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tion of the depositor, not communicated to the bank, surety cannot be deprived of it. Hence if the bank is of no importance. While the right of the bank to perinit the stock of such debtor to be sold, and its procharge the notes against the deposit is not disputed, ceeds applied to discharge a debt due to the bank by it was at the same time contended that it was under the same debtor, which originated by a note of subseno duty to do 80, and that its failure to make such ap- quent date, the surety in the first transaction will be plication did not discharge the indorser.
thereby discharged.” It is to be observed that the bank was the owner of Ramsay v. Westmoreland Bank, 2 P. & W. 163, was a the notes, and not a mere collecting agent. The differ- suit against a surety. The facts and the law of the ence is obvious. The position of the bank was this: case are sufficiently explained in the following extract It was a creditor of Mr. Young to the amount of the from the opinion of the court: “The note on whicb notes discounted; it was the debtor of Mr. Young to the suit was instituted had been drawn by William the amount of his deposit, and to that extent was in Johnson and indorsed by John Ramsey; he was then law bound to honor his checks or drafts; it held the a mere surety, and as such entitled to be favored in defendant as security on the notes by reason of his in- the law. The evidence he offered was to prove, and dorsement thereof; the deposit exceeded the notes, would have proved, that a large balance arising on the and it had the undoubted right at the close of bank- sale of real estate of William Johnson was in the hands ing hours on the 28th of August to charge the notes of the sheriff, which was subject and liable to the against the deposit. Was it bound to do so as between judgment of the bank, and would have been obtained the bank and the indorser ?
if due diligence had been used. The case then, if In order to discuss this question intelligently we proved as offered by the plaintiff in error to the court must not lose sight of the peculiar character of a bank below, would have come within the principle stated deposit. The money deposited does not, as is popu- by the present cbief justice in Com. v. Miller's Ad. larly assumed, continue to be the property of the de ministrators, 8 S. & R. 457, 'that no rule in equity was positor. It becomes the money of the bank the mo- clearer than that where a creditor bas the means of ment it is deposited. The depositor becomes the satisfaction in his hands, and chooses not to retain creditor of the bank, and as before observed, the bank them, but suffers them to pass into the hands of the is his debtor, and is in law bound to honor his drafts principal,the surety can never be called upon. Here, to to the extent of bis deposit. Foley v. Ilill, J Phillips, be sure, the bank had not the balance actually in their 399; Bank of Republic v. Millard, 10 Wall. 152; Carr bands, nor did they actually assent to its passing into v. National Security Bank, 107 Mass. 45. When the de- the hands of Johnson, but they might by using due positor becomes iudebted to the bank on one or more diligence, and by doing their duty to the surety, have accounts, and such debts are due and payable, the bank obtained it, and thus have bad satisfaction pro tanto has the right to apply any deposit he diay bave to on their judgment from the proceeds of tbe real estheir payment. This is by virtue of the right of set-off. tate of the real debtor, and it was their duty to have Where a general deposit is made by one already in- done this. The money thus obtained from the sale of debted to the bank, the latter may appropriate such real estate of Johnson, on which the bank's judgment deposit to the payment of such indebtedness. This was a lien, was actually brought into court. Johnson results from the general doctrine of the application or could not take it out of court, but the bank could bare appropriation of payments. And it may be safely as- done so, and if they did not, they must lose it, for serted that as a general rule, the former may waive the having had the means of paymeut in their power they right to make such application, and allow the depositor could not pass them by and recorer from a surety." to draw out his balance. Whero however the rights of Ramsey v. The Westmoreland Bank was approved in third parties intervene the case is sometimes different. the subsequent case of Sitgreaves v. The Bank, 13 The distinction between the liability of a bank to a Wright, 359, and the same principle has been reccustomer and to a third party is thus defined iu Morse ognized and followed in numerous later cases, includ. on Banks and Banking (2d ed.) 47: “A bank holding ing Fegley v. McDonald, supra. Is it applicable to the a note of a depositor is under no obligation to appro- case in hand? Of this we are iu no doubt. Tbe bauk priate a sum sufficient to meet it from funds on de- being indebted to Young when bis notes matured in an posit immediately upon its maturity, or indeed at any amount exceeding the notes, the latter had the clear other particular time; they may let the account run right to set off so much of his deposit as was necessary on and take the chance that they will not lose in the to meet the notes. The defendant as surety was enevd. But as toward third parties, the obligation upon titled to avail himself of Young's right. It may be ilthe bank is different, and it has been decisively and lustrated thus: If I am the bolder of A.'s note inproperly held that the neglect of the bank to make dorsed by C., and when the note matures I am insuch an appropriation of the principal debtor's funds debted to A. in an amount equal to or exceeding the would discharge the indorsers and sureties."
