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party having made a declaration of trust, the burden of proof is on him thereafter to show that there had been no consideration for it, or that it was void for other causes. By the terms of a written instrument, upon the sale of certain property, a portion of the proceeds of such sale were to inure to the beneficiary. In sucb a case, whether the payment was made in cash or shares of stock was immaterial. The trustee, having parted with the property, was bound to account to the beneficiary for the proceeds. Where there is a failure of suitable trustees to perform a trust, either from accident, or from the refusal of the old trustees to act, or from their original or supervenient incapacity to act, or from any other cause, courts of equity will appoint new trustees. Ellison v. Ellison, Ves. 663; Lake v. De Lambert, 4 id. 592; Hibbard v. Lamb, Amb. 309; 2 Madd. Pr. Ch. 133; Com. Dig.“ Chancery,' 4 W.7. No trustee can be more unsuitable than one who not only refuses to act, but denies the trust. Irvine v. Dunham. Opinion by Woods, J. [Decided April 14, 1884.]
UNITED STATES CIRCUIT AND DISTRICT
gation, on the part of the county, to deliver the bonds, which was not discharged by the repealing statute relied on. This decision involved no question of Federal law, and is not reviewable here. Board of Supervisors of Santa Cruz v. Santa Cruz Railroad Co. Opinion by Waite, C. J. (Decided April 14, 1884.]
INSURANCE-LIFE-CONSTRUCTION OF CONDITION3STIPULATION-PRACTICE – GENERAL EXCEPTION CHARGE.-(1) The principle laid down in National Bank v. Insurance Co., 95 U. S. 678, reaffirmed that wben a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself. See also Grace v. American Ins. Co., 109 U. S. 282. These rules of interpretation, equally applicable in cases of life insurance, forbid the conclusion that the answers to the questions in the application constituted warranties, to be literally and exactly fulfilled, as distinguished from representations which must be substantially performed in all matters material to the risk, that is, in matters. which are of the essence of the contract. (2) An applicant for life insurance was required to state, categorically, whether he had ever been afflicted with certain specified diseases. He answered that he had not. Upon an examiuation of the several clauses of the application, in connection with the policy, it was held to be reasouably clear that the company required, as a condition precedent to a valid contract, nothing more than that the insured would observe good faith toward it, and make full, direct, and honest auswers to all questions, without evasion or fraud, and without suppression, misrepresentation, or concealment of facts with which the company ought to be made acquainted. (3) In the absence of explicit stipulations requiring such an interpretation, it should not be inferred that the insured took a life policy with the understanding that it should be void, if at any time in the past, he was, whether conscious of the fact or not, afflicted with the diseases, or any one of them, specified in the questions propounded by the company. Such a construction of the contract should be avoided, unless clearly demanded by the established rules governing the interpretation of written instruments. (4) Going to the jury upon one of several defeuses does not preclude the defendant, at a subsequent trial, from insisting upon other defenses, involving the merits, which have not been withdrawn of record or abandoned in pursuance of an agreement with the opposite side. (5) A judgment will not be reversed upon a general exception to the refusal of the court to grant a series of instructions, presented as one request, because there bappens to be in the series some which ought to have been given. Indianapolis, etc., R. Co. v. Horst, 93 U. S. 295; Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler. 2 id. 338; Johnson v. Jones, 1 Black. 209; BeaFer v. Taylor, 93 U. S. 46; Beckwith v. Bean, 98 id. 284. Youlor v. Life Ins. Co. Opinion by Harlan, J. (Decided April 14, 1884. ]
TRUST-BURDEN OF PROOF-“ PROCEEDS OF SALE" -KEMOVAL AND APPOINTMENT OF NEW TRUSTEE.-A
REMOVAL OF CAUSE-JURISDICTION OF CIRCUIT--SEPARATE CONTROVERSY.-One of several attaching creditors joined the others as defendants in a suit to set aside certain judgments obtained against the debtor by confession. Held,that they were necessary parties to the controversy between the plaintiff and his debtor; and that as they were citizens of the same State with the debtor the cause could not be removed to theUnited States court. Cir. Ct., N. D. Ill. November, 1883. Pol. lok v. Loucheim. Opinion by Drummond, J.
