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Supreme Court (sec. 58). By section 59 (2 R. S., cause of the insanity of the testator, or for any 67) it was provided : The final determination of other cause, in respect to one species of property such issue shall be conclusive as to the facts therein and valid in respect to the other kind of property, controvered in respect to wills of personal estate only, upon the ground that the testator was sane, and so upon the parties to the proceedings." In case the there may be two final adjudications, both supposed decree of the surrogate was affirmed or was to be verities, one affirming a will to be valid and versed on questions of law, by the circuit judge, the other affirming it to be void. And in case a an appeal could be taken to the Court of Chancery will relating to realty and personalty is admitted to (2 R. S., 609, secs. 97, 100). Under these statutes probate in the Surrogate's Court and the decision it is clear that a judgment entered on a verdict, is reversed by the Supreme Court and the issues establishing a will, after a trial of issues of fact are tried before a jury, which are found in favor of before the Circuit, was not conclusive upon the the validity of the will, upon which an adjudicabeir, to whom the right remained to contest the tion is entered by the Surrogate's Court decreeing validity of the devise in an action of ejectment, and the probate to be valid, the heir may, notwithstandby chapter 238, L. 1853, he was authorized to con- ing, retry the question as to the realty, and possitest the validity of a devise by an action in parti- bly, as in the case at bar, obtain a verdict an, a tion.

judgment that the will invalid. But the remedy Under the Constitution of 1846 the statute au for this incongruous and absurd procedure by thorizing an appeal to a Circuit judge was changed which judgments diametrically opposed to each and an appeal was authorized to be taken to the other may be recovered in respect to the same will, Supreme Court, and in case the decision of the does not lie with the courts but with the Legislasurrogate was reversed upon a question of fact, the ture. We are compelled to hold that thie decree questions were directed to be tried before a jury entered upon the verdict of the jury in the Court (sec. 12, chap. 280, L. 1847). The statutes re of Common Pleas is not a bar to this action. mained in this condition until the adoption of the This action was not brought under section 2653A, Code of Civil Procedure, by which the Surrogate's Code of Civil Procedure, enacted in 1892, but was Court is made a court of record and is vested with brought four years prior to its enactment, under the power to probate wills relating to realty and section 1537 of the Code, and the provision of secpersonalty. By section 2626, C. P., the decree ad

tion 2653A, that 'the party sustaining the will mitting a will to probate is conclusive as to the shall be entitled to open and close the evidence and personally, unless it is reversed on appeal or re argument,” is not applicable to this case, and the voked by the surrogate; but the decree is not con court did not err in denying the appellant's motion clusive upon the heir, but is presumptive evidence to be given the right to open and close the case. only of the validity of the devise. (Code Civil

It is urged that the court eired in refusing to diProcedure, Section 2627.) When an appeal is rect the jury to find the second, third, fourth and taken to the Supreme Court it may affirm or reverse fifth issues of fact in favor of the contesting dethe decree, and, if modified or reversed upon a fendants. Upon reading the evidence, we are of the question of fact, a trial before a jury of the issues opinion that it required the court to submit every of l'act must be awarded. The provision of the Re

one of these issues to the jury, and that no error vised Statutes, that the decision to be entered upon was committed in refusing to direct a verdict, or in the issue so awarded shall be conclusive as to the denying a motion for a new trial on the ground personalty only, is not continued by this code, nor that it was contrary to the evidence. The learned do we find any provision stating the effect of it trial judge instructed the jury fully and carefully judgment so rendered.

in respect to the law relating to the issues submitted, By section 1537 of the Code of Civil Procedure and it was not error after the delivery of his charge the provisions of chapter 238, L. 1853, were con to refuse to reinstruct the jury on these issues in the tinued iv force, an and heir of a devisor is anthor- language of counsel as expressed in nearly fifty reized to maintain an action for the partition of land quests. The ninth and tenth requests, at folios apparently devised to another upon the ground that 1020 and 1021, are typical of all. By these rethe devise is void. In addition to these provisions quests the court was asked to instruct the jury any person interested in a will which has been ad- in respect to the rules of law relating to undue mitted to probate in this State may maintain an influence, which requests were declined. The action to cause the validity thereof to be determined court had already carefully instructed the jury (Code of C. P., sec. 2653A, enacted in 1892; Lony upon this issue at folios 966 et seq., and it was not v. Rodgers, 79 Hun, 4+1). It is apparent that un error to refuse to reinstruct the jury on the same vler our boasted reformed procedure a will relating subject in the language of counsel. Under sections to realty and personalty may be declared void be 970 and 1544 of the Code of Civil Procedure the