note, can I have the note protested and hold C. as inThe rule is well settled that “when a creditor has in dorser? It is true A.'s pote is not technically paid, his hands the means of paying his debt out of the but the right to set-off exists, and surely C. may show property of his principal debtor, and does not use it, in relief of his obligation as surety that I am really the but gives it up, the surety is discharged. It need not debtor instead of the creditor of A. If this is so bebe actually in the hands of the creditor. Jl it be within tween individuals, why is it not so between a bank his control, so that by the exercise of reasonable dili- and individuals ? gence he may have realized his pay out of it, yet vol. Further the note in controversy was payable at the untarily and by supine negligence relinquished it, the bank. An acceptance or promissory note thus payable Burety is discharged." Fegley v. McDonald, 8 Nor. is, if the party is in funds, that is, has the amount to 128; citing Com. v. Vanderslice, 8 S. & R. 452; Everly his credit, equivalent to a check; and it is in effect an v. Rice, 8 Harris, 297; Boschert v. Brown, 22 P. F. S. order or draft ou the banker in favor of the holder for 372, and other cases.
the amount of the note or acceptance. Ætna Nat. This familiar rule applies to banks as well as other | Bank v. Fourth Nat. Bank, 46 N. Y. 88. I do not un. creditors. It was held in Kuhns v. The Westmoreland derstand this principle to be disputed. The note Bank, 2 Watts, 136, where it was ruled : “ The lien therefore was a draft on the bank against the deposit which a bauk has, by virtue of the seventh section of of the maker. It was the equivalent to a pereniptory the act of 21st of March, 1814, upon the stock of its order on the bank to pay, or to speak more accurately, debtor, results for the benefit of the surety of sach to charge the notes against the deposit. And the jury debtor; and such is that resulting interest that the have found that there was no direction on the part of
sented a check to the bank, signed by B., in which he directed the balance of his account to be paid on account of his official note. The cashier refused so to apply it because of the direction be had received. Held, in an action by the bank against P.on the official note, that peither he nor B. could insist that the amount standing to B.'s credit at the maturity of the pote should be applied to the payment of the note in suit. It will be noticed that the official note did not enter into B.'s personal account, and that before B.'s check had been presented at the bank the latter bad applied his personal deposit in part payment of his personal pote which had matured. Its right to do so is apparent.
As the principles above indicated control this case, a discussion of the remaining assignments is not necessary. To avoid misapprehension, it is proper to say however that the offers of testimony enibraced in the first three assignments of error were irrelevant, and should have been excluded. The bank was a holder for value, and the facts set forth in the said offers did not constitute a defense. But the admission of the evidence under these offers did no barm, and it is settled law that for immaterial errors this court will not reverse. Nor is it essential to criticise the admission of the testimony in relation to the custom of the Reading banks to charge a note made payable at the bank against a deposit standing to the credit of the maker. Such a mode of dealing could hardly have the force of a custom considered in its legal seuse. But as a course of commercial dealing it was perhaps competent, and at most it merely showed that the banks did what they had a conceded right to do aside from any such custom or usage.
the depositor to interfere with this. It must be conceded that if the deposit had been special, or if previous to the maturity of the note, auy arrangement had been made between the depositor and the bank by wbich the bank had been forbidden to apply the money in its bands to the payment of these notes, the indorser would not be discharged. As was held in Bank v. Speight, 47 N. Y. 668: “If before the maturity of paper held by a bank against a depositor, an arrangement is made by wbich the bank agrees to hold the deposit for a specific purpose, and not to charge the note against it, the bank may be regarded as a trustee, and the deposit special. In such a case, in the absence of fraud or collusion, an indorser upon such paper has no right to require the application of the deposit toward the payment of the paper upon its maturity."
