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Peck (1810) 6 Cranch, 87, applies also to the jurisdiction over city ordinances, Dill. Mun. Corp. (4th ed.) $ 311, yet an exception to this application has grown up of late years. Dill. ibid. $8311-312. The tendency now is to limit the rule of Fletcher v. Peck to ordinances passed in the exercise of the police power and for other purposes of government, and to exclude from its protection grants of franchises and contracts. Davis v. The Mayor, etc. (1853) i Duer. 451 ; State v. Gas Co. (1868) 18 Oh. St. 262; Gravel Co. v. New Orleans (1893) 45 La. Ann. 911. Under the statutes of New York allowing “ tax-payers' actions”, there is no doubt of the jurisdiction. Weston v. Syracuse (1899) 158 N. Y. 274. In Davis v. The Mayor, supra, the board of aldermen was enjoined from the passage of an ordinance. NEGOTIABLE INSTRUMENTS-PRESENTMENT OF CHECK THROUGH CLEARING HOUSE. Held, where the payee receives a check in the place where the bank on which it is drawn is located, in the absence of special circumstances he must present it, in order to hold the drawer, not later than the day following its receipt ; and this, even though the business usage of the community is to have checks collected through a clearing house. Edmisten v. Her polsheimer (Neb. 1902) 92 N. W. 138.

The first part of the decision is settled law, where it is customary for the payee to make a personal presentation. Daniel, Negot. Instr. $ 1590, and cases cited. And it has been so held where the clearing house system is used. Holmes v. Roe (1886) 62 Mich. 199. But this rule is based on the earlier rule that presentation must be made within a reasonable time. Chitty, Bills of Exchange, 403. Where, therefore, the clearing house system is the business usage of the community, the delays attendant upon such usage should be taken into account. Lour v. fox (1895). 171 Pa. St. 68. A recent English case, Edelstein Schuler, (1902) 2 K. B. 144, well points out how the law of negotiable paper must conform itself to business usage and change with the varying circumstances of commerce. The Negotiable Instruments Law (S 322 of the New York Statute) merely requires a reasonable time, and in defining reasonable time provides (š 4) that regard be had to business usage. PARTNERSHIP-PROPERTY-SHARES IN JOINT-STOCK AssoCIATION. Interests in land are exempt from transfer taxes by N. Y. Laws 1891. C. 215, $1. Forty-six of the one hundred shares in the New York Times Association, a joint-stock association, had been devised, and in estimating their value in order to impose the transfer tax the appraiser had taken into account the value of the Times building. Held, this was not error, for shares in a joint-stock association are personal property, although the property of the association is real estate. Matter of Jones (1902) 172 N. Y. 575, reversing 69 App. Div. 237.

The decision is believed to be correct. See 2 COLUMBIA LAW REVIEW, 403, where the decision of the lower court is commented upon. PARTNERSHIP-Rights in EQUITY OF Person NOMINATED for MEMBERSHIP ACCORDING TO POWER IN PARTNERSHIP AGREEMENT. Articles of partnership for a definite period gave to one partner the right to nominate a son into the firm. The son duly presented himself, but the other members refused to receive him. Held, upon a bill by the nominating partner, joining the son and the dissenting partners as defendants, that equity, while not decreeing specific performance, would administer in behalf of the son the remedies usually afforded to partners, and would order execution of a partnership deed recognizing the son as a member of the firm. Byrne v. Reid, (1902) 2 Ch. 735. See Notes, p. 108. PERSONAL PROPERTY—“ Possibility ON A Possibility.” A marriage settlement transferred personalty in trust for husband and wife for life, then for their children or any such issue, born in the lifetime of the original beneficiaries, as they should appoint. Held, an appointment to children for life with remainder to grandchildren born in the lifetime of


the original beneficiaries, was good. The rule against a “ possibility on a possibility” does not apply to limitations of personal property. In re Bowles, (1902] 2 Ch. 650.

The point seems never before to have been squarely decided. In Whitby v. Mitchell (1890) 44 Ch. Div. 85. the Court of Appeal held that the modern rule against perpetuities did not supersede the old rule against a possibility on a possibility," as to limitations of real property In the principal case, the court cites a dictum in Routledge v. Dorril (1794) 2 Ves. Jr. 357, to the effect, in a case substantially similar, that, while an appointment to grandchildren unborn at the grantor's death was void, as violating the rule against perpetuities, it would be valid if confined to issue living at the grantor's death. See Robert v. West (1854) 15 Ga. 122, at 142, accord. PLEADING AND PRACTICE-LUNATIC NOT ADJUDGED INSANE-RIGHT OF Next FRIEND TO SUE. The plaintiff obtained an order to file a bill in the name of a lunatic who had not been adjudged insane, and had no conser

After the bill was filed the lunatic appeared by an attorney, and moved to dismiss on the ground that she was a competent person. Held, a lunatic may sue by a next friend, and the court is not ousted of its jurisdiction by the motion of the incompetent, but may then inquire into his competency. Isle v. Cranby (111. 1902) 64 N. E. 1065.