JOINT STOCK COMPANY--FRAUD IN ORGANIZATIONRIGHTS OF PURCHASERS.-Where the organizers of a joint stock company put in as a part of the capital stock certain patent rights, and by fraudulent puffing iuduced others to purchase the stock at fictitious rates, held, that whether the purchasers could set aside the sales or not they were not entitled to gain control of the company and pursue their remedy against the fraudulent directors in the corporate name. Cir. Ct., Dist. Mass. February, 1884. Flagler Engraving Machine Co. v. Flagler. Opinion by Lowell, J.
RECEIVER-NEGLIGENCE OF EMPLOYEES-NOT LIABLE.-A receiver is not personally liable for the torts of his employees; it is only when he commits the wrong himself that he is personally liable. Were he so liable few men would take the responsibility of such a trust; it is only when he himself commits the wrong that he is held personally liable. The proceeding against him as receiver for the wrongs of his employees is in the nature of a proceeding in rem, and renders the property in his hands as such liable for compensation for such injuries. Meara's Adm'r v. Holbrook, 20 Ohio St. 137; Klem v. Jewett, 11 C. E. Green, 474; Jordan v. Wells, 3 Woods, 5:27; Kemuedy v. Indianapolis & C. R. Co., 11 Cent. Law J. 89. The railroad company is not liable for the injuries complained of in the bill for the reason that they were committed while it was out of possession of the property and had no control over it. This conclusion is sustained by principle and authority. Ohio, etc., R. C., v. Davis, 23 Ind. 560; Bell v. Indianapolis, etc., R. Co., 53 id. 57; Metz v. Buffalo, etc., R. Co., 58 N. Y. 61; Rogers v. Mobile & 0. R. Co., 17 Cent. L. J. 290; Meara's Adm'r V. Holbrook, supra. Cir. Ct., S. D. Miss. 1881. Davis v. Duncan. Opinion by Hill, J.
SHIP AND SHIPPING-COLLISION-PRESUMPTIONFAILURE TO RING BELL.--Where a steamer in motion
* Appearing in 19 Federal Reporter.
collides with a vessel properly anchored the presump- fense the judgment debtor must invoke the aid of the tion of fault is upon the former. The burden of proof court upou its equity side. It was claimed in Mills r. in such cases is upon the vessel under way to show by a Duryee, 7 Cranch, 481, that such judgments should be clear preponderance of proof that the collision occurred treated as foreign judgments, and that nil debet was a without fault on her part or through some fault of the good plea in a suit upon such a judgment. But tbe other vessel. The Batavier, 2 Wm. Rob. 407; The court denied the validity of the plea, alleging that it John Adams, 1 Cliff. 404, 413; The City of New York, rendered the above clause of the Constitution unim8 Blatchf. 194. There being no positive rule nor set- portant aud illusory; that the record of the judgment tled usage for a vessel at anchor to ring a bell in thick duly authenticated was conclusive upon the parties, snow, held, such a vessel is not in fault for not ringing and that nul tiel record was the only proper plea. The a bell during a thick squall of snow of a few minutes' counsel for the defendant in his brief justified his plea duration only. See The Bay State, 1 Abb. Adm. 235, by the authority of tbe case of Bank of Australasia v. 241, note. Where the ferryboat R., running from Hun- Nias, 16 Q. B. 717, where it was held that a plea that ter's Point to Seventh street, New York, her usual the judgment on which the suit was brought was obcourse being near where the bark S. was anchored off tained by fraud would be good; but he did uot advert Nineteenth street, was overtakey after leaving Hun- to the reason why it was good. The reason is dister's Point by a sudden squall of thick snow, and on closed by Lord Chancellor Selborne in Ochsenbein v. passing Twenty-third street was embarrassed by one of Papalier, L. R., 8 Ch. App. Cas. 695, which was an apthe ferry-boats of the Twenty-third street line crossing plication for an injunction to stay a suit at law upon her bows, compelling her to stop and back, and while judgment to which the defendant had put in the plea so doing, and being headed well toward the New York of fraud. He refused to interfere upon the ground shore, she drifted down with a strong tide and rau that the court at law had jurisdiction, the Parliament afoul of the S. at anchor, the position of the latter being having passed statutes permitting such equitable depreviously well known to the R., held, that the ferry. fenses to be pleaded in suits at law. The obvious inboat was in fault for not keeping further away from ference from the opinion is that in the absence of the known station of tbe S.; held also tbat under the
such legislation the plea would not be allowed. If the circumstances it was not probable that the ringing of defendant wishes to impeach the judgment for fraud a bell would have been of any service to the R. in or covin in obtaining it, he must invoke the aid of the avoiding the collision, and that the R. accordingly was court upon the equity side, whose peculiar province it alone answerable. McCready v. Goldsmith, 18 How. is to grant relief in cases of this sort. See Glover v. 89, 92. Dist. Ct., S. D. N. Y. January, 1884.