Bank of Wilkesbarre v. Legrand, 13 Week. Notes, 317, is not in conflict with this view. The precise question we are considering was not decided in that case. There Lowenstein had not sufficient funds in the bank to pay the note at the time it matured. Subsequently he made a special arrangement by which he was to continue to do business with the bank, and it was alleged the time of payment had been extended. At several times after this he had sufficient money on de. posit to pay the note. The court below subsequently entered judgment against the bank upon the ground principally that the indorser was discharged by the extension of the time,'which judgment was subsequently reversed by this court. It needs but a cursory examination of that case to see that it does not rule this.
Nor do the other cases cited by the plaintiff sustain his contention. In Bank of United States v. Carneal, 2 Pet. 543, the question was whether the indorser was discharged by a failure to make demand upon the maker. The note was payable at the bank, the demand was made there, and it was said by Justice Story: "Where a note is payable at a bank it is his (the maker's) duty to be at the bank within the usual hours of business to pay the same.'
Strong v. Foster, 84 Eng. Com. Law, 201, was not the case of an indorser, but of one of the makers of a joint and several promissory note who claimed to be a surety. It was at least doubtful whether he was a surety; his position on the note did not make him so, and there were no funds to the credit of either of the makers when the note matured. On the contrary, the balance was against them. The court held, under the circumstances of the case, that the failure of the bank to apply a subsequent deposit to the payment of the note did not discharge the defendant, and intimated the opinion it would not have discharged him even bad he been a surety.
In the National Mahaiwe Bank v. Peck, 127 Mass. 302, it was ruled that: “Where by express agreement, or by a course of dealing between a bank and one of its depositors, a certain note of the depositor is not included in the general account between them, any balance due from him to the bank when the note becomes payable is not to be applied in satisfaction of the note, eren for a benefit of a surety thereon, except at the election of the bank.” The bank had discounted for B. a note sigued by him as treasurer of a town and ivdorsed by P., the proceeds of which were to be used by B. in his official capacity. Neither the note nor its proceeds were made part of B.'s personal account with the bank. At the time that note matured the bank held the personal note of B., which would mature the next day, and which exceeded the amount then standing to the credit of B.'s personal account. As soon as the personal note matured, the president of the bank directed the cashier to apply the balance of B.'s account to the personal wote. Three days after, P. pre
COLORADO SUPREME COURT ABSTRACT.
CONSTITUTIONAL LAW-GENERAL AND SPECIAL LAW --ASSESSMENT UNDER INVALID LAW.-(1) Where a special city charter cannot be amended by a general law applicable to the whole State, so as to meet the necessities of a particular case, then a special law is authorized by the Constitution itsell, and the decision of the question as to whether or not a special law is necessary is for the Legislature, and vot for the courts. In the case of State v. Co. Ct. of Boone County, 50 Mo. 317, the court says: “But who is to decide when a general or special law will answer the best purpose ? It strikes me that the rule in reference to general or special laws is laid down as a guide for the Legislature, and the Legislature is to judge of the necessity of the particular case. The Legislature is quite as able to do this as the courts. The Legislature must in the first instance exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion? If a discretion be conceded at all, in my judgment the courts have no right to control it. It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the Constitution. When the Legislature undertakes to pass these inhibited laws it is the plain duty of the courts to declare them unconstitutional.” The above views appear to us to be both sound and applicable to the phraseology of our Constitution. They are affirmed by the subsequent cases of State v. Co. Ct. of New Madrid, 51 Mo. 83, and Hall v. Bray, id. 288. Similar views upon like constitutional provisions are announced in State v. Hitchcock, 1 Kan. 178, and Gentile v. State, 29 Ind. 409. (2) A valid assessment cannot be made under an invalid law or ordinance, and its constitutionality is to be tested not by what has been done under it, but
by what it authorizes to be done by virtue of its pro- ford, 1 Wend. 583. He may discbarge a mortgage visions. This is the doctrine of the following cases, (People v. Keyser, 28 N. Y. 226), may make an assignand many others might be cited to the same effect, but ment of a mortgage (Crouin v. Hazeltine, 3 Allen, 324), reference to them will be found in the cases cited: and this court has held that a deed made by one of Stuart v. Palmer, 74 N. Y. 183; Thomas v. Gain, 35 two or more adıinistrators was not void, and not Mich. 155; Daridson v. New Orleans, 96 U. S. 97; subject to attack in collateral proceedings. Osman v. County of San Mateo v. Southern Pac. R. Co., 8 Sawy. Traphagen, 23 Mich. 80. The following authorities 238; 13 Fed. Rep. 722. Brown v. City of Denver. may also be examined with profit in examining the Opinion by Beck, J.