In the absence of statutory prohibition a lunatic not adjudged insane is permitted to sue in his own name by a proper person appointed or recognized by the court as the “ next friend.' 16 Am. E Eng. Enc. 600; Gray v. Park (1892) 155 Mass. 433. The question then raised relates to the procedure the court should adopt in this peculiar situation of the parties. The sole issue is the competency of the lunatic. This should usually be determined by a jury, but in certain cases it may be determined by the court. Howard v. Howard (1888) 87 Ky. 616; Pyott v. Pyott (1901) 191 Ill. 280. PLEADING AND PRACTICE-SERVICE ON FOREIGN CORPORATION. A statute required foreign insurance companies to designate an officer for service of process by a stipulation, filed with the insurance commissioner, to be “ irrevocable so long as any liability of a company remained outstanding in the State." Held, the company could 'not revoke the designation as to one who insured while it was in force. Magoffin v. Mutual Reserve Life Ass'n (Minn. 1902) 91 N. W. 1115

The court's assertion of jurisdiction, based on the statute, in an action in personam against a non-resident, not voluntarily appearing, is contrary to the United States Supreme Court decisions. Þennoyer v. Neff (1877) 95 U. S. 714; St. Clair v. Cox (1882) 106 U. S. 350. But the defendant had continued to collect premiums, and it is held that the collection of premiums upon insurance effected prior to the exclusion or withdrawal of the company from the State is a sufficient transaction of business to continue the designation for service, made under a statute, in actions in personam. Connecticut Mutual Life Ins. Co. v. Spratley (1899) 172 U. S. 602. The provision of the statute is treated as a condition of doing business within the State, and not as a contract. The power of the State to impose such conditions is defined in Hooper v. California (1894) 155 U. S. 648. Quasi CONTRACTS_RECOVERY OF LOAN ULTRA VIRES—INTEREST. A building and loan association, unauthorized by its charter, received money as a deposit from one of its members, agreeing to pay six per cent. interest. Held, the depositor could recover in quasi contract for money had and received, with interest only from the time when demand was made for the payment of the principal. Brennan v. Gallagher (III. 1902) 65 N. E. 227.

As to the interest, this seems, on principle, to be wrong. When an innocent defendant receives money by mistake the cause of action arises and interest begins to run when he discovers the mistake or when restitution is demanded by the plaintiff. But here the money was not paid by the plaintiff to discharge a supposed obligation. The defendant cor

poration borrowed it and agreed to pay interest for its use. It had actually used the money for its own benefit. Furthermore, it was constructively in default from the beginning, for the officers of a corporation are presumed to know its charter, and hence, in this case, to know they were acting ultra vires. There is little authority on the subject, but this conclusion is supported by Dill v. Wareham (1844) 7 Met. 438 ; Leather Mans's Bank v. Merchants' Bank (1888) 128 U. S. 26; Keener on Quasi Contracts, p. 146. REAL PROPERTY-WATERS-UNDERGROUND WATER FLOWING IN DEFINED BUT UNKNOWN CHANNELS. The plaintiffs were the owners of certain mills on a stream of which one of the principal feeders was a spring arising on the defendant's land. By sinking shafts nearby the defendants had materially diminished the flow of the spring. The plaintiffs alleged that the waters issuing from the spring previous to their emergence flowed in a well-defined and ascertainable channel under the surface. The assertion rested on scientific inference, and the course of the channel was unknown. Held, there are no rights in underground water when the course of its channel is unknown. Bradford Corporation v. Ferrand (1 702) 2 Ch. 655. See Notes, p. 109. TORTs-LIABILITY OF AN AGENT TO Third PERSONS FOR NONFEASANCE. The defendant was an agent authorized to keep a building in repair. He had undertaken the duty, and had complete control. Through his failure to repair the railing of a veranda the plaintiff was injured. Held, an agent who undertakes the responsibility of keeping premises in repair owes a duty to so keep them, not merely to his principal, but also to third persons, and is liable to such third persons for injuries resulting from his nonfeasance. Lough v. Davis (Wash. 1902) 70 Pac. 491. See Notes,

p. 116.

Trusts—Gift Mortis Causa-DELIVERY. A, thinking he was about to die, told his son to pay A's wife, who was present, the amount of a debt owing by his son to him. Held, by CARLAND, J., there was a good gift mortis causa; by SANBORN, J., there was a good assignment of a chose in action. THAYER, J., dissented from both propositions. Castle v. Per. sons (C. C. A., 8th Circ. 1902) 117 Fed. 835.

