Imágenes de páginas

State, and shall in other respects be entitled to such | board of supervisors, or if the proposed railroad is examination.

wholly within a city, by the mayor. These commissiouIf the time of clerkship served in another State, and ers shall determine whether a steam railroad is necesthe time that such applicant has practiced law after sary, and if they so determine, they may fix routes his admission in another State, including the year of which may be over, under or along streets (provided clerkship required in this state, shall not in the aggre the consent of property owners or of the general term gate equal five years, then the applicant shall only be of the Supreme Court, required by the Constitution, be licensed as an attorney, and after such time shall ag obtained), and they are then to superintend the organigregate five years, he may apply for admission to an zation of a company to build the railroad. By section examination as counselor, and be licensed as in case 36 of the chapter, it is provided that where the route of other applicants.

established by the commissioners shall coincide with VII.

the route already fixed upon by any company previ

ously formed, the company may, upon complying with Any person who has been admitted, and has prac

the terms and conditions imposed by the commissionticed three years as an attorney and counselor in the highest court of law in another State may be admitted

ers, have the same rights as a company formed under and licensed without examination. But he must pos

the act would have, and shall be entitled to construct

its railroad upon the route established by the commissess the other qualifications required by these rules and must produce a letter of recommendation from

sioners, with all the rights and with like effect, as one of the judges of the highest court of law of such

though the same had been part of the original route of other State, or furnish other satisfactory evidence of

such railroad. It also gives the commissioners power character and qualifications.

to determine the route by which any elevated railroad

already constructed and in operation, may connect VIII.

with other railroads or with specified points, and gives Not more than three months vacation shall be al to the company owning and operating such railroad lowed in any year. The time of clerkship shall be

the right to construct such connections with all the computed by the calendar year, and if the period of rights and the same effect as though they had been a clerkship shall expire during the term at which appli part of its original route. cation is made, the applicant may be admitted on any Held, that the act was not unconstitutional, either day during the term. The same period of time shall upon the ground (1) that it delegates legislative power not be duplicated for different purposes. The judges to the commissioners, or (2) that it is not a general of the Supreme Court may adopt regulations for con law and contravenes art. 3, § 18 of the Constitution, ducting the respective examinations, and may require or (3) that it is in conflict with art. 8, $ 4, of the Cona portion of either or both to be in writing.

stitution which went into effect in 1875, requiring the IX.

consent of property owners or of the general term of These rules shall take effect on the first day of Octo the Supreme Court to the laying of a steam railway in ber next.

a street, or (4) because it grants exclusive privileges or franchises to any corporation which is forbidden by

the same amendment. Ib. COURT OF APPEALS ABSTRACT.

4. Provisions contained in section 36, chap. 606, Luws CONSTITUTIONAL LAW.

of 1875, general, — The provisions contained in section

36, of chap. 606 of the Laws of 1875, are general within 1. Amendment of 1875 as to railroads in streets: does

the meaning of the Constitution, although there not affect franchises already granted : street steam rail

might be but one company which could take the beneways: non-compliance with corporate charter : waiver.

fit of them. A law conferring rights upon all existing By an amendment to the State Constitution which went

railroad or insurance companies would be general, and into effect January 1, 1875, the legislature is prohibited

any law which relates to persons or things as a class in from passing a private or local bill granting to any

general, while one which relates to particular persons corporation the right to lay down railroad tracks, or

or things of a class is special and private. People v. any exclusive privilege or franchise. Held, not to

O'Brien, 38 N. Y. 103; White v. The Utica and Syracuse prohibit a local bill to amend the charter of a corpor

Railroad Co., 14 Barb. 559; Cricket v. State, 18 Ohio ation (1) by regulating franchises, etc., previously pos

St. 9; Welker v. Potter, id. 85; Chicago, B. and Q. sessed; or (2) giving new franchises not exclusive; or

Railroad Co. v. Cutts, 4 Am. Law R. 174; McCormick (3) to waive a forfeiture of corporate rights. Matter

v. Rusch, 15 Iowa, 129; McArenwick v. Loper, 39 id. of Petition of New York Elevated Railway Company.

