, Carney, 5 Kans. 645; Mo. Pac. R. Co. v. Haley, 25 id.



36 ; Sbearman and Redfield Neg., $ 12; Whitworth v. Story Part., SS 108, 131. Peckham Iron Co. v. Harper, Erie R. Co., 87 N. Y. 413. Kiff v. Atcheson, etc., R. Opnion by Dickman, J. Co. Opiniou by Hurd, J.



(1) M., a member of a firm at Kalamazoo, and doing

business under the name of Kalamazoo Wagon WILL-DYING WITHOUT ISSUE.-H., in her will, de- Company, composed of himself, H., I., and L.’s wife, vised, gave and bequeathed to C. B. and D. B., her

for an adequate consideration purchased of his partgrandchildren, one-sixth of her residuary estate. She

ners all of their interest" in the property, assets, then provided, that in case of the death of both grand

money, good-will and all other property, of every children, without issue, the property coming to them

name and nature, in and to the firm of Kalamazoo should be given to the other grandchildren of the tes.

Wagon Company," and continued the business under tatrix. It appeared from all the words of the will that

the old name. L. and other parties organized a corpothe contingency contemplated by the testatrix was one

ration under the name of Kalamazoo Buggy Company, to occur prior to the distribution of her estate. Held,

located their place of business in the immediate vicinthat if C. B. and D. B. survived the testatrix, their ity of M., and sent out circulars soliciting business, retitle to said share became absolute, and on their sub- sembling the circulars in use by him, and thus intersequent deaths, without issue, passed to their legal fered with and injured his business and trade. Held, heirs. Baker v. McGrew. Opinion by Nash, J.

that under the contract of sale M. was entitled to the

good will of the business purchased; that L. was CORPORATION-ADMISSION BY PLEADING-ESTOPPEL guilty of a breach of the contract; and that he and AGENT CANNOT PURCHASE — DAMAGES -- FRAUD the other members of the corporation should be perPARTNER BINDS FIRM.-(1) It is a well-settled rule, that petually enjoined from using the name of Kalamazoo parties are bound by their written adinissions made Buggy Company, or the circulars resembling those in the progress of a cause as a substitute for proof of used by M. in the transaction of their business. Beal any material fact, and cannot repudiate them at pleas v. Chase, 31 Mich. 490. (2) The decree of the Circuit ure. The admission of the existence of a corporation Court, in addition to enjoining defendants from use by pleading and setting forth the fact comes within of the name of Kalamazoo Buggy Company, and the the rule, and is binding as between parties to the suit, use of the circulars resembling M.'s circulars, enjoined aud in the same suit in which such admission is made. | defendants from receiving mail from the post-office Carradine v. Carradine, 33 Miss. 698; Elwood v. Lan- addressed to the Kalamazoo Buggy Company, with a non's Lessee, 27 Md. 200. The dealings of Harper & provision requiring M. to deliver to defendants any Co. with the Peckham Iron Company in its corporate mail received by him and intended for defendants, or name were of such a nature as not to permit a plea by either of them. Held, that this part of the decree was them of nul tiel corporation. In full recognition of the erroneous, and could not be sustained. Myers v. Kalaplaintiff as a body corporate, they got possession of mazoo Buggy Co. Opinion by Cooley, C. J. the one hundred and eighty tons of iron in question. [Decided Sept. 23, 1884.] The transaction they turned largely to their own pe


- EXTREME cuniary profit and advantage; and in subsequeut deal.

CRUELTY.-Separation is not necessarily desertion. ing with the plaintiff, in reference to a purchase of stock in its corporation, they fully recognized its cor

The latter may not arise until long after the former

has occurred. Reed v. Reed, Wright, 224; Ahrenfeldt porate existence and capacity. Under such circumstances, we think that Harper & Co. are estopped to

v. Ahrenfeldt, 1 Hoff. Ch. 47; Clement v. Mattison, 3 deny the legal existence of the plaintiff as a corpora- separation and desertion occur at the same time, the

Rich. 93; Fellows v. Fellows, 31 Me. 342. And when tion. Bigelow on Estop. 464; Newburg Petroleum Co. y. Weare, 27 Ohio St. 313; Farmers and Mercbants guilty party is not always the one who leaves the matIns. Co. v. Needles, 52 Mo. 17; City of St. Louis v.

rimonial home. St. John v. St. John, Wright, 211; id. Shields, 6? id. 247. (2) It is a fundamental rule, that 147; 2 Dane Abr. 308; Bish. Mar. & Div., $ 514. Deser

tion under the statute is the willful abandonment of an agent employed to sell cannot be a purchaser, unless he is known to his principal to be such; nor is the rule

one party by the other without cause, and against the inapplicable or relaxed when the employment is to sell

will of the party abandoned, for the period of two at a fixed price. Ruckman v. Bergholz, 37 N. J. L.

