The Albany Law Journal: A Monthly Record of the Law and the Lawyers

Abstracts of Recent Decisions.

ADMIRALTY-JURISDICTION.-Admiralty has no jurisdiction of a tort where the injury was received on the land, though the wrongful act was done on a ship. (Price v. the Bell of the Coast [U. S. D. C., La.], 66 Fed. Rep. 62.)

ASSIGNMENT-HUSBAND AND WIFE. Where the words of an assignment to husband and wife leave in doubt the question of whether it is to them in severalty or as tenants by the entirety, the circumstances of the assignment and the character of the entire transaction may be considered. (In re Young's Estate [Pa.], 31 Atl. Rep. 373.)

CARRIERS SEASON-TICKET HOLDERS. - In an action by a railroad company to recover the fare for a certain trip to which defendant claims he was entitled under his season ticket, a schedule of trains in force at the time is admissible to show that the train upon which defendant rode did not regularly stop at his destination, and that he did not have the right to ride on it under the contract in his season ticket. (New York & N. E. R. Co. v. Feely [Mass.], 40 N. E. Rep. 20.)

PROCESS OF LAW

CONSTITUTIONAL LAW-DUE Comp. Laws Utah 1888, § 2087, providing that any person who drives a herd of certain animals over a highway constructed on a hillside shall be liable for certain damage done by such animals to the highway, does not deny the equal protection of the law, or deprive persons of property without due process of law, within the inhibition of Const. U. S. Amend. 14. (Brim v. Jones [Utah], 39 Pac. Rep. 825.)

CORPORATION-STOCK-DELIVERY.-An indorsement of a certificate of mining stock by the holder thereof, at the request of the owner, to a third person, as security for his indorsement of the owner's notes, constitutes an actual delivery of the stock to the owner, and relieves the one indorsing it from liability for a conversion of the stock in not delivering it to the owner in person. (McDonald v. Mackinnon [Mich.], 62 N. W. Rep. 560.)

upon the ground that the real owner placed it in his assignee's power to commit the fraud. (Baker v. Wood [U. S. S. C.], 15 S. C. Rep. 563.)

INSURANCE-ACTION ON POLICY-In an action on claration and the evidence as to the date of the a fire insurance policy, a variance between the depolicy is not fatal, proofs of loss having been made within the time required. (Lum v. United States Fire Ins. Co. [Mich.], 62 N. W. Rep. 562.)

JUDGMENT -COLATERAL ATTACK.-An administrator's sale of land cannot be collaterally attacked on the grounds that complainants did not contest the probate proceedings for the sale because of their ignorance of their rights, and that the debt for which the land was sold was barred by limitation, and alleging fraud and collusion generally. (Cobb v. Garner [Ala. ], 17 South. Rep. 47.)

LANDLORD AND TENANT — INSOLVENCY OF LESSEE. An assignee or receiver has a reasonable time in which to elect whether he will accept or reject a lease, wherein the party whose estate he represents is lessee, and, during such reasonable time, he may enter upon and occupy the demised premises for the purpose of selling, under the direction of the court, personal property thereon belonging to the trust estate, without thereby accepting the lease for such estate. (Nelson v. Kalkhoff [Minn.], 62 N. W. Rep. 335.)

MARRIAGE PROMISE- EXCESSIVE DAMAGES.- A contract to marry entered into between parties, one only of whom is qualified to make such a contract, is void. (Eve, v. Rodgers [Ind.], 40 N. E. Rep. 25.)

MASTER AND SERVANT--INJURIES TO EMPLOYEDEFECTIVE APPLIANCES.—In an action by a servant against the master for injuries received through the bursting of a water valve, the evidence was that the appearance of the valve did not indicate to one without special knowledge that the valve was defective, and there was no evidence that defendant possessed that special knowledge, nor any evidence inconsistent with the supposition that the valve had been properly tested before defendant accepted it. that defendant knew, or by proper care might have Held, that the burden being on plaintiff to show known, that the valve was unsafe, a nonsuit was proper. (Deane v. Roaring Fork Electric Light & Power Co. [Colo.], 39 Pac. Rep. 346.)