112; Wheeler v. Philadelphia, 77 Penn. St. 348. Opinion by Earl, J. (Folger, Andrews and Rapallo,

[Decided Sept. 18, 1877. Reported below, 7 Hun, 239.] JJ., dissented). 2. Sovereign only can enforce forfeiture of charter of

EASEMENT. corporation.— A cause of forfeiture in a corporate

What is not: what is not appurtenant to land.-P. and charter can be taken advantage of only by the sov

wife conveyed to a railroad company a strip of land, ereign, and cannot be enforced collaterally or inci

running through a farm owned by them, by a deed dentally, or in any other mode than by a direct pro

containing this reservation : “Said parties of the first ceeding.

part also to have the privilege of mowing and cultivat3. Rapid transit act: section 36, chap. 606, Laws 1875, ing the surplus ground of said strip of land not required not unconstitutional.— By Laws 1875, chap. 606, which for railroad purposes." Held, not strictly an easement, is entitled "An act to further provide for the con and not appurtenant to the remaining portion of the struction and operation of a steam railway or railways farm, so as to pass to the grantee of such remainder in the counties of the State," it is provided that upon without description or specification. Judgment below the application of fifty householders and tax payers, affirmed. Pierce v. Keator. Opinion by Church, C. J. commissioners may be appointed in counties by the [Decided Sept. 18, 1877.]


Order below modified. Tilton v. Ormsby. Opinion by Lost voucher: willful destruction of, by party.-In an Earl, J. action upon a balance of account for advances made to 2. Prima facie case sufficient to justify surrogate in defendant by the payment of drafts drawn by defend holding property.- Where in such proceedings the tesant upon plaintiff, a number of the drafts which had timony of the witnesses subpænaed shows the property been paid were not produced. As an excuse for prima facie to belong to the estate of the deceased their non-production plaintiff testified that it had been person, this entitles the executor to the security prohis custom upon settlement with his bank, where he vided for, or to the warrant of seizure speci made the drafts payable on acceptance, to destroy the [Decided Sept. 18, 1877.] vouchers received back as being of no further use.

TRUST. That in following out this custom he destroyed the 1. Action to reach surplus income of trust estate by drafts in question, and had no other intention in doing creditor of cestui que trust.-This action was brought 80. An account of the amounts of the drafts paid and by a judgment creditor after execution returned unsatthe dates was kept, and at the time plaintiff supposed isfied against the debtor and the trustees of an estate, this would be enough, as no dispute had then occurred consisting of real and personal property devised by between plaintiff and defendant. Held, that the de the will of the debtor's father to the trustees to restruction of the drafts was not such a voluntary de ceive the rents and profits of the real estate and the struction as would preclude proof of the payments income of the personalty in trust, and to pay over the made thereon by other evidence. (Blake v. Noland, 12 same to the judgment debtor during his life, to Wend. 173, distinguished.) Judgment below affirmed. reach the surplus income accrued and to accrue Steele v. Lord. Opinion by Rapallo, J.

over and above what was necessary for the support of [Decided Sept. 18, 1877.]

the judgment debtor and those dependent upon him, FACTOR.

and to have the same applied to the discharge of plainWhat constitutes person factor and not broker.-Appel tiff's judgment. Held, that as to the income of the lant Dayton caused plaintiffs to ship certain lots of su- real estate the surplus beyond what was necessary for gar to several purchasers, to whom he had sold them, the suitable support of the debtor and those dependand to forward the invoices and bills of lading to him,

ent upon him in the manner in which they have been by representing that he had contracted for the sale of accustomed to live, was applicable under 2 R. S. 729 the sugars on the terms authorized by the plaintiffs,

$ 57, to the claims of his creditor. As to the surplus and he undertook to collect the proceeds of sale from

income of the personal property, it was likewise so the purchasers and pay them over to plaintiffs. Held, | applicable, and the action was maintainable. Judgthat this was intrusting the appellant with the posses

ment below affirmed. Williams v. Thorn. Opinion sion of the sugars with authority to sell and collect the

by Rapallo, J. price, and appellant occupied the position of factor

2. Cases in which action is not maintainable.-The and not of broker, and was liable as factor. Held,

cases of Campbell v. Foster, 35 N. Y. 361; Scott v. Nevalso, that the circumstance that the sales made by

ins, 6 Duer, 672; Locke v. Mabbett, 2 Keyes, 457, where appellant were upon terms different than those rep

it was held that surplus income could not be reached resented to plaintiffs, would not affect his position.

in supplementary proceedings or by a receiver, disOrder below affirmed. Standard Manufacturing Com

tinguished and explained. Ib. pany y. Dayton et al. Opinion by Rapallo, J.

