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may be sustained upon the remaining executory stipulation. Trow-
bridge v. Wetherbee (Mass. 1865) 11 Allen, 361; Tinkler v. Swayne (1880)
71 Ind. 568. The court in the principal case distinguishes between a vol-
untary and compulsory separation, holding that the part within the stat-
ute must have been performed voluntarily, and that the compulsory con-
veyance under order of the lower court did not put the plaintiff in the
same position he would have been in had the defendant willingly per-
formed. The question does not seem to have been raised before. No rea-
son is apparent for the distinction. The court cites no authority which at
all supports it. In Page v. Monks (Mass. 1855) 5 Gray, 496 and Weth-
erbee v. Potter (1868) 99 Mass. 354, cited by the court as cases of volun-
tary separation, the question of the effect of a compulsory separation did
not arise.
plaintiff should be named after him, promised plaintiff's father to con-
vey forty acres of land to plaintiff. Later, C. bought a tract of forty
acres and stated that he intended it for plaintiff. No conveyance was
made and plaintiff sued to quiet his title. Held, the contract was re-
duced to certainty by the designation of the land. Daily v. Minnick
(la. 1902) 91 N. W. 913.

The case proceeds on incorrect principles. The subject matter of the
promise, though stated to be land, a thing which is necessarily specific,
is entirely uncertain, and no contract arises. Sherman v. Kitsmiller
(Pa. 1827) 17 S. & R. 45; · Pearce v. Watıs (1875) L. R. 20 Eq. 492.
The maxim “id certum est quod reddi certum potest," on which the court
relies in order to make the subsequent designation of the land effectual,
has no application, as it refers only to the clearing up of ambiguities by
extrinsic evidence, Owen v. I homas (1834) 3 My.& K. 353, or, according
to some courts, where a subsidiary term of the contract is to be fixed by
future agreement of the parties. Alabama G. S. R. Co. v. South & N.
A. R. Co. (1887) 84 Ala. 570, 581. None of these cases has gone as
far as the present one, however, in the direction of confirming an at-
tempted agreement which was void for uncertainty.
OF CHARTER. A general corporation act gave power (a) to retire stock
by the purchase of certain shares at a price not above par ; (b) to issue
bonds; (c) to mortgage its property to secure bonds. The defendant
corporation, by a vote of more than the necessary two-thirds of the stock,
decided to retire two-fifths of its preferred shares by bonds or their pro-
ceeds, so far as any holder of preferred stock should desire. An amend-
ment of the general corporation act, adopted after the incorporation of
the defendant, gave express power to do this. A stockholder sued to
enjoin the retirement of the stock. Held, the retirement by bonds was
authorized under the original act by the power to retire by purchase and
the power to issue bonds; it did not work a preferential distribution of
the capital stock among some of the shareholders to the exclusion of
others, because all could benefit if they chose ; and the amendatory act
was constitutional, being neither special nor an interference with vested
rights. Berger v. U. S. Steel Corporation (N. J. 1902) 53 Atl. 68.

The general incorporation statute of a state reserved the right to alter, amend or appeal. Held, such reservation is a part of the contract of every stockholder, and an amendatory act authorizing a change in the relation of the stockholders to the corporation is not unconstitutional as impairing the obligation of contracts. Venner v. U. S. Steel Corporation (C. C., S. D. N. Y. 1902) 116 Fed. 1012.

Though the cases are of general interest on account of the defendant, no new principles are involved. Criminal Law-Double JEOPARDY. The defendant uttered at the same time and to the same person a forged note and a forged mortgage purporting to secure it. On indictment for uttering the note he pleaded a previous conviction for uttering the mortgage. Held, the uttering of the note and mortgage constituted but one criminal act, and conviction on

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the first indictment barred prosecution on the second. State v. Moore (Minn. 1902) 90 N. W. 787.

The case follows the trend of authority. Where one physical act or a series of acts so closely connected as to amount to but one transaction produces several injuries of the same criminal nature against the same person, or even against different persons, only one punishment will be inflicted ; as where several articles are stolen at the same time, Jackson v. State (1860) 14 Ind. 327 ; where the same shot kills two people, Clem v. State (1873) 42 İnd. 420; where, as in the principal case, several forged instruments are uttered at the same time, State v. Egglesht (1875) 41 la. 574. But contra, People v. Majors (1884) 65 Cal. 138 ; Commonwealth v. Butterick (1868) 100 Mass. 1. These cases rest on the principle that for one criminal volition there should be but one punishment. They are fairly within the spirit of the rule as to double jeopardy, but are not within the ordinary test. In the principle case, for example, the facts to support the first indictment would not support the second. CRIMINAL LAW – ExtradiTION – FugitivE FROM JUSTICE - Review ON Habeas Corpus. The relator in habeas corpus was held under an extradition warrant of the governor of New York, issued on the requisition of the governor of Tennessee. It was admitted that he had not been present in the demanding State on the dates stated in the indictment. Held, (1) mere constructive presence in the demanding State at the time of the alleg=d commission of the crime was not sufficient to render him a fugitive from justice, and extraditable; (2) the governor's warrant was reviewable. People ex. rel. Corkran v. Hyatt (1902) 172 N. Y. 176.

