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INSOLVENCY OF LES

PROCESS OF LAW

Abstracts of Recent Decisions. upon the ground that the real owner placed it in his

assignee's power to commit the fraud. (Baker v. ADMIRALTY—JURISDICTION. ---Admiralty has no Wood [U. S. S. C.), 15 S. C. Rep. 563.) jurisdiction of a tort where the injury was received

INSURANCE-ACTION ON POLICY-In an action on on the land, though the wrongful act was done on a ship. (Price v. the Bell of the Coast (U. S. D. C., Claration and the evidence as to the date of the

a fire insurance policy, a variance between the deLa.], 66 Fed. Rep. 62.)

policy is not fatal, proofs of loss having been made ASSIGNMENT-HUSBAND AND WIFE.--Where the within the time required. (Lum v. United States words of an assignment to husband and wife leave Fire Ins. Co. [Mich.], 62 N. W. Rep. 562.) in doubt the question of whether it is to them in

JUDGMENT COLATERAL ATTACK.-An adminisseveralty or as tenants by the entirety, the circumstances of the assignment and the character of the trator's sale of land cannot be collaterally attacked entire transaction may be considered. (In re Young's

on the grounds that complainants did not contest Estate [Pa.), 31 Atl. Rep. 373.)

the probate proceedings for the sale because of their

ignorance of their rights, and that the debt for CARRIERS

HOLDERS, – In action by a railroad company to recover the fare for and alleging fraud and collusion generally. (Cobb

which the land was sold was barred by limitation, a certain trip to which defendant claims he was en

v. Garner (Ala.], 17 South. Rep. 47.) titled under his season ticket, a schedule of trains in force at the time is admissible to show that the

LANDLORD AND TENANT train upon which defendant rode did not regularly

SEE. --An assignee or receiver has a reasonable time stop at his destination, and that he did not have in which to elect whether he will accept or reject a the right to ride on it under the contract in his lease, wherein the party whose estate he represents season ticket. (New York & N. E. R. Co. v. Feely is lessee, and, during such reasonable time, he may [Mass.), 40 N. E. Rep. 20.)

enter upon and occupy the demised premises for the ConstitUTIONAL LAW-DUE

purpose of selling, under the direction of the court, Comp. Laws Utah 1888, § 2087, providing that any

personal property thereop belonging to the trust es

tate, without thereby accepting the lease for such person who drives a herd of certain animals over a

estate. (Nelson v. Kalkhoff (Minn.), 62 N. W. Rep. highway constructed on a billside shall be liable for

335.) certain damage done by such animals to the high

MARRIAGE PROMISE — EXCESSIVE DAMAGES. -d way, does not deny the equal protection of the law, or deprive persons of property without due process

contract to marry entered into between parties, one of law, within the inhibition of Const. U. S. Amend. only of whom is qualified to make such a contract, 14. (Brim v. Jones (Utah), 39 Pac. Rep. 825.)

is void. (Eve, v. Rodgers (Ind.], 40 N. E. Rep. 25.)

MASTER AND SERVANT--INJURIES TO EMPLOYECORPORATION-STOCK-DELIVERY.--An indorsement of a certificate of mining stock by the holder

DEFECTIVE APPLIANCES.-In an action by a servthereof, at the request of the owner, to a third per- ant against the master for injuries received through son, as security for his indorsement of the owner's the bursting of a water valve, the evidence was that notes, constitutes an actual delivery of the stock to the appearance of the valve did not indicate to one the owner, and relieves the one indorsing it from

without special knowledge that the valve was deliability for a conversion of the stock in not deliver- fective, and there was no evidence that defendant ing it to the owner in person. (McDonald v. Mack- possessed that special knowledge, nor any evidence innon Mich.), 62 N. W. Rep. 560.)

inconsistent with the supposition that the valve had

been properly tested before defendant accepted it. DIVORCE

AGREEMENT.--An agree- leld, that the burden being on plaintiff to show ment between husband and wife, executed pending that defendant knew, or by proper care might have divorce proceedings, in regard to the division of known, that the valve was unsafe, a nonsuit was their property and the custody of their children, based on the consideration that the husband with Power Co. (Colo.], 39 Pac. Rep. 346.)