question raised in this case: Bonifaut v. Greenfield, 1 [Decided April 1, 1884.)
Cro. 80: Dike v. Ricks, 4 Cro. C. 335; 1 Sugd. Pow. (6th Lond. ed.) 143, 144; Pitt v. Pelham, Ch. Cas. 178;
Wardwell v. McDowell, 31 III. 364; Clinefelter y. MICHIGAN SUPREME COURT ABSTRACT. Ayres, 16 id. 329; S. C., 20 id. 465; Conklin v. Edger
ton, 21 Wend. 430; Roseboom v. Mosher, 2 Denio. 61; LANDLORD AND TENANT-MINING LEASE-TRADE
Wills v. Cowper, 2 Ham. 1:24; Powell Devises, 196, 197; FIXTURES-RIGHT OF REMOVAL.- As between landlord Judson v. Gibbons, 5 Wend. 224. Vernor y. Coville. and tenant of a mining lease, engines and boilers Opinion by Sherwood, J. erected by the tenant on brick and stone foundations, [Decided June 25, 1884.) and bolted down solidly to the ground, and walled in
EJECTMENT-OUSTER-QUESTION OF FACT-BURDEN with brick arches; and dwellings erected by the ten
OF PROOF.-Ouster is a question of fact, which it is ant for miners to live in, standing on posts or dry
the province of the jury to determine, and the facts and stone walls piled together—where such machinery and circumstances which went to establish the ouster buildings were intended to be merely accessory to the ought, under proper instructions from the court, to be mining operations under the lease, and when there was
submitted to the jury. Taylor v. Hill, 10 Leigh (Va.), no intention in affixing them to the realty to make
457; Cummings v. Wyman, 10 Mass. 465; Purcell v. them accessory to the soil, and where they can be re
Wilson, 4 Gratt. 16; Harmon V. James, 7 Smedes moved without material disturbance to the land, are
& M. 111; Blackmore v. Gregg, 2 Watts & S. 182; Carregarded as “trade fixtures,” and may be removed at
pentier v. Mendenhall, 28 Cal. 484; Clark F. Crego, 47 or before the termination of the lease. Conrud v. Barb. 599. And the burden of proof rests upon Saginaw Mining Co. Opinion by Champlin, J.
the party alleging it. Newell v. Woodruff, 30 Conn. [Decided June 25, 1884.)
492; Van Bibber v. Ferdinand, 17 Md. 436. But when EJECTMENT-ADVERSE POSSESSION-ESTOPPEL-FOR- both parties rely upon ouster, it is incumbent on the MER SUIT.-(1) A title to land may be gained by its ad- plaintiff to prove it within the statute of limitations. verse possession for over twenty years by a party
If he introduce evidence tending to prove it within claiming under color of title. (2) Where an ejectment that period, then the burden is shifted to the defendsuit to try the title to land was determined in favor of ant to prove an actual ouster which occurred anterior a plaintiff, and after its decision the defendant con- to that period. Highston v. Burdette. Opinion by veyed the property and his grantee afterward ob- | Champlin, J. tained the possession of the land, in an action for [Decided June 25, 1884. ] ejectment against the latter's grantee, held, that he
NEGLIGENCE-CONTRIBUTORY--PERSONAL INJURY. was estopped from denying the plaintiff's title because of the former suit by his grantor. Scheetz v. Fitz.