Even though the relator had been in the demanding State subsequent to the crime, he was not a fugitive, the court holds, if he did not depart therefrom to avoid prosecution; thus distinguishing Adams v. People (1848) 1 N. Y. 173. It is well settled that the accused must have been actually present in the demanding State. Ex parte Smith (1842) 3 McLean 121; In re Mohr (1883) 73 Ala. 503. As the governor of a State does not act as a United States officer, a State court may review this warrant. Robb v. Connolly (1884) 111 U. S. 624. The warrant itself is prima facie evidence that it is justified. Ex parte. Reggel (1885) 114 U. S. 642; Roberts v. Reilly (1885) 116 U. S. 80. But the identity of the accused may be reviewed. N. Y. Code Crim. Proc. $ 827. Absolute proof that the accused was not a fugitive from justice will rebut the presumption of the warrant. In re Mohr (1883) 73 Ala. 503 ; Hartman v. Aveline (1878) 63 Ind. 344; People v. Liscomb (1875) 60 N. Y. $59. His guilt or innocence of the crime charged, however, is not reviewable. In re Clark (1832) 9 Wend. 212; Terlinden v. Ames (1901) 184 U. S. 270. In Cook v. Hart (1892) 146 U. S. 183, it was held that the question of whether the governor's warrant was conclusive was for the courts of each State to decide. EQUITY_JURISDICTION OF A FEDERAL Court to SET ASIDE A WILL BY FORCE OF A STATE STATUTE. Where a State enactment gave to courts of equity jurisdiction to set aside the probate of wills for fraud or duress, it was held, that an original bill thereunder could be maintained in a federal court, there being present the essentials of jurisdiction by the United States courts. Williams v. Crabb (C. C. A., 7th Circ. 1902) 117 Fed. 193; Wart v. Wart (C. C., N. D. Ia. 1902) 117 Fed. 766. See Notes, P. 47. EVIDENCE-ADMISSIONS. The defendant's horse and trap were in charge of a friend, who so negligently managed the horse that it ran away and injured the plaintiff. To prove that this friend was, in this, the defendant's servant, the plaintiff offered evidence that the day after the occurrence the defendant called upon the plaintiff's daughter, expressed regret that it was his horse that had done the damage, and offered to pay the expenses if she would remove her father from the hospital, where he then was. Held, it was error, in default of better evidence, not to nonsuit the plaintiff. Powell v. McGlynn, (1902) 2 Ir. 154.

The court's view that this offer was perfectly consistent with a motive merely humane, is supported by Sias v. Lighting Co. (1901) 73 Vt. 35, where the employment of a nurse to attend the plaintiff, who was the defendant's employee, after the accident, was held to be no admission of liability. In Í homas v. Morgan (1835) 2 C. M. & R. 496, the exclusion of a somewhat stronger declaration was held not enough to upset a verdict. The obscurity of the report of Ilidge v. Goodwin (1831) 5 C. & P. 190, makes the ruling of TINDAL, C. J., meaningless. Sayers v. Walsh (1848) 12 Ir. L. R. 434, is distinguishable from the principal case, and, moreover, is contra to a decision by LORD ELLENBOROUGH. Beck v. Dyson (1815) 4 Camp. 197. Evidence—EXPERT TESTIMONY-HANDWRITING. A handwriting expert was permitted to testify with regard to the cancellation of a will that, in his opinion, testator's signature and a series of perpendicular marks drawn across it with pen and ink nearly ten years after the execution of the will, were not written by the same hand. Held, such evidence was inadmissible. Matter of Hopkins (1902) 172 N. Y. 360. See Notes, p. 42. EVIDENCE-PAROL Evidence to Show CONDITIONAL LiabilITY ON A PromISSORY NOTE In an action on a promissory note, between the original parties, the defendant offered evidence of an understanding, when the note was given, that she was not to be liable except in a certain event, which had not occurred. Held, admission was error. Jamestown Busaness College v. Allen (1902) 172 N. Y. 201.