[Decided Sept. 18, 1877.] [Decided Sept. 25, 1877.]

3. Persons promoting enterprise : duties of : may not

make profit from : rights of subscribers to enterprise. PLEADING.

Four persons organized a subscription for the purchase Justification of trespass, when admission of owner

by the subscribers of certain property at the price of ship in plaintiff .- Plaintiff in his complaint alleged

$125,000, and its use in business. They headed that he was the owner of premises upon which de

the subscription, and one of their number was apfendant made an unlawful entry. Defendant by his

pointed trustee to collect the sums subscribed and pay answer justified the unlawful entry on the ground that

the same over upon the purchase. The persons named he had a right of way over the premises entered upon, the answer describing them as the “said lands of the

had themselves purchased the property at a much plaintiff.” The answer also denied the complaint

smaller price than the sum named. Held, that four "except as hereinbefore answered." Held, that the

persons occupied such a relation to the remaining subanswer admitted that plaintiff owned and possessed

scribers as precluded them from making a profit out the locus in quo, and the plaintiff was not deprived of

of the transaction, and the trustee who received the

| funds was bound to account to the subscribers for the the benefit of this admission by attempting and failing to prove that he did own and possess the same. Judg.

difference between the price actually paid by the four ment below affirmed. Potter v. Smith. Opinion by

for the property and that paid to them for the same

out of the moneys contributed by the subscribers. Andrews, J. (Allen, J., dissented.)

(See same case in former appeal, 54 N. Y. 403.) Judg[Decided Sept. 18, 1877.]

ment below affirmed. Getty v. Devlin. Opinion by SURROGATE.

Rapallo, J. 1. Proceedings for discovery of property of deceased [Decided Sept. 25, 1877.] persons, under Laws 1870, chap. 394.-- Under the provisions of Laws 1870, chap. 394, in relation to property apparently belonging to the estates of deceased indi

NOTES OF RECENT DECISIONS. viduals, in the hands of third persons, the title of the Constitutional law: restraining right of about which the investigation is had is not The general assembly under the constitution has no determined. The object of the proceedings thereupon authority to enact a law authorizing a court of equity is not to try title, but to secure the property, and the in this State to restrain any person from applying to, act does not interfere with any constitutional rights. | or petitioning, either department of the government for a right to which that person claims to be entitled. | Jurisdiction: court of general: court of special. Sup. Ct., Georgia, August 28, 1877. Northeastern R. R. | Where a court of general jurisdiction acts within the v. Morris.

scope of its general powers, its judgment will be preContract: contracts made under confederate laws. sumed to be in accordance with its jurisdiction and The State government of Virginia which existed at cannot be collaterally impeached. Where a court of Richmond during the war, and the confederate gov- general jurisdiction has conferred upon it special ernment of which it formed a part, were at least gov powers, by special statute, and such special powers are ernments de facto, and contracts arising thereunder exercised judicially, its judgment cannot be collaterare valid and will be enforced unless prohibited by the ally impeached. Where a court of general jurisdicconstitution of the State (acc. Dinwiddie Co. v. Stuart, tion has conferred upon it special powers, by a special B. & Co., 1 Va. L. J. 297). A contract made under statute, which are only exercised ministerially and the act of May 9, 1862, to furnish salt to a county, does not judicially, no presumption of jurisdiction will atnot come within the prohibition of the constitution tend its judgments, and the facts essential to the exand must be enforced (aco. Dinwiddie Co. v. Stuart, ercise of the special jurisdiction must appear on the B. & Co., supra). Sup. Ct. App., Virginia, July, 1877. face of the record. Sup. Ct. App., Virginia, July, 1877. Pulaski Co. v. Stuart (Va. L. Jour.).