- Where a person in crossing a railroad track was water, 5 Penn. St. 126; Melvin v. Proprietors, etc., 5
struck and injured by a passing engine which she was
facing, and which she must have seen if not acting Metc. 15; Sawyer v. Kendall, 10 ('ush. 241; Williams v. Dongan, 20 Mo. 186; St. Louis v. Gorman, 29 id.
heedlessly, held, that she was guilty of contributory 593; Shaw v. Nicholay, 30 id. 99; Holton v. Whitney, for a personal injury it is incumbent upon the plaintiff
negligence. In an action against a railroad company 30 Vt. 405; McNeely y. Langan, 22 Ohio St. 32; Nelson v. Trigg, 4 Lea, 705. Whitford v. Crooks. Opinion by but that she was in the exercise of ordinary care at the
to show not only that the defendant was negligent, Cooley, C. J.
time of the accident; and if this is not shown it is im. [Decided June 25, 1204.]
material that she was rightfully upon the defendant's WILL EXECUTORS-JOINT POWER-RENUNCIATION grounds at the time. Pzolla v. Michigan Cent. R. Co. --EXECUTION BY ONE.-When an executor acts under Opinion by Champlin, J. instructions in a will, rather than under the general (Deoided June 25, 1884.] powers accorded by statute, and it appears that the testator bad confidence in him, and intrusted much to his discretion, nothing but imperative duty can excuse a court for interfering with his acts. Where two
NEBRASKA SUPREME COURT ABSTRACT. persons are named in a will as executors, “ with full power and authority to sell and courey real estate," CORPORATION CAPITAL
ASSESSMENTS.and one of such persons renounces the trust, the other where articles of incorporation fix the amount of the may, under the provisions of section 5814 of Howell's capital stock the entire amount must be subscribed beStatutes, execute the power, and a contract executed fore a stockholder is liable to assessment for the acby him alone to sell and convey such real estate is complishment of the main object of the corporation, valid. Dyer, 23; 11 Vin. Abr. 271; Bac. Abr. D. 1; 2 unless the articles otherwise provide or there is a Williams Ex'rs, 810; Jacomb v. Harwood, 2 Ves. 267; waiver of the condition. Salem Mill-dam Co. v. Ropes, Wheeler v. Wheeler, 9 Cow. 34; Bogert v. Hertell, 46 Pick. 23; S. C., 9 id. 195; Cabot, etc., Br. Co. v. (haHill, 492, 503; Weir v. Mosher, 19 Wis. 311; Herald v. pin, 6 Cush. 53; Shurtz v. S. & T. R. Co., 9 Mich. 259; Harper, 8 Blackf. 170; Dominick v. Michael, 4 Sandr. Topeka Bridge Co. v. Cụmmings, 3 Kav. 76; Sommer374; Boughton v. Flint, 13 Hun, 206. ('o-executors and set R. (o. v. Clarke, 61 Me. 384; N. H. C. R. v. Johnco-administrators are regarded in law as but one per- son, 30 N. H. 404; P. & R. I. R. v. Preston, 36 Iowa, son, and acts done by one are deemed the acts of all 118; Fox v. Clifton, 6 Bing. 776: Pitchford v. Davis in all matters relating to the personal estate. One may Mees. & W. 2; Fry's Ex'r v. L. & B. S. R., 2 Meto. execute a valid release of a debt. Murray v. Blatch. (Ky.) 323; Estabrook v. Hotel Co., 5 Neb. 76; Boehme
1. Hotel Co., id. 80. See also Livesey v. Omaha Hotel Co., 5 Neb. 50. Hale v. Sanborn. Opinion by Maxwell, J. [Decided May 29, 1884.)