The case illustrates the important legal results that may flow from what would seem a trifling difference of facts. If the note was delivered conditionally, that is, if it was not to be considered delivered unless a certain event occurred, parol evidence would be admissible to show the condition was never fulfilled; in other words, that the writing had never gone into effect as the contract. Robertson v. Rowell (1893) 158 Mass. 94; Blezitt v. Boorum (1894) 42 N. Y. 357; Pattle v. Horibrook, [1897) I Ch. 25. A dissenting opinion took this view. But if the delivery was absolute, no parol evidence could be given to show that the obligation of the contract was conditional, because it would vary a writing which had gone into effect. Van Syckel v. Dalrymple (1880) 32 N. J. Eq. 233; Van Etten v. Howell (1894) 40 Neb. 850. Difference of opinion is to be expected on the facts, as the parties themselves, unless lawyers, would hardly distinguish between a conditional delivery and a condition merely in the contract as delivered. Beard v. Boylan (1890) 59 Conn. 181, is a parallel case decided by a divided court in the same way. INSURANCE-CONSTRUCTION OF CONDITIONS IN Policy. A clause of a fire insurance policy provided : “ This entire policy, unless otherwise provided by agreementindorsed hereon or added hereto, shall be void * if mechanics be employed in building, altering or repairing the within described premises for more than fifteen days at any one time.” Held, the clause was valid ; and where the plaintiff employed mechanics for more than the agreed period and without the consent of the defendants, such act vitiated the policy, even though the work done did not exceed reasonable repairs. German Ins. Co. et al. v. Hearne (C. C. A., 3d Circ. 1902) 117 Fed. 289.

The court distinguishes this clause from that in the earlier forms of the fire policy, which were unqualified as to time, and accordingly made it necessary for the courts, in order to give effect to the intent of the parties, to leave to the jury the question of whether nly such repairing had been done as was reasonable and did not increase the risk. May, Insurance (4th ed.), $ 240 ; James v. Insurance Co. (1874) 4 Cliff. 272. Therefore, as the objection to the old form is obviated, it seems better to give effect to the intention as expressed, than to leave the question of reasonableness to the jury. LANDLORD AND TENANT—IMPLIED COVENANT FOR Quiet ENJOYMENT. The plaintiff was evicted from a leasehold where the tenancy was created by the use of the words “ agrees to let," and brought an action for a breach of an implied covenant for quiet enjoyment. Held, a covenant for quiet enjoyment does not depend upon the use of any particular words, but is


implied from the existence of the relation of landlord and tenant. BuddScott v. Daniell, (1902] 2 K. B. 351. See Notes, p. 43. MASTER AND SERVANT-Fellow SERVANTS. A laborer assisting in making an excavation was sleeping, while his "shift" was off duty, in a tent near the work, a lodging which he received as part compensation for his services. He was injured owing to the negligence of one of the workmen on duty, in not giving him warning of a blast. Held, the fellowservant doctrine had no application to exonerate the defendant, inasmuch as, at the time of the accident, the plaintiff was not a fellow servant of the other servants. Orman v. Salvo (C. C. A., 8th Circ., 1902) 117 Fed. 233. See Notes, p. 49. MUNICIPAL CORPORATIONS-LIABILITY FOR STREETS-DEFECTIVE Plan. The plaintiff was injured by a drain hole in a gutter, constructed according to plans approved by the municipality but shown to be dangerous to passers-by. Held, the city cannot escape liability on the ground that the defect was part of the original plan of construction. Stone v. City of Seattle (Wash. 1902) 70 Pac. 249.

The decision accords with the more approved doctrine of municipal liability. Urquhart v. City of Ogdensburg (1883). 91 N. Y. 67, lends considerable support to the opposing view. There judgment was given for the city on the ground that the adoption and approval of plans are judicial acts, while in regard to its streets a municipality is answerable only for ministerial acts. The decision is based largely on Lansing v. Toolan (1877) 37 Mich. 152 ; but erroneously so, for in Michigan there is no implied responsibility for unsafe streets. The soundness of the case at issue depends upon the answer given to the question as to whether the principle that actionable negligence cannot be predicated of the plan itself should be carried to far as to exempt from liability if that plan actually leaves the streets in an unsafe condition. Principle should answer in the negative. 2 Dillon on Munic. Corp. (4th ed.) $ 1024, note. NEGOTIABLE PAPER—IMPUTED NOTICE OF DISHONOR—SAME PERSON ActING AS SECRETARY OF Two COMPANIES. The A company drew a bill of exchange on the B company and indorsed the bill to the C company. The bill was dishonored. 'No express notice of dishonor was given by the C company to the A company. The same person was secretary of both the A and B companies, and, in his capacity as secretary of the latter, knew of the dishonor. Held, notice of dishonor could not be imputed to the A company, since the secretary was under no duty to communicate it. In re Fenwick, Stobart, and Co., (1902) 1 Ch. 507.