Pulaski Co. v. Stuart (Va. L. Jour.). Damages : in actions for recovery of personal prop Jurisdiction: United States Circuit Court: Stockerty.-The rule of damages in actions for the recovery holder in corporation.- The United States Circuit of personal property, in Georgia, unlawfully detained, Court will not entertain a bill in equity by a non-resiis as follows: When the plaintiff is content to recover dent stockholder of a resident corporation, where it the value of the property sued for at the time of the appears that the issues raised by the bill have been conversion thereof, and proves its value at that time already adjudicated in a suit brought in the State only, he will be entitled to recover a verdict for its court between the corporation and the proper adverprecise value at the time of the conversion, and inter sary parties, and litigated there without fraud or colest thereon from that time up to the time of trial. lusion. U. S. Circ. Ct., E. D. Missouri, Sept., 1877. But if the plaintiff is not content to recover the value | Chaffin v. City of St. Louis (Cent. L. Jour.). of the property sued for at the time of the conversion Malicious prosecution : what necessary to sustain acthereof by the defendant, and introduces evidence to tion: malice : probable cause. - Iu an action for maliprove the highest value of the property sued for be cious prosecution, to warrant a verdict and judgment tween the time of the conversion and the time of trial, for damages, it must be proved on the part of the plainas he may do, then the measure of damages will be tiff: First, that the prosecution alleged in the declarasuch proven value of the property sued for, without tion has been set on foot and conducted to its terinterest thereon. Sup. Ct., Georgia, Sept. 11, 1877. mination, and that it ended in the final acquittal and Tuller v. Carter.

discharge of the plaintiff. Second, that it was instiDelivery: of deed, what constitutes.-A grantor has gated or procured by the co-operation of the defenda deed of trust prepared, conveying all of his property ant. Third, that it was without probable cause. to a trustee, named therein, to secure his creditors; the Fourth, that it was malicious. Although the allegadeed is acknowledged for recordation, and would have tion of want of probable cause in the declaration, in been recorded then, but for the war raging in the sec- actions of this kind, is negative in its character, yet it tion where the deed was executed at the time. The must be proved, or the plaintiff must fail. Probable deed is then, with the trustee's knowledge, deposited cause, in a criminal prosecution, is “the existence of with a niece of the grantor, who has other important such facts and circumstances as would excite the bepapers of his, she is told by him of its importance, and lief in a reasonable mind, acting on the facts within to take care of it, and the paper remains in her pos- the knowledge of the prosecution, that the person session until the grantor's death, when it is taken pos charged was guilty of the crime for which he was session of by the trustee, admitted to record by him, prosecuted. Both malice and the want of probable and he files a bill for the proper execution of the deed cause must concur and be proved. Malice may be inand distribution of the fund. On a cross bill filed by ferred from the want of probable cause, but the latter creditors attacking the deed, on the ground that it is can never be inferred from the plainest malice. In a void for non-delivery, held, that delivery, to the legal sense, any unlawful act which is done willfully and third person, under the circumstances, was sufficient, purposely, to the injury of another, is, as against that and the deed good. The intention of the grantor is the person, malicious. Although an action for malicious true test of what constitutes the delivery. If he ex prosecution cannot be maintained, unless the plaintiff ecutes and acknowledges a deed to be his, and either has been fully acquitted of the criminal charge, and a retains, or delivers it to a third person, though that | nolle prosequi is not sufficient; yet the plaintiff is not third person be not the agent of the grantee, it is a obliged to prove that he was acquitted by the jury good delivery in contemplation of law. Spec. Ct. promptly, without hesitation, delay or deliberation, App., Virginia, 1877. Hunt v. Brent (Va. L. Jour.). and the evidence of a juror, to show that the delibera