MORTGAGE-CONDITION TO SAVE HARMLESS-SURETY -DAMAGE.-When the condition of a mortgage is to save the mortgagee harmless from the payment of a debt owing by the mortgagor, for which the mortgages was surety, held, that no action could be maintaiued on the mortgage until the mortgagee has paid the debt or some portion thereof; that is, until actual damages had been sustained by him. This question was before the court in Gregory v. Hartley, 6 Neb. 356, and it was held tbat where a condition or promise is only to indemnify and save harmless a party from some consequence, 110 action can be maintained until actual damages have been sustained by the plaintiff'. Stout v. Folger, 34 Iowa, 74; Lathrop v. Atwood, 21 Conu. 117; In re Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Deuio, 321 ; Wilson v. Stilwell, 9 Ohio St. 467. The plaintiff was merely surety on the note. The debt was not his own, but that of McCoy. This principle is clearly recognized In re Negus, supra, and Douglass v. Clark, 14 Johns. 177. In the case last cited the condition of the bond was that “if the said Sylvester Clark, above bounden, shall well and truly pay off and discharge said bond, and save the said Zebulon harmless, and indemnified from the payment thereof, or any part thereof, and from all costs, damages and charges thence arising to said Zebulon, then the above-written obligation to be null and void," eto. The court say: “ Whether this plea be good or not will depend upon what is deemed the true construction of the bond. If the defendant is to be considered as undertaking to pay off and discharge the recited bond, tbe plea is bad; but if it be considered a bond of indemnity to save the plaintiff harmless from all damages by reason of the recited bond, the plea is good. 1 Saund. 117, n. We are inclined to think the good sense and sound interpretation of the bond is according to the latter construction.
This construction is much strengthened by the circumstance that it appears in the recited bond that the defendant was not the person who was to pay the duties. They were due from Rice, with whom the defendant was bound.” In Thomas v. Allen, 1 Hill, 145, it is said the bond in suit was more tbau a bond of indemnity, because it bound the defendant to pay off the plaintiff's debt, and the breach was well assigned by alleging that the obligor had not paid at the day. In that case it is said that Douglass v. Clark was silently overruled in Port v. Jackson, 17 Johns. 239. Forbes v. McCoy. Opinion by Maxwell, J. [Decided May 29, 1884.]
MENT.-(1) If a county attorney neglects or refuses to perform any act which it is his duty to perform, or corruptly performs any such duty, he forfeits his office, and may be removed therefrom by a civil action, in the nature of a proceeding in quo warranto, in the Supreme Court. (2) A civil action instituted in the manner provided in the Code of Civil Procedure for the removal of a county attorney who neglects or refuses to perform any act which it is his duty to perform, or who corruptly performs any such duty, reaches only to the possession of his office and its emol. uments. The criminal prosecution provided for in section 12 of the Prohibitory Act is au additional or cumulative remedy, and in addition to the forfeiture of office, subjects the guilty official, on conviction thereof in the District Court, to the infliction of a fine not exceeding $500. (3) Where a county attorney is charged with neglecting or refusing to perform an act which it is his duty to perform under the prohibitory law, or is charged with corruptly performing any such duty, in a civil action to remove him from office, it is not a good defense to answer that the people of his county are opposed to the prosecution of the violators of the law, and therefore in the exercise of his official discretion, he dismissed all cases of this class brought by him. (4) If a law enacted by the Legislature has not the support of public sentiment, this may be, under some circumstances, a reason for its amendment or repeal; but in a civil action brought against a county attorney to remove him from office for neglecting to perform his duties thereunder, it is not a good defense for his refusing to attempt its enforcement. State v. Foster. Opinion by Horton, C. J.
EVIDENCE-PAROL TO SHOW AGENCY.-After a written agreement is executed, it is competent to show by parol evidence that both of the contracting parties were agents for other persons, and acted as such agents in making the contract. This evidence in no way contradicts the written contract. Butler v. Kaulback, 8 Kans. 668; Wolfley v. Rising, 12 id. 535-538; Railway Co. v. Thatcher, 13 id. 564; Dykers v. Townsend, 24 N. Y. 61. Nutt v. Humphrey. Opinion by Horton, C. J.
CONSTITUTIONAL LAW-PUBLIC OFFICE-CHANGING SALARY-PROSPECTIVE STATUTE.-(1) A county office is not a contract, and the incumbent is not protected in it by the prohibition of the Federal Constitution agaiust the impairment of the obligation of contracts. A county officer has no such vested interest in the salary as will prevent the Legislature from diminishing it during his term of office. Public offices in this State are mere agencies for the benefit of the people, not contracts on their part with the officeholder for his benefit. Therefore there is no contract, express or implied, between a public officer and the State or county whose agent he is. Officeholders have no agreement or contract that they shall receive any particular compensation for the term they hold office. Their terms are fixed with the view to publio utility and convenience, and not for the purpose of granting the emoluments or salary during any fixed period to the officeholder. The Legislature may exercise its control by increasiug or diminishing the salary or emoluments of an office, except in those special cases in which the Constitution has forbidden its exercise. State Const., art. 3, § 13. Except in those special cases, the Legislature has the absolute power over the compensation of all public officers. Therefore there was no contract, express or implied, between the plaintiffs and Rush county or the State of Kansas regarding the compensation of their officers, and the plaintiffs had no property in the future compensation attached to them. Conner v. Mayor of the City of New York, 5 N. Y. 285; Farwell v. City of Rockland, 62 Me. 296; State v.