The Hedges, Saxt. 119; Power's Ex'rs v. Butler's Adm'r, 3 Rockuway. Opinion by Brown, J.
Green, Ch. 465; Moore v. Gamble, 1 Stockt. 246; Tom. AND SHIPPING SHIP - MASTER'S AUTHORITY
kins v. Tomkins, 3 id. 512. TO
Cir. Ct., D. N. J. Janu SELL-NOTICE TO OWNER.–The master has no au- ary 20, 1884. Allison v. Chapman. Opinion by Nixon, thority to sell damaged cargo in a foreign port without
J. notice to the owner or shipper when there is abundant SHIP AND SHIPPING-LIEN - WAIVER- ESTOPPEL. time and means for communication with him,
--(1) A barge bas presumptively a lien for her whether the object be to obtain money for the repair of
freight upon the goods laden on board, which is not the ship, or merely the sale of damaged or perishable waived by any provisions of the contract of hire not goods. Acatos v. Burns, 7 Exch. Div. 282; The Aus
absolutely incompatible with the enforcement of the tralasian, etc., v. Morse, L. R., 4 P. C. 2.2; Cammell v. lien at the time of delivery. The Bird of Paradise, 5 Sewell, 3 Hurl. & N. 634; The Gratitudine, 3 C. Rob.
Wall, 545, 562, 563; Bulkley v. Naumkeag, etc., Co., 24 240; The Hamburg, 2 Marit. Law Cas. 1; Atlantic Mut. How. 386, 393; The Yankee Blade, 19 id. 82: 1 Pars. Ins. Co. v. Hutb, 16 Ch. Div. 474. These cases all rest Shipp. & Adm. 174, and notes; The Hermitage, 4 upon oue common principle, that the master, by vir
Blatchf. 474; The Eddy, 5 Wall. 441, 494. See also Rug. tue of his general authority, does not have any right to gles v. Buckner, 1 Paine, 363; Raymond v. Tyson, 17 sell or hypothecate either the ship or the cargo; that How. 53, 61. (2) A contract to take on board wire cable his authority in these respects rests upon necessity in New York to be laid in the Erie caual, freight, the solely and upon the particular emergencies of the occa- hire of the barge at a per diem rate, to be paid as soon sion; and that this authority is therefore limited by
as the cable is laid, is not incompatible with such a the nature and extent of the necessity. If the owner lien, and with proceedings to euforce it at once in deis at hand, and can be easily communicated with, the
fault of payment as agreed. (3) Where wire cable was master must advise the owner of the facts, and take laden on board a barge by the manufacturer, pursuant his directions; and where such directions may be ob
to an agreement between the shipper and the owner tained there is neither necessity nor authority nor of the barge, of which the manufacturer was chargejustification for the master to assume to sell or to hy- able with knowledge, held, that the barge had a lien pothecate without notice. These principles I uuder- upon the cable for her freight pursuant to the constand to be substantially adopted by the Supreme tract, and that such lien was not affected by the priCourt in the case of The Julia Blake, 107 U. S. 418; 2
vate arrangement between the manufacturer and shipSup. Ct. Rep. 191, affirming the judgment of the Dis
per, not known to the libellant, that the cable should trict and Circuit Courts of this district; 16 Blatchf.
be paid for on delivery, nor by the fact that the manu472. See also The Amelie, 6 Wall. 18, 27; The C. M.
facturers, upon completing the lading of the cable, kept Titus, ñ Fed. Rep. 826, 831; Butler v. Murray, 30 N. Y. the shore end fast upon their premises so as not to per88, 99; The Joshua Barker, Abb. Adm. 215; Pope v. mit the departure of the barge with the cable Nickerson, 3 Story, 465; Myers v. Baymore, 10 Peun.