years. If the husband's conduct is so cruel toward 437. The law will not suffer one to earn a profit, or

his wife that she cannot live and cohabit with him

with safety to her health or without peril to her life, expose him to the temptation of a dereliction of his

or if she has good reason to believe she camot, and for duty, by allowing him to act at the same time in the double capacity of agent and purchaser. Church v.

such reason she leaves him and abandons his home,she Marine Ins. Co.,1 Mas. 341. As said by Chancellor

does not thereby commit the crime of desertion. In

such case she does not leave her husband or her home Walworth in Van Epps v. Van Epps, 9 Paige, 241, “it is a rule which applies universally to all who come

in consequence of any willfulness on her part, but is within its principle. (3) Where an agent, by false and

compelled by the cruelty of her husband and against fraudulent representations to his principal, obtains her will so to do. The desertion in such case is upon possession of his principal's goods and converts them

his part. and not upon hers. He as completely comto his own use, exemplary damages may be allowed;

mits the crime of desertion when, by his cruel couverand in such a case the jury in estimating the damages him and his home, as when be willfully and without

sation and conduct, he compels her for safety to leave may include the plaintiff's reasonable counsel fees as

cause leaves and abandons her. In all such cases the an item of compensation, Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 id. 534, 535. (4) Fraudu. husband is guilty of the crime or misconduct he lent representations by one partner, in the course of charges against the wife, and of course cannot have a the partnership business and transactions, will bind decree. 2 How. St., $ 6232. We have examined the the firm and create a liability co-extensive therewith.

testimony in this case with care, and find very many

of the averments contained in the answer sustained * To appear in 41 Ohio St. Reports.

by the proofs, particularly those relating to the crue.


language and conduct of complainant toward his wife. His parsimoniousness is also quite apparent. The language used by complainant to defendant, so far as the record shows, appears to have been without cause or provocation - intolerable among decent people - and clearly, under the decisions of this court, constituting extreme cruelty. Whitmore v. Whitmore, 49 Mich. 417; Palmer v. Palmer, 45 id. 150: Briggs v. Briggs, 20 id. 34; Bennett v. Bennett, 24 id. 482; Goodman v. Goodman, 26 id. 417. The defendant, as shown by the testimony, is a sensitive woman of good taste, culture and refinement. To her such language and treatment is the worst kind of cruelty. She endured it until it not only destroyed the comfort and happiness of her home, but threatened her health, and there was no hope of change. No rule of law or equity would compel her to remain longer with the complainant, and by leaving him she did not incur the penalty of giving her guilty husband cause for divorce. The Circuit Court evidently took this view of the case, and I fully agreo with Chief Justice Graves in his remarks in the case of Nicholas v. Nicholas, 50 Mich. 162, when he says the appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from, and been favored with all the advantages of that court for judging rightly before overruling the decree made. Warner v. Warner. Opinion by Sherwood, J. [Decided Sept. 23, 1884.)

EJECTMENT—INJUNCTION- LIMITATIONS - LACHES. -A man agreed with his son that the son should have a certain piece of property by way of advancement from his estate, and the son took possession of it accordingly. The father executed the deed with the avowed purpose of delivering it to the son, but it was lost. The father however recognized the advance. ment in his will by referring to it. Ejectment was brought for this laud by one who without consideration had obtained from another of the testator's children a deed of whatever interest the latter had in the land. Held, that the son who had occupied and improved it could maintain a bill to enjoin the action, and to clear and contirm his title. His possession and continued occupancy were sufficient notice of his claim, and his case was not barred either by the statute of limitations or by laches. Michie v. Ellair. Opinion by Sherwood, J. [Decided Sept. 23, 1884.]

CONTRACT-WANT OF MUTUALITY-RAILWAY INJURY-PHYSICIAN'S SERVICES – AGENCY. — Contracts cannot arise where there is no mutuality; and oertainly not where one persou not only had no intention of binding himself, but was not even supposed by the other to be making himself personally liable. A tramp was run over by a locomotive in a railway yard. A surgeon being summoned to help him, telephoned the railway superintendent and asked if he should do so. The superintendent answered “yes." Nothing was said about pay, and in fact the superintendent bad no authority to bind the railway company to pay for surgical aid. Held, that there was no contract upon which he was personally liable for it. Whether an agent is personally liable is a question of intention, and not an inference or conclusion drawn by the law (Heald v. Kenworthy, 10 Exch. 739, 743), except in the sense in which the law deduces intention from language and holds parties to the legitimate result of their words and actions. 2 Smith Lead. Cas. 383. We have already commented upon the words and actions relied upon by plaintiff as disclosing a cause of action against the de. fendant in this case. We have refrained from passing on the question raised by counsel for defendant, that in no case where a contract is made with an agent, which canuot be enforced because of the want of au