proper. (Deane v. Roaring Fork Electric Light & draw his counter charges, and make no defense to the action, is void as against public policy. (Lo-MENTS.—The fixing by board of city water commis

MUNICIPAL veren v. Loveren [Cal.), 39 Pac. Rep. 801.)

sioners, in specifications for work to be done of a ESTOPPEL-IN PAIS-ASSIGNMENT OF JUDGMENT.

minimum price to be paid for labor, and the award-Where the owner of a judgment transfers the ing of a contract on the basis of such specifications, same by an unconditional assignment, but really for is a vioiation of a statutory provision requiring such purposes of collection only, and the assignee fraud- work to be awarded to the lowest responsible bidulently assigns it to an innocent purchaser, the der, and void. (Frame v. Felix [Pa.), 31 Atl. Rep. principle of estoppel applies in favor of the latter, I 375.)

COLLUSIVE

CORPORATIONS

PUBLIC

IMPROVEOF

LIMIT.

INSTRUMENT - NOTE

CONSIDERA

TION.

DIFFERENT CAUSE OF ACTION

CUSTODY OF

MUNICIPAL INDEBTEDNESS - BASIS

RECEIVERS--RAILWAY REORGANIZATION SCHEME Under Const., Mo., art. 10, § 12, declaring that no - It is not improper for the receiver of a railway city shall incur an indebtedness exceeding five per corporation to promote any reorganization scheme cent of the value of its taxable property, “ to be which offers the prospect of securing the largest ascertained by the assessment next before the last measure of protection to all persons concerned in or assessment for State and county purposes, previous connected with the property and assets in the custo the incurring of such indebtedness," an assess-tody of the court, but in so doing he must not proment cannot be considered which has not passed mote one interest at the expense of others equally the State board of equalization. (Prickett v. City entitled to the court's protection. (Clarke v. Central of Marceline LU. S. C. C., Mo.], 65 Fed. Rep. 469.) Railroad & Banklng Co. of Georgia [U. S. C. C., NEGOTIABLE

Ga.), 66 Fed. Rep. 16.)

RES JUDICATA - A partner gave a note to a person to whose business the firm succeeded, and for five years made

An action against a receiver for failure to collect a no demand for surrender, though a demand had judgment out of certain bonds and other property, been made on him for payment.

A branch of the alleged to havo belonged to the judgment debtor, business was established without the payee's know

is not barred by a judgment in a former action by ledge, and the maker's partner submitted to a judg- plaintiff, to which the receiver was not a party, in ment on a like note given by bim. Held, sufficient

which it was adjudged that the debtor was not the

owner of the bonds, and in which the other property to show that the note was given for the interest in the business. (Browning v. Kempton [N. J.), 31

was not involved. (Turner v. Rosenthal [N. Car.], Atl. Rep. 380.)

21 S. E. Rep. 198.)

WATER RIGHTS PARENT AND CHILD

PUBLIC LANDS.- One desiring

CHILD.-As against the claim of a child's maternal grand- to appropriate the water of a stream on vacant pub

lic land of the United States may take possession of parents, and in the absence of any deed to them of

and use a ditch already constructed on the land, and the custody of the child, its father, who is morally and financially fitted to care for it, is entitled to

not in the actual possession of another. (Utt v. the custody. (Latham v. Ellis (N. Car.), 20 S. E. Frey (Cal.), 39 Pac. Rep. 807.)

WILLS Rep. 1012.)