The combination of circumstances in the principal case appears novel ; but the decision may be supported on reasoning of In re Marseilles Extension Railway Co. (1871) L. R. 7 Ch. 161, and In re Hampshire Land, Co., (1896] 2 Ch. 743. A different rule was laid down in The Distilled Spirits (1870) 11 Wall. 356, and cases following it. Where the giving of notice would constitute a breach of confidential relations, the correctness of the rule is universally admitted. The English decision is to be preferred, because notice should be imputed only as to those facts, a knowledge of which has been gained within the scope of the agency. REAL PROPERTY-COVENANTS RUNNING WITH THE LAND. A partnership leased land from a railroad company and covenanted to save the lessor harmless from all liability for damage by fire. The firm continued in possession after the expiration of the lease and was later reorganized through the retirement of one partner. The new firm insured its property on the premises by a policy which was to be void if the insured had any contract to exempt any person from liability for fire. Held, the covenant to indemnify the railroad company ran with the land so as to bind the new firm and become a defence to an action on the policy. Kennedy v. Iowa State Ins. Co. (Ia. 1902) 91 N. W. 831.

The case is interesting as an extreme application of the doctrine as to covenants running with the land. Railway Co. v. McClure (1899) 9 N.

Dak. 73, holding that the benefit of such a covenant passes with the reversion, is the only decision directly in point. The precedents here citedsuch as covenants by the lessee to insure; Vernon v. Smith (1821) 5 B. & Ald. 1: Masury v. Southworth (1859) 9 Ohio St. 11, 340; by the lessor to compensate for improvements, Ecke v. Fetzer (1886) 65 Wis. 55, or not to carry on a certain trade, Norman v. Wells (1837) 17 Wend. 136, 151,- do not justify the conclusion reached, as in all of them the covenants, if not directly benefitting the land, were made for the advantage of landlord or tenant as possessors of an interest therein. Here the evident purpose of the covenant was to indemnify the company not in its capacity of landlord, but as the operator of the railroad adjoining the premises, and it should have been regarded as a mere collateral promise." As the possibility of a covenant's running with the land depends wholly on its nature, the intention of the parties and the use of the word "assigns" were immaterial. REAL PROPERTY_EQUITABLE E ASEMENTS—Quit Claim Deeds. A deed of land from the plaintiff to the defendant contained a covenant restricting the use of the land. Subsequently, owing to a dispute over the title to premises of which this lot had been part, the plaintiff gave the defendant à quitclaim deed of the whole parcel. Held, the equitable easement created by the restrictive covenant was released. Uhlein v. Mathews (1902) 172 N. Y. 154.

The point seems to be new. Restrictive covenants are frequently spoken of as easements, Beals v. Case (1884) 138 Mass. 140, but this language has been

criticised. De Gray v.Monmouth Beach Club House Co. (1892) 50 N. J. Eq. 329, 339. Even to call them equitable easements does not intimate that they are interests in land in the technical sense. In New Hampshire, it is true, restrictions must be created by deed, Tibbetts v. *Tibbetts (1890) 66 N. H. 360, and an early New York case held them void under the statute of frauds, unless in writing. Wolfe v. Frost (1846) 1 Sandf. Ch. 72. But later New York cases have paid no attention to this requirement. Tallmadge v. East River Bank (1862) 26 N. Y. 105 ; Lewis v. Gollner (1891) 129 N. Y. 227. On the other hand, a restrictive agreement has been held a conveyance of real estate within the New York recording acts, and not entitled to record unless properly acknowledged. Bradley v. Walker (1893) 138 N. Y. 291. And the existence of a restriction is a breach of a covenant against encumbrances. Green v. Creighton (1861) 7 R. I. 1; Locke v. Hale (1895) 165 Mass. 20. RECEIVERS—LIABILITY FOR Rent. Among the assets of which a receiver was ordered to take charge was a leasehold estate. To the lessor's demands for rent the receiver returned evasive replies, until finally he offered to surrender the premises to the lessor on certain conditions. The leasehold was not included in the receiver's sale ordered by the court. Thereafter, on intervention by the landlord, it was held, the receiver was liable for rent from the date of his offer above stated to the date of the decree, according to the terms of the lease, and the receiver must forthwith surrender possession of the premises to the lessor. Dayton Hyd. Co. v. Felsenthal (C. C. A., 6th Circ. 1902) 116 Fed. 961. See Notes, P. 53. SURETYSHIP-CONTRACT OF INDEMNITY-JUDGMENT. The plaintiff signed a bond as surety, and the defendant orally promised to repay him any sum which he might be obliged to pay as surety.” Judgment was rendered against the surety. Held, the indemnitor, when sued, might show that the judgment was not warranted, the plaintiff having a good defense. Gorman v. Williams (la. 1902) 91 N. W. 819.

The real question to be determined in the case of a promise to indem. nify is, what losses or liabilities the promise was intended by the parties to cover. It may be a promise generally to save harmless from a liability, or a promise to indemnify against a judgment. In the first class of cases the indemnitor is entitled to notice of the suit and an opportunity to defend; if he is not notified, the person indemnified may still recover, but the judgment is only prima facie evidence of a liability. Bridgeport

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