thority in the agent to make it, can the action against the agent be upon the contract because treating the de. fendant as principal, and the language used as applied personally to him, there exists no contract liability for which he is responsible. Buck v. Amidon, 4 Daly, 132; Smith v. Watson, 14 Vt. 332; Crane v. Baudouine, 55 N. Y. 256; Boyd v. Sappington, 4 Watts, 247; Williams v. Brickell, 37 Miss. 682; Woods v. Ayres, 39 Mich. 345. The court should have charged the jury, as requested in defendant's first and second requests, to the effect that defendant never promised to pay the plaintiff for the services and medical attendance and nursing sued for, and their verdict should have been for the defendant. Michigan Col. of Medicine F. Charlesworth. Opinion by Champliu, J. [Decided Sept. 23, 1884.)

STATUTE OF FRAUDS-REAL ESTATE-ORAL EMPLOYMENT OF AGENT TO PURCHASE-COMPENSATION.-An oral agreement to employ an agent to purchase real property and procure a conveyance thereof, and to pay him one-half the profits for which such property may be resold, as compensation for his services, is not within the statute of frauds. That statute (How. St., $ 6181) contemplates a transaction between parties contracting with each other as principals, and this was not such a transaction. In this case the plaintiff, as agent, undertook to perform for the defendant certain services, and the defendant undertook to make a compensation therefor, the amount of which should be contingent on the value of the services. It was assumed in Bunnell v. Taintor's Adm'r, 4 Conn. 568, that such a contract was not within the statute, and there are many express adjudications to the same effect. Tror. bridge v. Wetherbee, 11 Allen, 361; Fiero v. Fiero, 52 Barb. 288; Hess v. Fox, 10 Wend. 436; Bruce v. Hastings, 41 Vt. 380; Bannon v. Bean, 9 Iowa, 395; Harben v. Congdon, 1 Cold. 221; King v. Hanna, 9 B. Mon. 369; Heyn v. Philips, 37 (al. 529; Lesley v. Rosson, 39 Miss. 368; Benjamin v. Zell, 100 Peun. St. 33. Our attention bas been directed to no cases which are opposed to these. The defendant relies upon a number of decisions by this court which are supposed to have some bearing upon the case, but we fail to perceive their relevancy. Every one of them was a case in which an interest in lands was bargained for, and was to be acquired by one of the parties in pursuance of the terms of the contract. Hillebrands v. Nibbelink, 40 Mich. 646, may be taken as an illustration. The alleged verbal contract was that a father would convey to his son a farm in satisfaction of a certain claim; & contract as plainly within the statute as if the land were to be conveyed for an agreed price in money. Carr v. Leavitt. Opinion by Cooley, C. J. [Decided Sept. 23, 1884.)

AGENCY-AUTHORITY TO RECEIVE PAYMENT.-Presentation of a bill by a merchant's employee does not warrant the debtor thereon in paying it to him, unless it is within the scope of his employment to receive payment; and his mere statement that he is authorized to receive it is not enough, por is it enough tbat the bill is in the merchant's handwriting and on one of his bill heads. Kornemann v. Monaghan, 24 Mich. 36; Grover & Baker Sewing Machine Co. v. Polhemus, 31 id. 247; Reynolds v. Continental Ins. Co., 36 id. 131; McDonough v. Heyman, 38 id. 334. Hirskfield v. Waldron. Opinion by Champlin, J. (See 47 Am. Rep. 518; 26 Eng. Rep. 48.-ED.) [Decided Sept. 23, 1884.]

WILL-LEGACY-INTEREST ON.-As a general rule, interest is payable in money, ou the ground of delay in paying the principal, and with respect to legacies it is payable on them from the time they are actually due. There is a distinction in this respect between specifio