verdict of the jury was not merely for the informa applies to natural persons who are guilty of such tion of the court, but was conclusive until set aside misconduct. It is contined, however, to abuses or a new trial granted, and the Special Term, upon perpetrated in the line of duties assigned to them, its continuation of the trial, had no power to set and does not extend to any tort, wanton ness, or aside the verdict and find the facts contrary thereto. wrongful act the employes may commit in matters (Jones v. Jones, 120 N. Y. 589.) Our attention is not connected with the service of the railroad corcalled to thirteen exceptions to the admission and poration. In the line of their assigned duties they exclusion of evidence in the appellants' twelfth stand in the place of the corporation; without point. To discuss each one of them and show why that line the corporation is bound by nothing they they were not well taken would unnecessarily pro- may do.' Railroad Co. v. Whitman, 79 Ala. 325. long this opinion, and it is, we think, sufficient to The same principle had been differently but very say that none of them calls for the reversal of this clearly expressed in Gilliam v. Railroad Co., 70 Ala judgment, entered upon the conclusion of a pro- | 268 — that if the employe, while acting within the longed and carefully conducted trial.

scope of the authority of the employment, do an act The judgments and order should be affirmed, injurious to another, either through negligence, with costs.

wantonness or intention, then for such abuse of All concur.

authority conferred upon him or implied in his employment, the inaster or employer is responsible iu

damages to the person thus injured. But if the LIABILITY OF COMMON CARRIER FOR

agent go beyond the range of his employment or TORTS OF SERVANTS.

duties, and of his own will do an unlawful act inGOODLOE V. MEMPHIS & C. R. R. Co., 18 S. R. 166. jurious to another, the agent is liable, but the mas

CASE in which a general discussion of the ter is not. The principle settled in these and A

liability of a common carrier for toris of its many other similar adjudications is not disputed, employes is decided by the Supreme Court of Alit

but its application to the cases as they occur gives bama in Goodloe v. R. R. Co. The facts in sul) rise to continued disputations. What is meant stance were that the plaintiff was injured, after by the words 'while acting within the range of having purchased a ticket at the defendant's oflice the authority of the employment of the servant, for transportation over its line, by a servant of the

is made the ground for contention in each defendant who was sculling on the platform of the But that seems, also, to be well settled depot. As the action of the defendant's servants on authority; and while it is often a matter of was not incident to the employment, the court held nice adjustment to the facts of a case, it has that the company were not liable. The opinion been made clear enough not to be of very difficult conteins an interesting discussion on this subject of application. It is said, on the point under conthe liability of a master for the torts of his servant, sideration, that the rule of the responsibility of the and the material part is as follows:

master for the acts of his servants, 'does not apply " The question presented has been well consid- simply from the circumstance that at the time ered by this and many other courts. It was re when the injury is inflicted the person inflicting it cently before us in the case of Lampkin v. Railroad, was in the employment of another ; but that, in 17 South. 448, in whicii, as the result of the authori- order to make the master liable, the act inflicting ties there cited, it was stated, as the well settled the injury must have been done in pursuance of an rule, that the carrier's obligation was to protect its express or nplied autho to do it. That is, it passengers against the violence and insults of its must be an act which is fairly incident to the emown servants and of strangers and co-passengers; ployment ; in other words, an act which the master that it contract exists between it common carrier has set in motion.

And generally, where and its passengers to use all reasonable exertion to

the injury results from the execution of the emprotect them from injury from fellow passengers ployment, the master is liable.' (2 Wood RR., Sec. and its agents in charge of the train. In :in earlier 316.) In explanation of the rule, this court long ago case it was said that 'the clearly established (loc- beld, as the result of the authorities examined and trine now is that railroad corporations are liable for cited, that when the servant is in the performance all acts of wantonness, rudeness, or force done or of his master's orders, or authorized acts, and in the caused to be done by their agents or employes, if doing thereof, conducts himself so negligently or done in and about the business or duties assigned unskillfully, that injury results to another, then the · to them by the corporation; and the rule of vindic- doctrine of respondeat superior applies, and the tive or punitive damages against such corporations master will be liable in an action on the case ; but for abuse by their employes of the duties and that for the acts of the agent, willfully and intenpowers confided to them is the same as that which I tionally done, without the command and authoriza