KANSAS SUPREME COURT ABSTRACT.*
JANUARY TERM, 1884.
CARRIER-BAGGAGE— LOSS.- Where the duly authorized agent of a railroad compauy receives personal property to be transported as baggage, the railroad company must account for such property as baggage, although in strict language it might not be baggage. Where personal property is received by a railroad company to be transported as baggage, and while it is in the possession of the railroad company, to be so trausported, it is lost or stoleu, held, that the railroad company is responsible to the owner thereof for its loss. Chicago, etc., Railroad Co. v. Conklin. Opinion by Valentine, J.
OFFICE AND OFFICER-FORFEITURE-CUMULATIVE REMEDY-FAILURE TO PERFORM DUTY-PUBLIC SENTI
*Appearing in 32 Kansas Reports.
Davis, 44 Mo. 129; Hyde v. State, 52 Miss. 665. (2) contract on the part of the defendant to sell and conWhere a law is enacted diminishing the salary of a vey to the plaintiff the above described land, the recounty officer during his official term, and such dimi- ceipt being indefinite and uncertain as to the consider. nution applies after the law takes effect, the law is ation, aud indefinite and uncertain in other particoprospective, and not retroactive. Harvey v. Comrs. of lars. Holmes v. Evans, 48 Miss. 247; S. C., 12 Am. Rush County. Opinion by Horton, C. J.
Rep. 372; Minturn v. Baylis, 33 Cal. 129; McGuire v. RAILROAD-KILLING STOCK-FAILURE TO FENCE.
Stevens, 2 Am. Rep. 649. Indeed such indefiniteness Where a person pastures a bull over one year old on his
and uncertainty in the contract, where the statute of own inclosed premises, through which a railroad is
frauds requires that the contract should be in writing, constructed and operated, and the railroad company
would probably defeat any action upon the contract. has not inclosed its road with a fence, as required by
Atwood v. Cobb, 26 Am. Dec. 657, 661 et seq., aud esthe provisions of the railroad stock law of 1874 (Comp.
pecially 668, 669; Reid v. Kenworthy, 25 Kans. 701; Laws of 1879, ch. 84, art. 2, pp. 784, 785), and the bull is
Patmor v. Haggard, 78 IU. 607; Riley v. Farnsworth, killed by the railroad company in the operation of its
116 Mass. 223; Jordan v. Deaton, 23 Ark. 704; Grafton road, held, that the bull was not so running at large,
v. Cummings, 99 U. S. 100. Neither can the present
action be maintained, for the reason that the transacwithin the meaning of section 38, article 5, of the act relating to stock (Comp. Laws of 1879, ch. 105), as to
tion would seem to be simply that of an agent selling prevent the owner from recovering for its value under
his principal's property to his partner, and virtually to the provisions of said railroad stock law of 1874.
himself, without the knowledge or consent of his prioAnd so held, although the railroad company may own
cipal. 1 Pars. Cont. 87; 1 Wait Act. and the strip of land upon which its track is located, and
Def. 245, 246 et seq., and cases there cited; Bain v.