MUNICIPAL CORPORATIONS- PUBLIC IMPROVEMENTS.-The fixing by board of city water commissioners, in specifications for work to be done of a minimum price to be paid for labor, and the awarding of a contract on the basis of such specifications, is a vioiation of a statutory provision requiring such work to be awarded to the lowest responsible bidder, and void. (Frame v. Felix [Pa.], 31 Atl. Rep.

ESTOPPEL-IN PAIS-ASSIGNMENT OF JUDGMENT. -Where the owner of a judgment transfers the same by an unconditional assignment, but really for purposes of collection only, and the assignee fraudulently assigns it to an innocent purchaser, the principle of estoppel applies in favor of the latter, | 375.)

assess

MUNICIPAL INDEBTEDNESS --- BASIS OF LIMIT.Under Const., Mo., art. 10, § 12, declaring that no city shall incur an indebtedness exceeding five per cent of the value of its taxable property, "to be ascertained by the assessment next before the last assessment for State and county purposes, previous to the incurring of such indebtedness," an ment cannot be considered which has not passed the State board of equalization. (Prickett v. City of Marceline [U. S. C. C., Mo.], 65 Fed. Rep. 469.) NEGOTIABLE INSTRUMENT― NOTE - CONSIDERATION. — A partner gave a note to a person to whose business the firm succeeded, and for five years made no demand for surrender, though a demand had been made on him for payment. A branch of the business was established without the payee's knowledge, and the maker's partner submitted to a judgment on a like note given by him. Held, sufficient to show that the note was given for the interest in the business. (Browning v. Kempton [N. J.], 31 Atl. Rep. 380.)

PARENT AND CHILD- CUSTODY OF CHILD.-AS against the claim of a child's maternal grandparents, and in the absence of any deed to them of

the custody of the child, its father, who is morally and financially fitted to care for it, is entitled to the custody. (Latham v. Ellis [N. Car.], 20 S. E. Rep. 1012.)

PARTNERSHIP POWER OF MEMBERS.-A chose in action accruing to a partnership from a transaction in the ordinary course of its business may be transferred by a single member of the firm. (Gerli v. Poidebard Silk Manuf'g Co. [N. J.], 31 Atl. Rep. 401.)

RAILROAD COMPANY- INJURY - NEGLIGENCE When entering into the railway service in such a latitude, an employe assumes such risks as are usually and customarily incident to the falling of snow, the forming of ice, and the removal of the same from tracks and places where employes are required to work, when the removal or disposition thereof is done in a proper and reasonable manner, in the exercise of due and ordinary care for the safety of employes. (Lawson v. Truesdale [Minn.], 62 N. W. Rep. 546.)

RECEIVERS CORPORATION --- Officers of a corporation, appointed its receivers because its business was complicated, intricate, and widely extended, with millions of dollars invested upon small mortgages scattered through several States, will not be removed from the receivership because of former imprudent investments, and other mismanagement of the business of the corporation, as its officers, no fraudulent practices which would disqualify them being shown. (Fowler v. Jarvis Conklin Mortgage Trust Co. [U. S. C. C., N. Y.], 66 Fed. Rep. 14.)

RECEIVERS-S--RAILWAY REORGANIZATION SCHEME -It is not improper for the receiver of a railway corporation to promote any reorganization scheme which offers the prospect of securing the largest measure of protection to all persons concerned in or connected with the property and assets in the custody of the court, but in so doing he must not promote one interest at the expense of others equally entitled to the court's protection. (Clarke v. Central Railroad & Banking Co. of Georgia [U. S. C. C., Ga.], 66 Fed. Rep. 16.)