Evidence : parol to contradict deed.-Whilst it is tion of the jury was caused by their doubt as to the true that parol evidence is inadmissible to contradict guilt or innocence of the accused, is inadmissible. or vary the terms of a deed, yet where it is of- Sup. Ct. App., Virginia, July, 1877. Scott v. Sheelor fered for the purpose of applying the terms of the (Va. L. Jour.). deed to the subject-matter thereof, for instance, as in Partnership notes: import joint obligation only. this case, to show that the joint use of an alley be- | Partnersbip notes import at law, although it is othertween two lots of land was intended by the parties to wise in equity, a joint, and not a joint and several obbe one of the “rights, members and appurtenances” ligation. Sup. Ct., Texas, April 20, 1877. Davis v. belonging to the bargained premises, it is not inad- | Willis. missible. Sup. Ct., Georgia, Sept. 11, 1877. Kirkpat- Removal of cause: what right to, depends on.-The rick v. Brown.

| right to a removal of a case from State to Federal court, depends upon the condition of the alleged con- ered; and that the vessel was liable to B. & Co. for troversy as it appears at the time of the filing of the non-delivery to them of their proportionate share of complaint, and where the right of removal is to be the grain. U. S. Dist. Ct., E. D. Wisconsin, Sept. determined by the fact of one of the defendants be- 1877. Burkam v. Schooner Farwell (Chio. Leg. News). ing a necessary or unnecessary party, the complaint is what is to be looked to, to determine the question,

BOOK NOTICES. and it is immaterial whether such defendant in its answer, accepts or declines the issues tendered. U. S. Circ. Ct., Dist. Minnesota, August 24, 1877. Latham v. | FREEMAN ON VOID JUDICIAL SALES. Barney (N. W. L. Rep.).

Void Execution, Judicial and Probate Sales, and the legal Slander: interpretation of language : quo animo : re and equitable rights of purchasers thereat, and the con

stitutionality of special legislation validating void mote injury: rumor.- When slanderous words imput

sales, and authorizing involuntary sales in the absence ing a crime are spoken, they are to be considered in an of judicial proceedings. By A. C. Freeman, author

of treatises on "Judgments," "Executions," "Coactionable sense, unless the evidence tends to show

tenancy and Partition, etc. St. Louis : The Central that, from the circumstances of the speaking, or from Law Journal, 1877. facts known to the hearer, they were not calculated to THIS is another of the valuable monographs which impress him with the fact that a crime was charged. 1 are being issued from the press of the Central Law Proof of the speaking of slanderous words at times |

Journal. It presents in a clear, yet concise form, the not charged in the petition, is admissible for the pur entire law relating to the topic upon which it treats, pose of showing malice. It is not competent, in an ac and will be found of very great value to every practiotion of slander, to prove that the plaintiff has been ing lawyer. The work is divided into seven chapters, troubled and suffered mental anxiety because of the and contains 137 pages octavo. Its plan and scope will speaking of the words. En such an action it is not appear from the following heads, one of which is competent for plaintiff to prove that because of the treated upon in each chapter: Definitions; sales void speaking of the slanderous words, there was a rumor because the court had no authority to enter the judgin the neighborhood in reference to the charge. Sup. ment or order of sale; sales void because of errors or Ct., Iowa, Sept., 1877. Prime v. Eastwood (Cent. L. omissions subsequent to the judgment or order of Jour.).

sale; the confirmation and deed; the legal and equitaTitle to personal property: bill of lading : priority of ble rights of purchasers at void sales; the constitulien: goods in transitu.-If a bill of lading is signed | tionality of curative statutes; constitutionality of before the goods are placed on board a vessel, but upon special statutes authorizing involuntary sales. The the faith and assurance that they are to be delivered, work is well indexed, contains a table of cases cited, and afterward they are placed on board as and for the and is excellently printed. goods embraced in the bill, as against the shipper and master, the bill of lading becomes operative and effectual to pass the title of the property to a bonu fide

· WEEKS ON MINERAL LANDS. holder of the bill, by way of relation and estoppel. A Commentary on the Mining Legislation of Congress, with a Priority of lien or title does not depend on the mere

preliminary review of the repealed sections of the

Mining Act of 1866; the whole constituting a complete priority of signing one of several bills of lading. It statement of the law and practice relative to mines, is the shipment - the delivery of the property on

mining and mineral lands under United States laws, as

construed by the general land office, the secretary of board — with notice to the party, which fixes the right

the interior and the courts, from 1866 to the present

time. By Edward P. Weeks, Counselor at Law. San and vests the property. D. chartered a vessel to carry