CONSTRUCTION.-Stocks were devised to

testator's son, to be held in trust ten years, then to PARTNERSHIP-POWER OF MEMBERS.-A chose in

be delivered to him; if deceased, then to his son; action accruing to a partnership from a transaction

if both were deceased before the ten years have in the ordinary course of its business may be trans

expired, then to be transferred to his daughters, L. ferred by a single member of the firm. (Gerli v.

and M.; if either daughter was deceased, her porPoidebard Silk Manuf'g Co. [N. J.), 31 Atl. Rep. tion was to be transferred to the remaining daugh401.)

ter; if both were deceased, then to certain others : RAILROAD

Hell, not to create a trust which suspends alienation When entering into the railway service in such a for a longer period than two lives in being. (Monlatitude, an employe assumes such risks as are tignani v. Blade [N. Y.), 39 N. E. Rep. 719.) usually and customarily incident to the falling of

- Testator devised a snow, the forming of ice, and the removal of the farm in trust for J., with power in the trustee to same from tracks and places where employes are collect the rents thereof for the support of J., and re ired to work, when the removal or (lisposition provided that the farm should go, after the death thereof is done in a proper and reasonable manner, of J., to his children, if he had any, but that, if he in the exercise of due and ordinary care for the had none, it should go to any person whom J. safety of employes. (Lawson v. Truesdale [Minn.), might devise it to, and that it should be “ theirs » 62 N. W. Rep. 546.)

forever. Held, that J. was vested with a fee RECEIVERS- S-CORPORATION ---Officers of a corpor

which could be defeated only by his having bodily ation, appointed its receivers because its business heirs. (McCallister v. Bethel (Ky.], 29 S. W. Rep. 745.) wils complicated, intricate, and widely extended,

Where the will with millions of dollars invested upon small mort- of the donee of a power does not refer to the power, gages scattered through several States, will not be nor specifically to the property controlled by it, but removed from the receivership because of former merely devises all her estate, real and personal, it imprudent investments, and other mismanagement being shown that the realty subject to the power of the business of the corporation, as its officers, no was vested in the donee's father, who survived her, fraudulent practices which would disqualify them and that she had personal, but no real property, such being shown. (Fowler v. Jarvis Conklin Mortgage devise was not an execution of the power. (Mason Trust Co. (U. S. C. C., N. Y.), 66 Fed. Rep. 14.) v. Wheeler (R. I.], 31 Atl. Rep. 426.)

COMPANY - INJURY

NEGLIGENCE

DEFEASIBLE

FEE.

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TESTAMENTARY POWERS.

ONE

results from contradictory statutes may in large The Albany Law Journal.

measure be obviated without any great modifi

cation of the statute law in any one State, by ALBANY, JUNE 15, 1895.

merely passing, under the general head of' acts to

promote national uniformity of law,'new and simCurrent Lopics.

ple chapters of laws in cases where the uniform (All communications intended for the Editor should be ad

law is different from the law as already existing dressed simply to the Editor of THE ALBANY LAW JOURNAL. in the State. In most cases they will be the All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW same; for, other things being equal, we shall, JOURNAL COMPANY.]

of course, recommend for adoption the law exNE of the most interesting and thoughtful isting already in the greatest number of States. 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 ne-July 4, 1776, was already somewhat complex. cessity of making some radical change to make It consisted: (1) of the common law of Engthe laws of the different States operate in a like land so far as each State had tacitly adopted it manner and with similar force on the citizens as suited to their condition; and, further, so far of the country is becoming more and more ap- as they had expressly adopted it by statute at preciated by students of law. In opening his this or a subsequent time; (2) of the statutes of paper Mr. Stimson says:

England, or Great Britain, amendatory to the “We are living under a fourfold system of common law, which they had in like manner, law; there is in every State (1) the common

that is, tacitly or expressly, adopted; and (3) law of the State as interpreted by its courts;

of the colonial statutes themselves. (2) the common law as interpreted by the

“Here we may observe two reasons for diverUnited States courts; (3) the statutes of the sity: (1) In English statute law, as the States State, and (4) the statutes of the United States. differed very widely in the completeness with

Can the complication which thus arises be which they adopted it, and the date to which they abated ? I, for one, have no desire to touch brought such adoption, and (2) the difference our system of State and Federal government, existing among the colonies in their own statwith the resulting system of State and Federal utes. This, however, is not so great as would courts; still less have I any desire to touch the be supposed; for nearly all colonial statutes Federal Constitution, or to alter that great

were more in the nature of ordinances, and conprinciple of local self-government under which cerned such matters as the treatment of Indians our sovereign States legislate for themselves and the financial system rather than the general on their own affairs — ' a method which so well common law; and, moreover, after the revolucombines Roman power with Saxon freedom.' tion there was a distinct tendency to adopt the But by voluntary and simultaneous action - same laws, even though the colonial laws had the same action which led to the adoption of differed. For instance, in the case of the inthe Federal Constitution - it is hoped that the heritance of land, some States had, before the several States may gradually be brought to en. Revolution, the rule of primogeniture, some act 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 “Considering first the common law of Engother words, we think that the confusion which I land, Franklin said of it, ‘The settlers of colo

VOL. 51 — No. 24.