RES JUDICATA- DIFFERENT CAUSE OF ACTION.An action against a receiver for failure to collect a judgment out of certain bonds and other property, alleged to have belonged to the judgment debtor, is not barred by a judgment in a former action by plaintiff, to which the receiver was not a party, in which it was adjudged that the debtor was not the owner of the bonds, and in which the other property was not involved. (Turner v. Rosenthal [N. Car.], 21 S. E. Rep. 198.)

WATER RIGHTS PUBLIC LANDS.- One desiring to appropriate the water of a stream on vacant public land of the United States may take possession of

and use a ditch already constructed on the land, and

not in the actual possession of another. (Utt v. Frey [Cal.], 39 Pac. Rep. 807.)

WILLS CONSTRUCTION.-Stocks were devised to testator's son, to be held in trust ten years, then to be delivered to him; if deceased, then to his son; if both were deceased before the ten years have expired, then to be transferred to his daughters, L. and M.; if either daughter was deceased, her portion was to be transferred to the remaining daughter; if both were deceased, then to certain others: Held, not to create a trust which suspends alienation for a longer period than two lives in being. (Montignani v. Blade [N. Y.], 39 N. E. Rep. 719.)

DEFEASIBLE FEE. Testator devised a farm in trust for J., with power in the trustee to collect the rents thereof for the support of J., and provided that the farm should go, after the death of J., to his children, if he had any, but that, if he had none, it should go to any person whom J. might devise it to, and that it should be "theirs " forever. Held, that J. was vested with a fee which could be defeated only by his having bodily heirs. (McCallister v. Bethel [Ky.], 29 S. W. Rep. 745.)

TESTAMENTARY POWERS.-Where the will of the donee of a power does not refer to the power, nor specifically to the property controlled by it, but merely devises all her estate, real and personal, it being shown that the realty subject to the power was vested in the donee's father, who survived her, and that she had personal, but no real property, such devise was not an execution of the power. (Mason v. Wheeler [R. I.), 31 Atl. Rep. 426.)

The Albany Law Journal.

ALBANY, JUNE 15, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

ONE

results from contradictory statutes may in large measure be obviated without any great modification of the statute law in any one State, by merely passing, under the general head of acts to promote national uniformity of law,'new and simple chapters of laws in cases where the uniform law is different from the law as already existing in the State. In most cases they will be the same; for, other things being equal, we shall, of course, recommend for adoption the law existing already in the greatest number of States.

NE of the most interesting and thoughtful articles that has recently appeared is a "Now how does this diversity of statute law paper on "Uniform State Legislation," by arise? Let us consider the statute law of the Frederic J. Stimson, of Boston, Mass., which original thirteen States, and the extent to which was submitted to the American Academy of they have simultaneously adopted the common Political and Social Science, of Philadelphia. law of England and its statutes. The inherited This is undoubtedly a subject which is of in-body of English laws, as existing, let us say, creasing importance to Americans, and the necessity of making some radical change to make the laws of the different States operate in a like manner and with similar force on the citizens of the country is becoming more and more appreciated by students of law. In opening his paper Mr. Stimson says:

"We are living under a fourfold system of law; there is in every State (1) the common law of the State as interpreted by its courts; (2) the common law as interpreted by the United States courts; (3) the statutes of the State, and (4) the statutes of the United States. "Can the complication which thus arises be abated? I, for one, have no desire to touch our system of State and Federal government, with the resulting system of State and Federal courts; still less have I any desire to touch the Federal Constitution, or to alter that great principle of local self-government under which our sovereign States legislate for themselves on their own affairs a method which so well combines Roman power with Saxon freedom.' But by voluntary and simultaneous action the same action which led to the adoption of the Federal Constitution it is hoped that the several States may gradually be brought to enact the same statutes on all purely formal matters, on most matters of trade and commerce, and in general on all those subjects where no peculiar geographical or social condition, or inherited custom of the people demands in each State a separate and peculiar statute law. In other words, we think that the confusion which VOL. 51 No. 24.