Upon the question of assignment, the judges drew different inferences in regard to the intention. Upon the question of gift mortis causa, the dissenting opinion is the sounder. Delivery, actual or constructive, is essential to a gift mortis causa. Irons v. Smallpiece (1819) 2 B. & Ald. 551. A chose in action may be the subject of such a gift if it is a written instrument. Snellgrove v. Bailey. (1744) 3 Atk. 214; Chase v. Redding (1859) 13 Gray, 418. But in the principal case there was nothing capable of delivery. WILLS, INCORPORATION BY REFERENCE-EFFECT OF CODICIL. The testator bequeathed certain articles “ to such of my friends as I may designate in the book or memorandum which will be found with this will." No memorandum was in existence at the time the will was executed; but the testator made one a few years later. Thereafter he executed a codicil, in which, after some dispositions not affecting the foregoing bequest, he stated that in all other respects he contirmed his will. Held, the memo. randum was not incorporated into the will. In the goods of Smart, (1902)

A paper or document, in order to be incorporated into a will, must both be referred to therein as then existing, and in fact exist, when the will is executed. If only the latter requirement is unfulfilled, the defect is cured if a codicil is made subsequent to the drawing up of the paper, since the will is regarded as speaking as of the date of the codicil, at which time the paper does exist. In the goods of Truro (1866) L. R. I P. & D. 201. If, however, the language of the will fails to describe the document as existing, a general confirmatory codicil is evidently of no avail. In the goods of Reid (1868) 38 L. J. P. & M. 1. The present case comes within this rule.

P. 238.

Wills—MISTAKE-PROBATE. Under an erroneous impression that the testatrix had only an undivided moiety of some property, whereas in fact she possessed the entire interest, her solicitor drew the will in a certain way, and in that form it was executed. The testatrix, however, had not read the will before signing it. Held, probate would be granted with the erroneous words stricken out. Briscoe v. Baillie Hamilton, [1902] P. 234.

The rule is clear in England that if the will was neither read to the testator, nor read by him, before execution, mistake may be shown in the probate court. Morrell v. Morrell (1882) 7 P. D. 68; In the goods of Boehm, (1891) P. 247. But dispute has arisen whether, if the will was read, there is a conclusive presumption against mistake. Sir J. P. WILDE held affirmatively in Guardhouse v. Blackburn (1866) L. R. 1 P. & D. 109, while Lord Cairns denied the soundness of this ruling, obiter, in Fulton V. Andrew (1875) L. R. 7 H. L. 448. Later English cases seem to follow Guardhouse v. Blackburn. Harter v. Harter (1873) L. R. 3 P. & D. II; In the goods of Chilcott, (1897] P. 223. While there are few probate cases in America, it has been said that a probate court may reject mistaken clauses. Sherwood v. Sherwood (1878) 45 Wis. 357. Some courts have held that equity may reform mistakes. Wood v. White (1850) 32 Me. 340; Whiteman v. Whiteman (1898) 152 Ind. 263. But this is against principle as the substituted portions have never been formally executed, Newburgh v. Newburgh (1820) 5 Madd. 364, and the weight of authority is against it. Avery v. Chappell (1826) 6 Conn. 270; Goode v. Goode (1856) 22 Mo. 518; Sherwood v. Sherwood, supra.


A TREATISE ON THE LAW OF PRIVATE CORPORATIONS. By Henry Osborn Taylor. Fifth Edition. New York: The Banks Law Publishing Company. 1902. pp. xiii 969.

To cover the field of the law of private corporations in a single volume is the task undertaken in this book, and, while the work is not exhaustive, the principal topics of the law of business corporations are treated. Perhaps there is too much pretension to logical accuracy, rendering the treatise somewhat scholastic. The studied effort of the author is so marked that the reader is apt to be lost in verbal distinctions. That the author's purpose was to treat the subject scientifically, free from prejudice of preconceived notions, is plain; in this he has not entirely succeeded, though he has invariably sought for the substance of the legal relationships involved, and has in most instances carefully thought through the rules laid down.

The book is a pleasing relief from the sort of text which, differing slightly from a digest, gives a mere synopsis of the adjudged cases with little effort to discriminate or reconcile. Nor has the author evolved the rules stated from his inner consciousness, but has kept close to the cases and painstakingly endeavored to demonstrate the correctness of his pronounced convictions.

Like Mr. Morawetz the author considers the conception of a corporation as a legal person of little value, though the colloquial and inelegant language of the fourth edition on this point is eliminated. The author gives as meanings for the term corporations, first, “The sum of legal relations subsisting in respect to the corporate enterprise"; and second, “The organic body of shareholders whose acts cause the operation of the rules of law in the constitution.” The latter meaning seems to be the choice of the author and it has vitally affected his treatment of the subject particularly in relation to ultra vires. But does not this definition itself involve the notion of a corporation as a separate entity? The word organic either adds nothing or means that the corporation has its own structural being separate and distinct from the collection of individual shareholders. The vagueness of thought resulting from this definition of a corporation makes it well nigh impossible for the author to point out any vital distinctions between corporations, joint stock associations and partnerships, so that the author dismisses this subject with the statement that this is little more than a question of mediaeval nomenclature. It is true that the cases on which he relies hold that a corporation may be responsible for the acts of all its stockholders, but the judgment of the court in such case is a dissolution of the separate entity, of the creature apart from its members.

There is no difficulty in the conception of an artificial person created by law. That has been and is the common legal view of a

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