Browu, 56 N. Y. 285. Also with respect to certain eswhere the animal was killed. This case iu principle
seutial elements and incidents inherent in or connected comes entirely within the principles announced in the case of the A. T. & S. F. R. Co. v. Riggs, 31 Kans. 622,
with the action of specific performance, see 3 Pome except that in this case the railroad company alleged
roy's Eq. Juris., $ 1405, and cases there cited. Fry v. that it “owned " a strip of land upon which its track
Platt. Opinion by Valentine, J. was located and where the bull was killed; while in the Riggs case the decision of the court was upon the
MINNESOTA SUPREME COURT ABSTRACT theory that the railway company simply had an easement over the plaintiff's land where its track was located and where the animal in that case was killed. DAMAGES-MALPRACTICE-LOSS OF SERVICE - MESWe do not think bowever that this difference between TAL ANXIETY.-In an action by a husband for danthe two cases will require a difference between the ages resulting to himself from injuries to his wife two decisions. The bull in the present case was
caused by the malpractice of a physician, damages for rightfully pasturing upon its owuer's premises, and it loss of service which appears necessarily to result strayed from there upon the defendant's premises
from the nature of the injury may be recovered as simply because of the neglect and wrong on the part part of the general damages, without being specially of the defendant in not inclosing its road with a law- pleaded. Damages for the mental anxiety or the inful fence. In addition to the cases above cited, see the jured feelings of a husband, father or master, if recorfollowing cases: Cressey v. Northern Railroad, 59 N. erable at all in such cases, are to be allowed by the H. 564, and cases there cited; S. C., 29 Alb. L. J. 392; jury as matter of aggravation, upon consideration of Pittsburgh, etc., R. Co. v. Smith, 38 Ohio St. 410; S. the facts and circumstances of the case, and not upon C., 13 Am. & Eng. Rid. Cases, 579; B. & M. R. Co. v. the statements of witnesses as to the amount of such Briukman, 14 Neb. 70. Gooding v. Atcheson, etc., R. damages. Stone v. Evans. Opinion by VanderCo. Opinion by Valentine, J.
burgh, J. CONTRACT— SPECIFIC PERFORMANCE -- STATUTE OF
[Decided June 30, 1884.] FRAUDS-UNCERTAINTY IN TERMS-AGENT SELLING TO NEGLIGENCE EVIDENCE - CONTRIBUTORY NEGLI. SELF.—The plaintiff, James B. Fry, alleged in his pe- GENCE-QUESTION FOR JURY.-Along and near a plantition in substance that the defendant, Alexander ing-mill, and within twenty feet of it, defendant laid Platt, owned section 1, township 25, range 14, iv Wood. a spur track for the purpose of loading and uploading sou county, Kansas, and that the defendant, through lumber, etc., at the mill. A shed extended from the his duly authorized agent, Thomas M. Fads, sold the mill proper to within four feet of the track. There same to the plaintiff for the sum of $3,200, payable as were several planers in the mill. The lumber was fed follows: $50 cash down ; $1,366.66% on the execution into tho mill on the side way from the track, aud and delivery to the plaintiff of a good and sufficient passed through the planers at right angles and toward warrauty deed for the land; and the remainder in two the track, and within a few feet of it. At each planer equal payments as follows: $1,066.66%% payable in one was employed a man who received the board as it year from the date of the delivery of the deed, and came from it, carried it across the track to be piled up $1,066.669payable in two years from the delivery of near the traok convenient for shipment, and then rethe deed; the deferred payments to be secured by turned for another board, the whole distance thus notes and mortgage on the real estate, to bear inter- traversed being very short, and his employment reest at the rate of 7 per cent per annum from date. The quiring his crossing and recrossing the track conplaintiff further alleged in his petition that he paid the stantly. The land on which the lumber was piled befirst payment of $50. On the trial it was shown that longed to the defendant. The defendant knew of this Thomas M. Eads was the agent of the defendant for mode of conducting the business, and this use of the the sale of said land; that the plaintiff paid Eads the land and track by the mill-owner was, with its cousent $50; and that Eads executed and delivered to the and permission, express or implied. The planers made plaintiff the following receipt, to-wit: “Yates Center, 80 much noise as to prerent a person from hearing an Kans., June 13, 1883. Received of J. B. Fry $50, for approaching car. This spur track was not used for the part payment of purchase-money for section 1, town. general and regular business of the road, but only to ship 25, range 14, Woodson county, Kans. T. M. Eads, set iu such cars as were needed to be loaded or unagent for Alexander Platt." Held, that such receipt is loaded at the mill or factory, and these were not set in not such a contract in writing within the statute of at regular times, but only as occasion required, at Irauds as will authorize the specific enforcement of a / irregular intervals. On the occasion of the accident