July 4, 1776, was already somewhat complex. It consisted: (1) of the common law of England so far as each State had tacitly adopted it as suited to their condition; and, further, so far as they had expressly adopted it by statute at this or a subsequent time; (2) of the statutes of England, or Great Britain, amendatory to the common law, which they had in like manner, that is, tacitly or expressly, adopted; and (3) of the colonial statutes themselves.

Here we may observe two reasons for diversity: (1) In English statute law, as the States differed very widely in the completeness with which they adopted it, and the date to which they brought such adoption, and (2) the difference. existing among the colonies in their own statutes. This, however, is not so great as would be supposed; for nearly all colonial statutes were more in the nature of ordinances, and concerned such matters as the treatment of Indians and the financial system rather than the general common law; and, moreover, after the revolution there was a distinct tendency to adopt the same laws, even though the colonial laws had differed. For instance, in the case of the inheritance of land, some States had, before the Revolution, the rule of primogeniture, some States-like Massachusetts-gave the eldest son a double portion; and some States had already adopted, under the lead of Georgia, the system. universal at present, by which all persons shared equally.

"Considering first the common law of England, Franklin said of it, 'The settlers of colo

BASIS OF LIMIT.

MUNICIPAL INDEBTEDNESS Under Const., Mo., art. 10, § 12, declaring that no city shall incur an indebtedness exceeding five per cent of the value of its taxable property, "to be ascertained by the assessment next before the last assessment for State and county purposes, previous to the incurring of such indebtedness," an assessment cannot be considered which has not passed the State board of equalization. (Prickett v. City of Marceline [U. S. C. C., Mo.], 65 Fed. Rep. 469.)

TION.

NEGOTIABLE INSTRUMENT-NOTE CONSIDERA- A partner gave a note to a person to whose business the firm succeeded, and for five years made no demand for surrender, though a demand had been made on him for payment. A branch of the business was established without the payee's knowledge, and the maker's partner submitted to a judgment on a like note given by him. Held, sufficient to show that the note was given for the interest in the business. (Browning v. Kempton [N. J.], 31 Atl. Rep. 380.)

PARENT AND CHILD

CUSTODY OF CHILD.-As

against the claim of a child's maternal grand

parents, and in the absence of any deed to them of

the custody of the child, its father, who is morally and financially fitted to care for it, is entitled to the custody. (Latham v. Ellis [N. Car.], 20 S. E. Rep. 1012.)

PARTNERSHIP POWER OF MEMBERS.--A chose in action accruing to a partnership from a transaction in the ordinary course of its business may be transferred by a single member of the firm. (Gerli v. Poidebard Silk Manuf'g Co. [N. J.], 31 Atl. Rep. 401.)

NEGLIGENCE

RAILROAD COMPANY -INJURY When entering into the railway service in such a latitude, an employe assumes such risks as are usually and customarily incident to the falling of snow, the forming of ice, and the removal of the same from tracks and places where employes are required to work, when the removal or disposition thereof is done in a proper and reasonable manner, in the exercise of due and ordinary care for the safety of employes. (Lawson v. Truesdale [Minn.], 62 N. W. Rep. 546.)

RECEIVERS--It is not improper for the receiver of a railway corporation to promote any reorganization scheme which offers the prospect of securing the largest measure of protection to all persons concerned in or connected with the property and assets in the custody of the court, but in so doing he must not promote one interest at the expense of others equally entitled to the court's protection. (Clarke v. Central Railroad & Banking Co. of Georgia [U. S. C. C., Ga.], 66 Fed. Rep. 16.)

--RAILWAY REORGANIZATION SCHEME

RES JUDICATA An action against a receiver for failure to collect a judgment out of certain bonds and other property, alleged to have belonged to the judgment debtor, is not barred by a judgment in a former action by plaintiff, to which the receiver was not a party, in

DIFFERENT CAUSE OF ACTION.—

which it was adjudged that the debtor was not the owner of the bonds, and in which the other property was not involved. (Turner v. Rosenthal [N. Car.], 21 S. E. Rep. 198.)