tion of the master, the servant, and not the master, another note of his a few days before the expiration is liable ; and that the rule has no application when of a year from the advance. Shortly after the exthe servant actually wills and intends the injury, or piration of the year, the bank again suspended paysteps aside from the purpose of the agency com ment: Held, that the advance to the bank was it mitted to him, and inflicts an independent wrong: voluntary assessment and not a loan, and could not (Cox v. Keahey, 36 Ala. 340.) So we find it held, be set off by B in an action against him on the that where a slave, being a passenger on a steam notes by the receiver of the bank. (Brodrick v. boat, was wounded by a gun negligently discharged Brown [Cal.]. 69 Fed. Rep. 497.) by the second engineer of the boat, the captain, in an action against him for the injury, was held not


-A secret conto be liable, because the discharge of the gun by tract between persons proposing to bil upon the the engineer was not an act done in the course of construction of a public work, by which their bids his employment or in the discharge of any duty to be put in, apparently in competition, but connected with the service. (McClenaghan v. Brock, really in concert, with the intention of securing is 5 Rich. Law, 17.) And where a servant employed high a price as possible, and dividing the profits, is to light fires in a house, lighted furze and straw in illegal, and contrary to public policy, and will not order to clean a chimney that smoked, and the be enforced, though one of the parties to it has sehouse caught fire therefrom and was destroyed, it cured the contract for the public work, and has exewas held, that the act of cleaning the chimney in' cuted the same, and received the profits,

(McMulthe manner stated was one outside the scope of her lan v. Hoffman, U. S. C. C. [Oreg. 1, 69 Fed. Rep. employment, and the master was not liable. (Mc- 509.) Kenzie v. McLeod, 10 Bing. 385.) And still again,

CRIMINAL LAW – in a recent case, where an employe who, being be

Defendant wils tried for murder, in killing one of bind in his accounts, was suspected of setting fire to the building in which he was employed, in order

two persons who attempted to arrest him without a to destroy the evidence of his default, we said that

warrant, and when there was no charge against himthere was no evidence tending to show, if the em

probably mistaking him for mother. The court, ploye did set fire to the building, that it was a

at vielendant's request, charged that is such were the negligent act of his, done while in the performance

case, and the killing was done while resisting such of his duty ; and that, if he did it at all, it was his

arrest, it would be, not murder, but manslaughter,

but added that if the killing was done in such a own tortious, wicked act, done outside the line of his employment, in which the defendant did not

way is to show brutality, barbarity, and a wicked participate, or, afterwards, in any manner ratify, and malignaut purpose, it would still be murder: and for which it was not in any manner responsible.

Held, that the modification was erroneous, as per(Collins v. Railroad Co. (Ala.), 16 South. 142.")

mitting the jury to return a verdict of guilty of murder merely because of the manner of the killing, even if they believed that otherwise the case

was one of manslaughter only, wliereas the proper Abstracts of Recent Decisions. inquiry was whether, at the time of the shooting,

such circumstances were present, taking them alBANKS AND BANKING – VOLUNTARY ASSESSMENT. — together -- including the mode of killing The F National Bank suspended business for lack made it a case of manslaughter, and not of murder. of funds, and was placed in charge of a bank ex

(Brown 1. C'nited States (U. S. S. C.), 16 S. C. aminer, who required that $50,000 should be raised | Rep. 29.) and placed in the bank before it could resume busi

FEDERAL COURTS -- ACTIONS BY NATIONAL BANK The stockholders, including one B, the presi

RECEIVERS. --The Federal courts have jurisdiction dent, thereupon raised this sum in amounts equal to

of actions brought by the receiver of an insolvent 50 per cent of their stock, and placed it in the

national bauk to realize its assets, irrespective of bank. The examiner caused entries to be made on

the citizenship of the parties; and it is immaterial the books indicating that this contribution was a

to such jurisdiction whether the action is brought voluntary assessment subject, after one year, to the

in the receiver's own name, its receiver, or by him liabilities of the bank, and permitted the bank to

in the name of the bank. (Linn County Nat. Bank B, at a meeting of the directors subse

v. Crawford, C. S. C. C. [Oreg. ) 69 Fed. Rep. 532.) quently held, protested against these book entries, but afterwards signed reports in which the $50,000 FEDERAL COURTS