aboard. Held, also that the cable, as between the manuSt. 114; Hall v. Franklin, etc., Ins. Co., 9 Pick. 466;
facturers and the libellant, must be regarded as laden Pike v. Balch, 38 Me. 302. Dist. Ct., S. D. N. Y.
on account of the libellant's contract, and as the goods February, 1884. Astsrup v. Lewy. Opinion by Brown, of the shipper, and that the manufacturers were es. J.
topped from denying this as respects the libellant, al. JUDGMENT ANOTHER STATE - OBTAINED BY though as between the manufacturers and the shipper FRAUD-RELIEF FROM WHEN SUED ON.- In an action the title may not have passed. Faith v. East Ind. Co., of debt in one State upon a judgment obtained in
4 Barn. & Ald. 630. The same priuciple of estoppel as another, a plea that the judgment was obtained by regards the lieu of material-men upon vessels on their fraud is no defense. To avail himself of such a de equipment, without regard to the actual title, bas
been applied in the case of The May Queen, 1 Spr. 588; The St. Jago de Cuba, 9 Wheat. 409, 418; and The Sarab Starr, 1 Spr. 453. (4) As the barge under contract with the shipper would, as against bim, be entitled to a lien on the goods during the time the vessel was detained by reason of his not fulfilling his contract with the libellant, held, that the lien existed to the same extent as against the manufacturers, who, for their own benefit, had held the vessel fast by the shore end of the cable until they removed the cable under the stipulation given in this suit. The Hermitage, 4 Blatchf. 474; The Hyperion's Cargo, 2 Low. 93; Sprague v. West, Abb. Adm. 548. Dist. Ct., S. D. N. Y. January, 1884. Blowers v. One Wire Rope Cable. Opinion by Brown, J.
NEGLIGENCE — PASSENGER ON FERRY — CONTRIBUTORY NEGLIGENCE.-Where in a libel for damages for the killing of a husband and fatber the ferry steamer inflicting the injury was in fault, but the deceased had violated rules of the managers, forbidding passengers to step over guard-chains and passivg off to the wharf before the boat was drawn up and made fast at the landing, in doing which deceased received fatal injuries, but in doing so only did wbat men and boys habitually and constantly did on the ferry, without restraint or remonstrance from the management, held, that this was not such contributory negligence on the part of deceased as to exonerate the claimants from responsibility in damages, the managers of the ferry baring, by neglecting to enforce their rules, held out to passengers that there was no practical danger iu violating them, and thereby put the deceased off his guard as to the danger attending the practice, which was habitually permitted. The case turns upon the question: “Was any thing presented to arrest his attention and to warn him of the fate which overtook him ?” because it is a principle of the law of contributory negligence tbat a carrier is not necessarily excused because the injured person knew that some danger existed tbrough the carrier's neglect, and voluntarily incurred the danger. Clayards v. Dethick, 12 Q. B. 439. Where, for instance, a traveller crossed a bridge which he knew to be somewhat unsafe, but which its managers had not closed, nor warned the people not to pass, and the traveller's horse fell through and was killed, it was held that he was not in fault, and damages were recovered. Humphreys v. Armstrong Co., 56 Penn. St. 204. So it was held that the plaintiff might recover wbere a passevger train was moving very slowly by, but did not stop at a depot where it should have stopped, and a passenger was injured by leaping off, notwithstanding the usual warning that passengers must not get off the train while in motion, the slow gait of the train seeming to invite the passenger to get off. Filer v. N. Y. Cent. R. Co., 49 N. Y. 47. These cases sufficiently illustrate the principle of the law of contributory degligence, that though the passenger must do what a prudent person should do to avoid accident in any particular circumstance in which he may stand, yet if he has reason to infer from the conduct and policy of the carrier that no practical danger would attend an act, though there might be some risk, and if he is thereby thrown off his guard respecting it, the carrier is liable. Dist. Ct., E. D. Va. February 24, 1884. Manhassett. Opinion by Hughes, J. (See 29 Alb. L. J. 216.)