BASIS OF

LIMIT. -

assess

INSTRUMENT

NOTE

CONSIDERA

- DIFFERENT CAUSE OF ACTION.

CUSTODY

OF

MUNICIPAL INDEBTEDNESS

RECEIVERS--RAILWAY REORGANIZATION SCHEME Under Const., Mo., art. 10, § 12, declaring that no -It is not improper for the receiver of a railway city shall incur an indebtedness exceeding five per corporation to promote any reorganization scheme cent of the value of its taxable property, “to be which offers the prospect of securing the largest ascertained by the assessment next before the last measure of protection to all persons concerned in or assessment for State and county purposes, previous connected with the property and assets in the custo the incurring of such indebtedness," an

tody of the court, but in so doing he must not proment cannot be considered which has not passed

mote one interest at the expense of others equally the State board of equalization. (Prickett v.

City

entitled to the court's protection. (Clarke v. Central of Marceline [U. S. C. C., Mo.), 65 Fed. Rep. 469.)

Railroad & Banking Co. of Georgia [U. S. C. C., NEGOTIABLE

Ga.], 66 Fed. Rep. 16.)

RES JUDICATA TiON. — A partner gave a note to a person to whose business the tirm succeeded, and for five years made

An action against a receiver for failure to collect a no demand for surrender, though a demand had judgment out of certain bonds and other property, been made on him for payment.

A branch of the alleged to havo belonged to the judgment debtor, business was established without the payee's know

is not barred by a judgment in a former action by ledge, and the maker's partner submitted to a judg- plaintiff, to which the receiver was not a party, in ment on a like note given by bim. Held, sufficient which it was adjudged that the debtor was not the to show that the note was given for the interest in

owner of the bonds, and in which the other property the business. (Browning v. Kempton [N. J.], 31

was not involved. (Turner v. Rosenthal (N. Car. ), Atl. Rep. 380.)

21 S. E. Rep. 198.)

WATER RIGHTS PARENT AND CHILD

PUBLIC LANDS.- One desiring

CHILD.-AS against the claim of a child's maternal grand to appropriate the water of a stream on vacant pub

lic land of the United States may take possession of parents, and in the absence of any deed to them of

and use a ditch already constructed on the land, and the custody of the child, its father, who is morally and financially fitted to care for it, is entitled to

not in the actual possession of another. (Utt v. the custody. (Latham v. Ellis (N. Car.), 20 S. E.

Frey (Cal. ), 39 Pac. Rep. 807.)

WILLS Rep. 1012.)

CONSTRUCTION. - Stocks were devised to

testator's son, to be held in trust ten years, then to PARTNERSHIP --POWER OF MEMBERS.-A chose in

be delivered to him; if deceased, then to his son; action accruing to a partnership from a transaction

if both were deceased before the ten years have in the ordinary course of its business may be trans

expired, then to be transferred to his daughters, L. ferred by a single member of the firm. (Gerli v.

and M.; if either daughter was deceased, her porPoidebard Silk Manuf'g Co. (N. J.], 31 Atl. Rep.

tion was to be transferred to the remaining daugh401.)

ter; if both were deceased, then to certain others: RAILROAD

Hell, not to create a trust which suspends alienation When entering into the railway service in such a

for a longer period than two lives in being. (Monlatitude, an employe assumes such risks as are tigoani v. Blade [N. Y.), 39 N. E. Rep. 719.) usually and customarily incident to the falling of