WATER RIGHTS PUBLIC LANDS.- One desiring to appropriate the water of a stream on vacant pub

lic land of the United States may take possession of and use a ditch already constructed on the land, and not in the actual possession of another. (Utt v. Frey [Cal.], 39 Pac. Rep. 807.)

WILLS CONSTRUCTION. -Stocks were devised to testator's son, to be held in trust ten years, then to be delivered to him; if deceased, then to his son; if both were deceased before the ten years have expired, then to be transferred to his daughters, L. and M.; if either daughter was deceased, her portion was to be transferred to the remaining daughter; if both were deceased, then to certain others: Held, not to create a trust which suspends alienation for a longer period than two lives in being. (Montignani v. Blade [N. Y.], 39 N. E. Rep. 719.)

DEFEASIBLE FEE. - Testator devised a farm in trust for J., with power in the trustee to collect the rents thereof for the support of J., and provided that the farm should go, after the death of J., to his children, if he had any, but that, if he had none, it should go to any person whom J. might devise it to, and that it should be "theirs" forever. Held, that J. was vested with a fee which could be defeated only by his having bodily heirs. (McCallister v. Bethel [Ky.], 29 S. W. Rep. 745.)

The Albany Law Journal.

ALBANY, JUNE 15, 1895.

Current Topics.

ONE

"Now how does this diversity of statute law arise? Let us consider the statute law of the original thirteen States, and the extent to which they have simultaneously adopted the common law of England and its statutes. The inherited

NE of the most interesting and thoughtful articles that has recently appeared is a paper on "Uniform State Legislation," by Frederic J. Stimson, of Boston, Mass., which was submitted to the American Academy of Political and Social Science, of Philadelphia. This is undoubtedly a subject which is of in-body of English laws, as existing, let us say, creasing importance to Americans, and the necessity of making some radical change to make the laws of the different States operate in a like manner and with similar force on the citizens of the country is becoming more and more appreciated by students of law. In opening his paper Mr. Stimson says:

Here we may observe two reasons for diversity: (1) In English statute law, as the States differed very widely in the completeness with which they adopted it, and the date to which they brought such adoption, and (2) the difference existing among the colonies in their own statutes. This, however, is not so great as would be supposed; for nearly all colonial statutes were more in the nature of ordinances, and concerned such matters as the treatment of Indians and the financial system rather than the general common law; and, moreover, after the revolution there was a distinct tendency to adopt the same laws, even though the colonial laws had differed. For instance, in the case of the inheritance of land, some States had, before the Revolution, the rule of primogeniture, some

"We are living under a fourfold system of law; there is in every State (1) the common law of the State as interpreted by its courts; (2) the common law as interpreted by the United States courts; (3) the statutes of the State, and (4) the statutes of the United States. "Can the complication which thus arises be abated? I, for one, have no desire to touch our system of State and Federal government, with the resulting system of State and Federal courts; still less have I any desire to touch the Federal Constitution, or to alter that great principle of local self-government under which our sovereign States legislate for themselves on their own affairs - a method which so well combines Roman power with Saxon freedom.' But by voluntary and simultaneous action the same action which led to the adoption of the Federal Constitution it is hoped that the several States may gradually be brought to enact the same statutes on all purely formal mat-States-like Massachusetts-gave the eldest son ters, on most matters of trade and commerce, a double portion; and some States had already and in general on all those subjects where no adopted, under the lead of Georgia, the system peculiar geographical or social condition, or in- universal at present, by which all persons shared herited custom of the people demands in each equally. State a separate and peculiar statute law. In other words, we think that the confusion which VOL. 51 No. 24.

"Considering first the common law of England, Franklin said of it, 'The settlers of colo

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