SHIP AND SHIPPING- MASTER GENCY -- DISCRETION - INTOXICATION OF MASTER ABANDONMENT OF TOW-GENERAL AVERAGE.-- (1) Where the propriety of the general course to be taken by a tow from one port to another depends largely upon the season of the year, the state of the weather, the velocity of the wind, the probability of a storm, and the proximity of harbors of refuge, the choice of
a route is usually within the discretion of the master of the tug; and if he has exercised reasonable judgment and skill in his selection he will not be held in fault, though the court may be of opinion that the disaster which followed would not have occurred if he had taken another route. He can only be chargeable with negligence when he takes a course which good seamanship would deem unauthorized and reckless.
The owner of a vessel does not engage for the infallibility of the master, nor that be shall do in an emergency precisely what, after the event, others may think would have been the best.' The Hornet (Lawrence v. Minturn) 17 How. 100; The Star of Hope, 9 Wall. 230; The W. E. Gladwish, 17 Blatchf. 77, 82, 83; The Mohawk, 7 Ben. 139; The Clematis, 1 Brown Adm. 499. (2) A like rule obtains with reference to the conduct of the master in refusing to cross the lake or turn back to the port of departure in face of a storm. (3) The intoxication of a master upon duty ought not to be inferred from slight circumstances equally consistent with a different theory, or from the equivocal testimony of one or two dissatisfied seamen, when flatly contradicted by the remainder of the crew. (4) The abandonment and ultimate loss of a tow of barges to save the tug from destruction, and the subsequeut arrival of the tug in a port of safety, does not vest in the owners of the barges a claim against the tug for contribution in general average. Says Judge Dillon, in his work upon Municipal Corp., vol. 2, $ 756: “The rights of private property, sacred as the law regards them, are yet subordinate to the higher demands of the public welfare. Salus populi suprema est lex. Upon this principle, in cases of immineut and urgent public necessity, any individual or municipal officer may raze or demolish houses and other combustible structures in a city or compact town, to prevent the spreading of a destructive conflagration. This he may do independently of statute, and without responsibility to the owner for the damages he thereby sustains." It was said, so long ago as the reign of Edward IV, that “by common law every man may come upon my land for the defense of the realm.' In the Saltpetre case, 12 Coke, 13, it is said that “for the Commonwealth a man shall suffer damage; as for saving of a city or towi, a house shall be plucked down if the next be on fire; and the suburbs of a city in time of war, for the common safety, shall be plucked down, and a thing for the Commonwealth every man may do without being liable to an action.” In Mouse's case, id. 63, certain passengers upon a ferryboat from Gravesend to London cast overboard a hogshead of wine and other ponderous things to save the boat from being swamped in a violent tempest. It was held that as this was a case of necessity for the saving of the lives of the passengers, the defendant, being a passenger, was justified in casting the hogshead of the plaintiff out of the barge. See also Governor, etc., v. Meredith, 4 T. R. 794; Respublica v. Sparhawk, 1 Dall. 357 ; Taylor v. Plymouth, 8 Metc. 462; Mayor, etc., y. Lord, 17 Wend. 285; S. C., 18 id. 126. A like principle was applied in the Roman law, wherein it is said, that if by the force of the winds, a ship is driven against the cables of an another, and the sailors cut these cables, no action will lie, if the ship cannot be extricated in any other way. Dist Ct., E. D. Mich., July 9, 1883.
The James P. Donaldson. Opinion by Brown, J.
ACTING IN EMER
PATENT-PREVIOUS DESCRIPTION.-An inventor is not barred from obtaining a patent because his invention has been described, though not claimed, in a prior patent to the same inventor. Battin v. Taggert, 17 How.74; Graham v. McCormick, 11 Fed. Rep. 859. Cir. Ct., D. Vermont, Jan. 28, 1884. Vermont Farm Machine Co. v. Marble. Opinion by Wheeler, J.