OF STATE was included as surplus. At the time of the ad

A single verdict and judgment in vance the bank held two notes of B, and discounted | ejectment in Pennsylvania uot being conclusive in










the State courts, a decision by the Supreme Court LANDLORD AND TENANTS — DEFECTIVE PREMISES. of the State upon the construction of a will, in a A landlord letting a house with a warranty of first ejectment snit, is not conclusive in a Federal the safety and sufficiency of the ceiling is liable court, but is entitled to peculiar regard as a prece- (not on the warranty itself, but on the ground of dent. (Barber v. Pittsburgh, Ft. W. & C. Ry. Co., | negligence) for an injury to the tenant's infant U. S. C. C. [Pem.). 69 Fed. Rep. 501.)

child, resulting from the fall of the ceiling upon it.

(Moore v. Steljes, U. S. C. C. [N. Y.], 69 Fed. Rep. FEDERAL OFFENSE

An indict- | 518). ment which charges that the defendant did aid in


INSANITY.-If one buying, receiving and selling a draft, “knowing whose life is insured kills himself when his reasonthat said draft had been stolen and embezzled," is insufficient, under Rev. Stat, $ 5470, which im- ing faculties are so far impaired by insanity that he poses a penalty for aiding in buying or receiving is unable to understand the moral character of his articles of value stolen or embezzled from the mail,

act, even if he does understand its physical nature, since it fails to allege any offense; the acts of steal- consequences, and effect, his self-destruction will

not, of itself, prevent a recovery on the policy. ing and embezzling being distinct, and inconsistent

But by capacity to understand the “moral characwith each other. (United States v. Thomas, L. S.

ter of his act” is to be understood a capacity to D. C.Tal.), 69 Fed. Rep. 588).

.understand what he was doing, and the conseGUARANTY


quences thereof to himself, his character, his family an Jowa merchant, having been refused credit by

and others, and to comprehend the wrongfulness of

the aci, as a sane complainants in Chicago, procured from defendant

man would. (Ritter v. Mutual

Life Ins. Co. of New York, U. S. C. C. [Penn.], 69 a letter addressed to them, and offering to guaranty

Fed. Rep. 505.) payment of such purchases as V might make for his fall and winter trade. On the strength of this PUBLIC LANDS

RIGHTS.—A homeletter, plaintiffs sold N goods, and, on the same stead settler whose land has been included by the day, wrote to defendant, acknowledging the receipt government in allotments made to Indians in fulfillof his letter “guarantying whatever V may pur ment of treaty stipulations, but who has not perchase of us for his fall and winter stock," and say- fected his right by making proof in the land office ing, "lis purchases up to this time amount to of full compliance with the law, is not entitled, in $3,390.50, which we are getting ready for ship- a suit against certain Indians and an army officer, ment." Hell, that, in view of the situation of the who threatens to put them in possession, to a d:parties, this letter was a valid notice of acceptance cree declaring him to be the owner of the land, and of the offer of guaranty, so as to make the guaran- quieting his title. But, as a bona fide settier and tor liable for the amount of the purchases. (Hart v. owner of the improvements, he is entitled to an inMinchen, U. S. C. ('. (Iowa). 69 Fed. Rep. 320.) junction protecting him in his possessory rights

until the questions of law involved can be deterMORTGAGE FOLECLOSURE

mined in a court of competent jurisdiction. (La - Under i statute declaring that a mort- Chapelle v. Bubb, U. S. C. C. [Wash.], 69 Fed. Rep. gage of real property shall not be deemed a convey- 481.) to enable the mortgagee to recover RAILROAD COMPANIES NEGLIGENCE.

A railpossession without foreclosure and sale (Gen. Laws Or. 1845, 64, p. 228, 323), the mortgagee has no

road company is not excused from taking other right to take the rents, profits and crops before he proper precautions by compliance with statutory rehas secured possession by actual foreclosure and quirements as to giving signals at crossings. (Clark sale according to law; and it is not in the power of

v. Canadian Pac. Ry. Co., U. S. C. C. [Vt.], 69 Fed. the parties, even by express stipulation, to give him Rep. 543 ) such right. Therefore, il provision in a mortgage RAILROAD) (OMPANIES NEGLIGENCE. — The only of farm lands that, in case foreclosure proceedings duty which a railroad company owes to those who, are instituted, a receiver may be appointed to take without its knowledge or consent, enter upon its the rents, profits and crops, and apply them on the track, not at a crossing or other public place, is not debt, in no wise enlarges the mortgagee's rights. wantonly and unnecessarily to inflict injury upon In al proper case, the court will appoint il receiver them after its employes have discovered them. It without any such stipulation ; and, in any other owes them no duty to keep a lookout for them becase, it will not appoint one, whatever the parties fore they are discovered. (St. Louis & S. F. Rs. may bave agreeil. (Thomson v. Shirley, UT. S. ('. C. ('0. v. Bennett, U. S. C. ('. of App., 69 Fed. Rep. [Oreg.]. 69 Feil. Rep. 484.)