Francisco : Sumner Whitney & Co., 1877. 16,300 bushels of wheat from Detroit to Buffalo. The

The law relating to mines and mineral lands is very master signed and delivered to D. a bill of lading for

important in several parts of the country, and that 8,000 bushels of No. 1 wheat, consigned to R. & Co., of New York. Five days later, the master signed and

governing where the mines of the precious metals exist

is almost sui generis. Instead of being, as a whole, dedelivered to D. a second bill of lading for 8,300 bushels of No. 1 wheat, consigned to B. & Co. of New York.

rived from the body of the common law, as is the oase

with most rules governing in respect to other matBoth bills of lading were by D. attached to drafts

ters or from the civil law, it is made up of acts of drawn on the respective consignees, and negotiated

congress, decisions and instructions of department through the bank, and both were duly paid. There

officers and opinions of United States attorney-genwas no wheat on board the vessel when either bill of

erals, together with a multitude of customs and usages lading was signed. Subsequent to the execution of

prevailing in the section of country where the mines the second bill, wheat was placed on board, to the

exist, derived from Spanish, Indian and various other amount of 9,300 bushels, when D. failed and was un

sources. The collection and arrangement of such a able to deliver any more wheat. There was no desig

mass of material into a systematic treatise must have nation by the shipper of any portion of the wheat as

involved considerable labor and have required, not intended to fill either bill, it being his intention to fill

only an excellent knowledge of the law itself, but a both bills. On demand of R. & Co., the masters de- faculty of selection and condensation which is not livered to them, as holders of the bill of lading earliest common. Mr. Weeks has, however, done his work in date, 8,000 bushels of the wheat, being the full well, and those of the profession who are interested amount called for by their bill, and tendered to B. & in actions relating to mines will thank him for preCo. the remaining 1,300 bushels. Held, that both bills senting, in a clear and concise form, the entire statute of lading became concurrently operative, when the and other law governing this subject. The work is exwheat was placed on board, and in the absence of any haustive, covering every point likely to arise, and appropriation of any portion of the wheat to either though the sources from which the principles enunci. bill by the shipper, the holders of the two bills were ated have not, in all instances, the authority of a court entitled to share pro rata in the wheat actually deliv- of last resort, they are such as exist and which must

exist until the mining regions are more thickly set- | rule, and contains a large number of decisions worthy tled than now. The subject has but recently been de of being permanently incorporated into American veloped, and a great share of the statements of prin case law. The decisions of the Supreme Judicial ciple therein are the production of the last ten or Court are brought down to the close of January, 1877, twelve years. It is not therefore to be supposed that which is about as late as is consistent with careful rethe treatise is as complete and accurate as would be porting. Among the cases worthy of attention we one upon a subject, the features of which had been notice these:, Jamaica Pond Aqueduct Corporation elaborated during several centuries. Yet as stating v. Chandler, p. 3. A right of way, whether acquired the law as it now exists, the book will be found a safe by grant or prescription, is not extinguished by the guide, and it is not likely the courts or other bodies habitual use by its owner of another way equally conassuming to pronounce what the law is, will change venient instead of it, unless there is an intentional many of the conclusions arrived at by the author. abandonment of the former way. Murphy v. Collins, The book deserves a wide circulation among those of p. 6. There is no presumption that the statutory law the profession needing assistance upon the subject of of another State is the same as that of this Commonwhich it treats.

wealth. Commonwealth v. Jennings, p. 47. Here there

was an objection of misnomer. The defendant was CLEMENS ON CORPORATE SECURITIES.

named “Gigger" in the indictment. It was in evi-
The Law of Corporate Securities as Decided in the Federa! -dence that proper spelling of the name was “Jiger,"
Courts. By G. C. Clemens, of the Topeka Bar. St. Louis :
W. J. Gilbert, 1877.