MICHIGAN SUPREME COURT ABSTRACT. not converse or discuss with one party in the absence
of the other upon the subject under consideration, and STATUTE OF FRAUDS-DEBT OF ANOTHER-EVIDENCE in another case the furnishing of liquor by a petitioner AS TO CREDIT.-(1) An agreement by one person to pay
for a highway to the commissioners, while engaged in for goods furnished to another is not a collateral their duties, was held an abuse for which the court promise to pay the debt or answer the default of would ordinarily set aside a report in favor of the another, within the meaning of the statute of frauds. petitioner without inquiring how far the commission(2) The court cannot direct a verdict against a party
ers were affected by it. Newport Highway, 48 N. H. whose evidence, though inconsistent, tends in any part 433. In this case an affidavit of one of the commisto sustain his side of the issue. (3) Goods charged sioners was filed in support of the motion to set aside upon the vendor's books to the person to whom they are
the report. This was 'proper. The commissioners are delivered may nevertheless be shown to have been sold not like a common-law jury, and their owu affidavits upon the credit of another. Foster v. Persch, 68 N.Y. may be used to impeach their finding, or show that 400; Hagen v. Bearden, 4 Sneed, 48; Walker v. Rich- they proceeded upou a wrong principle in the ascerards, 41 N. H. 388; Swift v. Pierce, 13 Allen, 136; Bar- tainment of damages. The rule on which they act is rett v. McHugh, 128 Mass. 165; Champion v. Doty, 31
a fact, and may be shown as any other fact. Canal Wis. 190; Ruggles v. Gatton, 50 Ill. 412. Larsen v. Bank v. Albany, 9 Wend. 244; New Jersey R. & T. Jensen. Opinion by Champlin, J. (See 46 Am. Rep. Co. v. Suydam, 17 N. J. L. 25. All parties are -Ed.]
entitled to the intelligent judgment of the commis[Decided April 23, 1884.)
sioners upon the appraisement of damages, and any
agreement in advance which shall leave the amount as CONTRACT
" ON TRIAL ACCEPTANCE. the result of chance cannot be upheld. In the case of Where by written contract plaintiff agreed to fur- Kansas City, etc , R. Co. v. Campbell, 62 Mo. 585, the vish a windmill pump, and to make it work properly, three commissioners put down the amount respectively if after a trial of six months the defendant should ac- determined on by them, and divided the sum by three, cept it, and the contract closed with a stipulation that and returned the quotient as the result, and the find. if the windmill should be erected and should do the ing was set aside by the Supreme Court. See also to work proposed the defendant should pay a specified
the same effect Donner v. Palmer, 23 Cal. 40; Ruble r. sum, held, that defendant was not liable until he ac
McDonald, 7 Iowa, 90; Birchard v. Booth, 4 Wis. 67; cepted the apparatus. Cole v. Homer Com. Coun.
Denton v. Lewis, 15 Iowa, 301; St. Martin v. Des. Opinion by Campbell, J. (See 30 Eng. R. 816.-ED.]
noyer, 1 Minn. 156 (Gil. 131); Forbes v. Howard, 4 R.I. [Decided April 23, 1884.)
364. Marquette H. &0. R. Co. v. Houghton. Opinion
by Champlin, J. NUISANCE OPENINGS IN STREET PERMISSION. Permission given by the common council of a village
[Decided April 9, 1884.) to a property holder to make certain openings in the street for the improvement of his preunises, rebuts any PENNSYLVANIA SUPREME COURT presumption that the partial appropriation of the street
ABSTRACT. is a nuisance per se. This was decided in People v. Carpenter, 1 Mich. 273, and has never been doubted in this
CONTRACT-ENTIRE-SPLITTING CAUSES OF ACTIONState. (2) If the permission of the village government was a mere license, which the government of the city consists of au entire lot of standing timber of a specified
JUDGMENT FOR PART, BAR.–Where the subject of a sale (afterward chartered) was at liberty to revoke, it does
quality, and the price to be paid is not apportioned to not follow that the property holder is a wrong.doer in
any item or part thereof, the contract is entire. Lucesco maintaining his structure. The common council of a
Oil Co. v. Brewer, 66 Penn. St. Where a contract is city is not the judge of what is criminal and what is
entire and not divisible, but one action can be mainnot. Everett v. City of Marquette. Opinion by Cooley, tained thereon. Shenk v. Mingle, 13 S. & R. 29; Cor C. J.
bett v. Evans, 25 Penu, St. 310; Logan v. Caffrey, 31 [Decided April 23, 1884.]