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form or in other forms into which it has been conTIOS:- Where a junior mortgagee is a party (lefend verted. ("pokane Comty v. First Nat. Bank of ant to a foreclosure bill in which there is a prayer Spokane (U. S. C. C. of App. 1, 68 Fed. Rep. 979.) that he be decreed to redeem, and a sale is ordered in default of payment, declaring the senior mort

WATER COMPANIES gagee's right to redeem forever barred, a similar

A private corporation which procures order as to the right of redemption by the junior from a municipal corporation a franchise for supmortgagee is not substantially or even formally plying the latter and its inhabitants with water, necessary He will have a right to redeem without

and by virtue of which franchise it is permitted to such order, but, if he fail to assert the right, and

and does use the streets and alleys of such municistand by while the sale is made and confirmed, he

pal corporation in the carrying on of its business, inust be deemed, in equity, to have waived his

becomes thereby affected with a public use, and right. (Simmons v. Burlington, C. R. & N. Ry. Co., assumes a public duty. That duty is to furnish U. S. S. C., 16 S. C. Rep. 1.)

water at reasonable rates to all the inhabitants of

the municipal corporation, and to charge each inRAILROAD MORTGAGES. Where a railroad mort

habitant, for water furnished, the same price it gage is expressly to secure interest as well as prin charges every other inhabitant for the same service cipal, and both are equally within the positive

under the same or similar conditions. (American terms of the condition, a default in payment of the

Water-works Co. v. State [Neb. 1, 64 N. W. Rep. interest gives the mortgagee a right to bring a fore

71..) closure suit, especially where, by the express terms of the instrument, he is forbidden to proceed for the collection of interest by ordinary judgment and execution at law. (Pennsylvania Co. for Insurance

New Books and New Editions. on Lives and Granting Annuities v. Philadelphia & R. R. Co., U. S. C. C. [Penn.], 69 Fed. Rep. 482.)


OF QUESTION AND ANSWER. By Charles T. Boone, ERTY – In an action to recover real property,

author of " Law of Corporations."

- Real Propbrought under the Code of North Dakota, which erty,” “ Mortgages, ” “ Code Pleading." has abolished the fictions of the old action of ejectment, the judgment is a bar to a subsequent action

The foundation of this work is a series of quesonly when the titles and defenses are the same, avd tions propounded by the Supreme ('our of Caliis therefore not a bar where the defense is founded

fornia during the last decade to candidates for adon a title acquired subsequent to the judgment, and

mission to practice in the courts of that State. The which was not and could not have been set up in the earlier action. (Northern Pac. R. Co. v. Smith,

answers to the questions which have been prepared U. S. C. C. of App., 69 Fed. Rep. 579.)

aim at accuracy and endeavor to cover the points

involved in the question submitted. In addition to SALE ON CONSIGNMENT. — A shipment of goods this most valuable feature of the work is the cita"on consignment” to one to whom plaintiff had

tion of authorities after each answer. The work is previously been selling, to be held as the property

of convenient size, comprehensive, and covers all of plaintiff and subject to his order until sold, the

the general principles of law. The arrangement of price at which they were listed to the consignee to be remitted as fast as they were sold, and when he

the book is excellent and the citations after the took notes in lieu of cash, these notes to be remit answer aid the student to turn from a mere everyted as collateral for his account, does not constitute

day matter of learning so much and enables him to al sale. (Vermont Marble Co. v. Brow (Cal.], 41

obtain al reason for everything which the book conPac. Rep. 1031.)

tains. The work is divided into fourteen chapters, TRISTS — FOLLOWING

The and contains a table of cases cited. The work conowner of trust property intrusted to another, by

tains over

two hundred pages of questions and whom it has been misapplied, is not entitled to a

answers and has a very complete index. general lien upon the assets of the trustees for the value of such property, and can only follow the

Published by Reuben's Old Law Book House, San same so far as it can be tracel, either in its original Francisco, Cal.



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