or “Jigr.” The court held that the question of misThe object of this book, as set forth by the author,

nomer was properly submitted to the jury. Common“is to give in systematic shape the law of municipal

wealth v. Holt, p. 61. If a man speaks of a woman securities as stated by the Federal Courts." It treats

living in a house with him as his wife, it is sufficient first upon municipal securities and secondly upon rail

proof of cohabitation in an indictment for adultery road securities. Under the first head it discusses the

with her. Wassum y. Feeney, p. 93. The fact that an following topics: Municipal powers, legislative powers,

infant served on a jury is not sufficient to warrant the conditions precedent to the issuance of bonds, sub

setting aside of the verdict, though the unsuccessful scription, the bonds and coupons, provisions for pay

party was ignorant of the fact of infancy. Warren v. ment, pleading, practice and evidence, mandamus, pro

Hodge, p. 106. An agreement to forbear to sue on a ceedings in equity, and municipal warrants. Under

debt due upon payment of part of the debt, is without the second head it treats of corporations, railroad

legal consideration and cannot be availed of by the bonds, railroad mortgages, what may be mortgaged,

debtor either by way of contract or of estoppel. Darstatutory mortgages, priority of mortgages, receivers,

ling v. Boston & Albany R. R. Co., p. 118. A horse the Circuit Courts, procedure in equity, and evidence.

escaped from his pasture into the highway and went An appendix contains the chancery rules of the Circuit

upon the railroad track through a place where the Courts. The author intimates in the preface, that the railroad company was legally bound to maintain a work, though small, is comprehensive, and the con cattle guard, but did not. Held, that the horse was a tents above mentioned indicate that it attempts to trespasser and the company were not liable for his becover a great deal of ground. Precisely what connec- ing killed by the cars, unless it was wantonly done. tion there is between the rules governing practice and

Wellington V. Jackson, p. 157. One who knowing the procedure in the Federal Courts and the law of cor. signature to a promissory note to be forged and inporate securities, we cannot conceive. We agree with

tending to be bound by it, acknowledges it as his own, him that a small but comprehensive book, carefully

is bound by it just as if it had been originally signed written, may require more labor than is necessary to by his authority. Cobb v. Fisher, p. 169. A writing compile a massive one. But a volume, large or small,

not under seal, signed by an owner of land, purportshould comprehend only the subject it treats upon.

ing to convey the right of flowing the same and to reThe book also professes to set forth the law as decided

lease all claims for damages therefor, does not bind in the Federal Courts. The author says, however, he the land or estop a subsequent grantee to recover damhas felt it his duty to criticise judicial opinions freely, ages for the flowing thereof in the future. Crossman on the ground that an argument, though uttered by

v. City of Lynn, p. 301. A maid servant, without fault the chief-justice of the United States, may be falla on her part, was prevented from returning from her cious. We would suggest that a criticism upon a judi | mother's house to her employer's on Saturday night. cial opinion is also likely to be fallacious, and whether

The employer used his horse on Sunday to bring her 80 or not, the decision of the court determines the law, to his house from her mother's, her help being reand elementary writers are not justified in too free quired on that day to prepare food needed by the criticism upon such decisions. The volume is well family. Held, that the use of the horse was necessary printed and bound, and contains a fair index and table and the town liable for an injury to the horse from a of cases cited.

defect in the highway. Low v. Elwell, p. 309. The

owner of land who forcibly enters thereon and ejects MASSACHUSETTS REPORTS, VOL. 121.

without unnecessary force a tenant at sufferance, who

has had reasonable notice to quit, is not liable to an Cases aroued and determined in the Supreme Judicial Court

of Massachusetts, September, 1876 - January, 1877. John action for an assault. Commonwealth v. Filkins, p. Lathrop, Reporter. Boston: H. 0. Houghton and Com 356. A city had authority to pass ordinances with pany, 1877.

penalties for violation not exceeding $20 for one ofIT is always a pleasure to us to take up a volume of fense. An ordinance prescribing for a continuing act 1 the Massachusetts Reports, for we know it will be a penalty of uot less than $1 nor more than $5 for filled with interesting and valuable cases, carefully re every hour the act was continued, held, invalid. Comported and presented in as attractive a shape as is pos monwealth v. Hoffman, p. 369. An acquittal on an insible, by the most elegant paper, press work and bind dictment for breaking and entering a dwelling-house ing. The present number forms no exception to the 1 and stealing the property of A, held no bar to a com

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