id. 196. Where the consideration of an entire conEMINENT DOMAIN-MOTION TO SET ASIDE REPORT - tract is a cash payment, and a promise to give negotiaIMPEACHING REPORT-AFFIDAVIT OF COMMISSION - ble notes at three, six, nine and twelve mouths, a reThe probate court bas authority to set aside the re- fusal to give such notes after cutting part of the timport of the commissioners for good causes showi). If ber is a breach for whith the vendor can sue and rethe amount awarded is unreasonable, and indicates cover damages for the whole sum for which the notes that it was the result of prejudice or partiality, or that were to have been given. Where a suit has been the commissioners must have acted upon a wrong brought under the conditions above stated on the basis of estimating the damages, it is a good cause for ground of refusal to give the notes, and under the insetting aside the report. Chapman v. Groves, 8 Blackf. struction of the judge the jury found a verdict for the 308. Evidence as to the value of the property con- amount of the one note which would have been then demned, and the resulting damages, while admissible, due, and judgment is entered on the same, such judg. is not controlling; they are the opinions of witnesses ment is a bar to a subsequent suit on the same consimply, and should not ordinarily have greater weight tract. Unfortunately for the plaintiff, his first suit than the official report of the commissioners who have was not brought for an iustalment of purchase-money considered all the evidence. Eastern R. Co. v. Con- payable at a certain date; it was for the purchasecord, etc., R. Co., 47 N. H. 108. Numerous courts money on an entire contract, and the judgment for a bave held that the reports of commissioners may be small fraction of his demand discharged the obligaimpeached for partiality, bias, prejudice or inatten- tion. Even where demand originally consisted of tion or unfaithfulness in the diseharge of their trust,or distinct parts, and the plaintiff chose to have it tried for error of such extraordinary character or grossness as if entire, but recovered only a part, he is barred as should furnish a just inference of the existence of from recovering the other in a second action. Hess v. such influences. Mills, Em. Dom., $ 234, and cases Heeble, 6 S. & R. 57. We conclude with tbe fiual recited in note 7. Commissioners exercise important mark of Gibson, J., in that case: “I am aware that functions and pass upon valuable rights, and should be this decision may bear hard on the justice of the cause, free from prejudice or undue influence. In Peavy v. and I regret it; but it is peculiarly the province of a Wolfborough, 37 N. H.286, it was held that they should court of error to hold the rule steady and see that the
301. (2) The refusal of the defendant to deliver the plan and deed until his charges were paid amounts to a conversion, and on trover for the same the said charges cannot be set off. Arthur v. Sylvester. Opinion by Trunkey, J. [Decided March 3, 1881.]
ILLINOIS SUPREME COURT ABSTRACT.*
JANUARY TERM, 1884.
particular equity of a case does not prevail over the law.” Alcott v. Hugus. Opinion by Trunkey, J. (See 29 Eng. R. 594. -ED.) [Decided Feb. 14, 1884.)
NOTICE-POSSESSION-CONSTRUCTIVE.- The possession of land is notice to the world of every title under which the occupant clains it, sufficient to put a purchaser or mortgagee on inquiry, unless the occupant has put a title ou record inconsistent with his possession. Since Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35, this principle has been recognized in many cases, among which are the followi:g: Billington's Lessee 5. Welsh, 5 Binny. 128-32; Sailor v. Hertzog, 4 Whart. 239; Woods v. Farmere, 7 Watts, 282-4; McCulloch v. Crowher, 5 W. & S. 427-9; Patton v. Hollidaysburg, 4 Wright, 206; Mechan v. Williams, 12 id. 238; Jamison v. Dimmick et ux., 14 Nor. 52-6; Hottenstein v. Lerch, 39 Legal Intell. 393. While the principle is differently stated in some of these cases, it is substantially the same in all. In Woods v. Farmere, supru, Gibson, C. J., speaking of the unlimited effect given by the English courts to possession as an index to title, says ** the duty of inquiring into the foundation of a notorious possession is not a grievous one, and it is soon performed. Why then should a purchaser be suffered to act on probabilities as facts, at the risk of any one but himself, when a moment's share of attention would prevent misconception or loss? The doctrine of constructive notice is undoubtedly a sharp one, but is not more so in regard to a notorious possession than it is in regard to a registry. Nor is it less reasonable, for it certainly evinces as much carelessness to purchase without having viewed the premises as it does to purchase without having searched the register.” Therefore where a party has, without authority, taken a deed to bimself of property which he purchased for another with that other's money, and such equitable owner took and retained possession, and then the holder of the legal title created a mortgage of the property, the possession of the equitable owner was sufficient to put the mortgagee on notice, and the want of authority to create the mortgage is a defense thereto on the part of such equitable owner. Rowe y. Ream. Opinion by Sterrett, J. (See 45 Am. Rep. 184, note. -ED.) [Decided March 17, 1884.)