Testator devised a snow, the forming of ice, and the removal of the farm in trust for J., with power in the trustee to same from tracks and places where employes are collect the rents thereof for the support of J., and required to work, when the removal or disposition provided that the farm should go, after the death thereof is done in a proper and reasonable manner, of J., to his children, if he had any, but that, if he in the exercise of due and ordinary care for the had none, it should go to any person whom J. safety of employes. (Lawson v. Truesdale [Minn.), might devise it to, and that it should be “theirs” 62 N. W. Rep. 546.)

forever. Held, that J. was vested with a fec RECEIVERS-CORPORATION ---Officers of a corpor

which could be defeated only by bis having bodily ation, appointed its receivers because its business heirs. (McCallister v. Bethel [Ky.], 29 S.W. Rep. 745.) was complicated, intricate, and widely extended,

TESTAMENTARY POWERS.- Where the will with millions of dollars invested upon small mort

of the donee of a power does not refer to the power, gages scattered through several States, will not be nor specifically to the property controlled by it, but removed from the receivership because of former merely devises all her estate, real and personal, it imprudent investments, and other mismanagement being shown that the realty subject to the power of the business of the corporation, as its officers, no was vested in the donee's father, who survived her, fraudulent practices which would disqualify them and that she had personal, but no real property, such being shown. (Fowler v. Jarvis Conklin Mortgage devise was not an execution of the power. (Jason Trust Co. (U. S. C. (., N. Y.), 66 Fed. Rep. 14.) v. Wheeler [R. I.), 31 Atl. Rep. 426.)

COMPANY

INJURY

NEGLIGENCE

DEFEASIBLE

FEE.

ONE

results from contradictory statutes may in large The Albany Law Journal.

measure be obviated without any great modifi

cation of the statute law in any one State; by ALBANY, JUNE 15, 1895.

merely passing, under the general head of acts to

promote national uniformity of law, 'new and simCurrent Lopics.

ple chapters of laws in cases where the uniform (All communications intended for the Editor should be ad

law is different from the law as already existing dressed simply to the Editor of The ALBANY LAW JOURNAL. in the State. In most cases they will be the All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW same; for, other things being equal, we shall, JOURNAL COMPANY.]

of course, recommend for adoption the law exNE of the most interesting and thoughtful isting already in the greatest number of States. 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 ne- July 4, 1776, was already somewhat complex. cessity of making some radical change to make It consisted: (1) of the common law of Engthe laws of the different States operate in a like land so far as each State had tacitly adopted it manner and with similar force on the citizens as suited to their condition; and, further, so far of the country is becoming more and more ap- as they had expressly adopted it by statute at preciated by students of law. In opening his this or a subsequent time; (2) of the statutes of paper Mr. Stimson says:

England, or Great Britain, amendatory to the “We are living under a fourfold system of common law, which they had in like manner, law; there is in every State (1) the common

that is, tacitly or expressly, adopted; and (3) law of the State as interpreted by its courts;

of the colonial statutes themselves. (2) the common law as interpreted by the

“Here we may observe two reasons for diverUnited States courts; (3) the statutes of the sity: (1) In English statute law, as the States State, and (4) the statutes of the United States. differed very widely in the completeness with

Can the complication which thus arises be which they adopted it, and the date to which they abated ? I, for one, have no desire to touch brought such adoption, and (2) the difference our system of State and Federal government, existing among the colonies in their own statwith the resulting system of State and Federal utes. This, however, is not so great as would courts; still less have I any desire to touch the be supposed; for nearly all colonial statutes Federal Constitution, or to alter that great

were more in the nature of ordinances, and conprinciple of local self-government under which cerned such matters as the treatment of Indians our sovereign States legislate for themselves and the financial system rather than the general on their own affairs — a method which so well common law; and, moreover, after the revolucombines Roman power with Saxon freedom.' tion there was a distinct tendency to adopt the But by voluntary and simultaneous action same laws, even though the colonial laws had the same action which led to the adoption of differed. For instance, in the case of the inthe Federal Constitution it is hoped that the heritance of land, some States had, before the several States may gradually be brought to en- Revolution, the rule of primogeniture, some act 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 “Considering first the common law of Engother words, we think that the confusion which I land, Franklin said of it, “The settlers of colo

VOL. 51 – No. 24.

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