and general legacies. Specific legacies are considered pertinent and appropriate in the connection referred as severed from the bulk of the estate by operation of to, viz., the question of citizenship as the result of the will from the death of the testator, and appro- birth within a given territory. “Persons born on a priated for the benefit of the legatee from that period. public vessel of a foreign country" are ruled by the Consequently interest is computed on specific legacies same principle, as to national character, that applies from the death of the testator, whether the enjoyment to the children of foreign ambassadors and ministers, of the principal is postponed by the testator to a future to wit, the principle of extraterritoriality, while the period or not. With respect to general legacies the exclusion of " persons who, though born or naturalrule is different. There, for convenience, the law, in ized in the United States, have renounced their allethe absence of statutory regulation, has prescribed the giance to our government," stands upon independent general rule that where no time of payment is named grounds, and is wholly aside of the point under disby the testator, and in the absence of any intention to cussion. be inferred from the will itself, such general legacies If the limitation announced by Mr. Justice Field in shall be raised and satisfied out of the testator's per- the United States Circuit Court of the Ninth Circuit sonal estate at the expiration of one year next after had been less narrow than stated, the court would his death, from which period, if the executor omits to have been obliged to hold that Look Tin Sing was not pay the principal, the legatees will be entitled to in- a citizen of the United States. It seems to the underterest, though actual payment within that time may sigued, aside from judicial sanction, that the children be impracticable. 2 Roper Leg. 1215. This rule was of aliens born in the United States are, to use the founded on the principle that the assent of the executor language of Judge Cooley in another connection, to the legacy was essential before the title of the lega- “subject to the jurisdiction of the United States only tee to the legacy became complete or perfect, for with- in a much qualified sense;" until they take some steps out such assent the legatee had no authority to take submitting themselves to the jurisdiction. Nowadays possession of his legacy. The assent was required of among the majority of States, citizenship is derived the executor, because the whole personal property of from personal, and not from local origin. And it the testator devolved upon the executor. The civil should not seem unreasonable to expect that that conlaw fixed for the purpose a year from the testator's struction would be favored by the courts which would death as the time when the testator's assent is pre- reconcile rather than antagonize the almost contemsumed, and when the legacy is payable. This rule has poraneous provisions of the fourteenth amendment quite generally been adopted by the English courts. and the act of Congress of April 9, 1866, in respect to Wood y. Penoyre, 13 Ves. 326; Barrington v. Tris- citizenship by birth. It may be that the words of Mr. tram, 6 id. 315; (lire v (live, Kay, 600; Bristow v. Justice Miller in the Slaughter House case are susBristow, 5 Beav. 289; Child v. Elsworth, 2 De Gex, M. ceptible of a construction different from that attribu& G. 679; Gibson v. Bott, 7 Ves. 96; Pearson v. Pear- ted to them by the undersigned. But if so, many of son, 1 Schoales & L. 10. In the American courts in the your readers will doubtless sympathize with me, in absence of statutes regulating the subject, legacies are preferring to receive such announcement from the disregarded as due and payable at the end of the year tinguished jurist rather than from Mr. George from the death of the testator. But in those States O'Doherty. where statutes or the judge of probate allows a year in The legislation of the United States declared that wbich to pay debts and legacies, such legacies are not children of American parentage born abroad are citidue until the end of a year from granting letters testa- zens of the United States. Is it consistent to hold, at mentary, and the interest should be computed from the same time, that children of aliens born in this that time. Jones v. Ward, 10 Yerg. 161; Stephenson country are ipso facto citizens of the United States ? V. Axson, 1 Bailey Eq. 274; Hustou's Appeal, 9 Watts, In modern days, and among civilized States, citizen473; Graybill v. Warren, 4 Ga. 528; Beal v. Crafton, 5 ship, as dependent upon birth, has been held to be de. id. 301; Bradner v. Faulkuer, 12 N. Y. 472; Cooke v. rived from political rather than from territorial sources. Meeker, 36 id. 15. In this state the time within which Construing the first section of the fourteenth the debts and legacies are to be paid is usually limited amendment, the Supreme Court of the United States by the probate court, in the first instance, to one year say, in the case of Elk v. Wilkins, decided at this term, from granting letters testamentary. Such would un- and in the words of Mr. Justice Gray, announcing the doubtedly be the time when the legacy would be paya. decision of a majority of the court: “This section ble if the estate had been closed in the ordinary course contemplates two sources of citizenship, and two of administration. Wheeler v. Hathaway. Opinion sources only: birth and naturalization. The persons by Champlin, J. (See 30 Am. Rep. 315; 58 How. Pr. declared to be citizens are 'all persons born or natural71.-ED.)

ized in the United States, and subject to the jurisdic[Decided Sept. 23, 1884.)

tion thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but com. pletely subject to their political jurisdiction, and ow.

ing them direct and immediate allegiance.” CORRESPONDENCE.

Permit me to say in conclusion that I have no other

interest or concern in this discussion, except such as CITIZENSHIP OF CHILDREN OF ALIENS BORN IN THE

every member of the profession must feel who desires UNITED STATES.

to learn what the law actually is. Editor of the Albany Law Journal:

Yours very truly,

ALEX. PORTER MORSE. Is it not possible that Mr. George O'Doherty has

WASHINGTON, D. C., Dec. 17, 1884. been a little hasty in bis attack upon the undersigued in your issue of the 6th inst. ?

In my communication, which appeared in the JOUR- NEW BOOKS AND NEW EDITIONS. NAL, November 22d, I cited and referred to so much only of the opinions of Mr. Justice Field and Mr. Jus

AMERICAN STATESMEN. tice Miller in respect to the construction of the phrase

A Series of Biographies of Men conspicuous in the Political subject to its jurisdiction" in the first section of the

History of the United States. Edited by John T. Morse, fourteenth ameudment to the Constitution, as seemed jr. Houghton, Miflin & Co., New York.


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