STATCTE OF FRAUDS-DEBT OF ANOTHER.-One partper cannot bind his co-partners jointly with himself to pay the debt of another. A promise to pay a note out of money belonging to the maker in the hands of the promisor when the note falls due, and if that fund be insufficient, that the promisor would individually pay the same, is a promise to pay the debt of another within the statute of frauds. Townsend v. Long, 27 P. F. Smith, 143; Justice v. Tallman, 5 Norris, 147. Shaaber v. Bushong. Opinion per Curiam. (See 46 Am. Rep. 296.--ED.) [Decided March 17, 1884.]
BROKER-NO LIEN ON DEED-CONVERSION.-(1) A real estate broker has no lieu on a deed and plan placed in his hands for the sole purpose that he shall undertake to sell the property therein referred to for his charges and expenses in attempts to make the sale. Steadman v. Hockley, 15 M. & W. 452; Hollis v. Claridge, 4 Taunton, 807. By the common law, where a man receives from the owner an article for a purpose involving labor or expense upon such article, he may detain it until he is paid for his labor or expenses. * The distinction is that when the work is to be done on a cbattel to improve it or to increase its value, the lien attaches, but where it is merely delivered, as in this case, to make a demand upon it, no such right can be supported.” Sanderson v. Bell, 2 Compt. & M.
TAXATION-CAPITAL STOCK-PERSONAL TAX.-Capital stock of a corporation is personal property, having no ingredient of real estate, and hence a tax levied on it is clearly a personal tax, and becomes a lien on personal property only from the issue of the warrant for its collection. Saup v. Morgan. Opiniou by Walker, J.
TAXATION-PERSONAL PROPERTY-WHEN LIEN ON REAL.-A tax on personal property does not become a lien on real estate until the collector of taxes shall select for that purpose some particular tract or lots of real property, and charge the tax against the same, as above named. Belleville Nail Co. v. People, 98 Ill. 399; Ream v. Stone, 102 id. 359; Parsons v. East St. Louis Gas Light Co., 108 Ill., 380. And see Binkert v. Wabash Ry. Co., 98 id. 2206; Cooper v. Corbin, 105 id. 2:25. Carter v. Rodewald. Opiuion by Sheldon, C. J. RECEIVER APPOINTED
UNITED STATES COURT-SUED STATE COURT-PERMISSION PRESUMED-SUING ON OWN BEHALF, AND OTHERS SIMILARLY SITUATED.-(1) After the appointment of a receiver of an insolvent railway company by the United States Circuit Court, at the suit of certain bond. holders, and possession taken by such receiver, the bondholders of the company secured by deed of trust on the real estate of the company filed a bill in the Circuit Court of the State to enjoin the collection of the personal property tax of the corporation by the sale of the mortgaged property, and to enjoin the receiver from paying the same out of assets in his hands. lleld, that the fact that the property sought to be made liable for the taxes was in the possession of the United States court by the receiver could not affect the jurisdiction of the State court as to the subject. matter, and that permission to sue the receiver in the State court might be presumed from the fact of no objection being made. (2) The holder of a portion of bonds secured by deed of trust given by a railway coinpany in order to protect the mortgaged property or fund securing his and others' bonds, may file a bill in his owu behalf and in behalf of all other holders of such bonds, his interest and that of the others being identical and inseparable. Carter v. Rodewald. Opinion by Sheldon, C. J.
DEED-DELIVERY-QUESTION OF INTENT-PRESUMPTION-EVIDENCE TO REBUT.-(1) Delivery is a question of inteni, and it depends ou whether the parties at the time meant it to be a delivery to take effect presently. Where the owner of land had a written lease drawn, which was signed by the parties and left with the legsee to procure an indorsement of a guaranty for the payment of the rent and to have a duplicate drawn, it was held, this was no execution or delivery of the lease as the deed of the lessor, and could not be such until the guaranty of the rent had been obtained, and that the subsequent communication of the lessee to the lessor of the former's inability to obtain the guaranty, terminated the negotiation and the initiatory proceeding in making the lease, and that a guaranty subsequently obtained availed nothing without the assent
*To appear in 108 Illinois Reports.