« AnteriorContinuar »
claim was filed. The language of the Court of Appeals WILL
- HOLOGRAPH -- EXECUTION OF — ACKNOWLin Corkings v. State, 99 N. Y. 491, 499, is particularly EDGING SIGNATURE.-Each of the four statutory requis applicable to this care. It was there said: “When the sites for the execution of a will must be complied with. State, to a just claim, such as this is found to be, has The acknowledging of the "making of the signature" no better or other defeuse than the statute of limita- will not supply the want of the signing by the testator. tions, it should at least, both upon the law and the | At common law, if a person wrote his name in the facts, establish that defenso with reasonable clearne38 body of a will or coutract, with intent to execute it in aud certainty." Second Division, June 2, 1891. Yaw that manner, the signature so written was as valid as v. State. Opinion by Follett, C.J.
though subscribed at the end of the instrument.
Merritt v. Clason, 12 Johns. 102; 8. L., sub. nom. ClaLIEN-MARITIME-WHEN NOT LOST BY RECEIVING son v. Bailey, 14 id. 484; Peuple v. Murray, 5 Hill, 468.
- UNFINISHED VESSELS - PLACE OF CONTRACT Caton v. Caton, L. R., 2 H. L. 127; 2 Keut's Com. 511; - FERRY-BOATS. — (1) In July, 1884, W. S. & Co., 1 Dart V. & P. (6th ed.) 270; 1 Jarm. Wills (Big. ed.) shipbuilders, contracted with the H. L. & I. Co. to con- 79. We sball assume, without deciding, that under struct two iron ferry-boats. Part of the materials were the laws of New Jersey a will may be legally executed obtained from plaintifts, terms cash, but were not paid if the name of the testator is written by him in the for. In November, 1884, W. S. & Co. seut the plain- body of the instrument with intent to 80 execute it. tiffs their notes at three and four months, and in De- | The statute of that State, which prescribes tbe mode cember made a geveral assignment. W. S. & Co. were in which wills shall be executed, provides: “All wills iusolvent at the time of giving the notes, and know it, and testaments
shall be in writing and shall and had previously transferred the unfinished boats be signed by the testator, which signature shall be and materials to the H. L. & I. Co. Held, that tho made by the testator, or the making thereof acknowlvotes were sent with fraudulent intent and relieved edged by him, and such writing declared to be his last plaintiffs from the extension of credit which they pur will in the presence of two witnesses present at the ported to create. (2) Hulls on the stocks in the course same time, who shall subscribe their names thereto as of completion are unfinished vessels, and within the witnesses in the presence of the testator." Under this contemplation of the statute subject to lien of debt for statute it was held (In ro MoElwaine, 18 N. J. Eq. 499) work done and materials furnished in building them. that "Four things are required: First, that the will (3) Plaintiff was a corporation doing business in Phila- sball be in writing: secondly, that it shall be signed delphia, and the good were there shipped to the build-by the testator; thirdly, that such signature shall be ers and delivered to them at Newburgh in this State. made by the testator, or tbe making thereof acknowl. Held, that the debt, within the meaning of the statute, edged by him in the presence of two wituesses; was not contracted until the iron was delivered, and fourthly, that it shall be declared to be his last will in then was contracted at the place of delivery. (4) Ferry- the presence of these witnesses. Each and every one boats are within the term vessels as used in the stat- of these requisites must exist. They are not in the alute. Second Division, June 2, 1891. Phæniz Iron Co. teruative. The third requisite contains an alternative, v. The Vessels "Hopatcing," et al. Opinion by Brad. but one of these alternatives must exist. The second ley, J.
requisite, the signing by the testator, must exist. The
second alternative of the third, to-wit, that he acPATENTSJURISDICTION OF STATE COURTS.-A pát- knowledge making of the signature,' will not supply entee of a corset clasp entered into an agreement with the want of the second. Where there is no proof as to plaintiffs, granting them a license to take and sell it the making of the signature, such acknowledgment is upon a royalty, she agreeing not to license more than sufficient evidence that he made it, and would prove one other person without their consent. She issued compliance with the requisite of signing by him. But the second license and then assigned the patent. In ) wben it is clear that the testator did not sigu the will an action to restrain defendant from making and sell- this acknowledgment is not sufficient. The words of ing the patented article, held, that as the validity of the act are clear, and the object is equally clear, and the patent and the license were admitted, there was requires this construction to the words." This lanpractically no confliot of claim other than arose upon guage was used in respect to a will to which the name the construction of the license to plaintiff, and the of the testatrix was subscribed by one of the subscribcase was properly within the jurisdiction of the State / ing witnesses at her request, in her presence and in the court. Defendant iv manufacturing and selling the presence of both subscribing witnesses. After this patented article was not a wrong-doer and trespasser was done the testatrix said, " that was her name and against the rigbts acquired by the plaintiffs by the li- seal," but did not acknowledge it be her signature, conse granted to them. Second Division, june 2, 1891. wor did she then declare that the instrument way her Mayer v. Hardy. Opinion by Bradley, J.
will, and it was held not to have been executed in ao
cordance with the statute. Whenever the name of a WILL-CONSTRUCTION.-By the will of testator plain- testator appears, whether in the body or at the end of tiff was disinherited and specifically exoluded from a will, it must have been written with intent to exethe benefits of any of its provisions. By section 16 the cute it, otherwise it is without force. When a testator, residuum of the estate was divided into six shares, to or the maker of a contract, subscribes it at the end be held in trust by the executors, the first to be applied and in the manner in which legal instruments are usuto the use of testator's daughter Sarah for life, then ally authenticated, a presumption arises that the sig. for ber sister Catharine for life, and then the share to nature was affixed for the purpose of creating a valid be paid to the next of kin of his first wife's blood, with instrument. But when the name is written pear the a provision that any invalid gifts, etc., should be ad beginning of the document, where as a rule names are ded to this "residue." By section 40 he disposed of inserted by way of description of the person who is to any legacy, devise, etc., lapsing or failing for any cause, execute it, and rarely as signaturos, it must, before it and section 41 directed that all provisions which should can be beld to have been inserted for the purpose of be held illegal should be stricken out and not con- validating the instrument, be proved to have been sidered as affecting the valid provisions. Held, that written with that intent. The record contains no eviplaintiff bad no case as he could take nothing even dence tending to show that Mrs. Booth, directly or inthough certain provisions imposed upon the bene- directly, by word or gesture, referred to her name in ficiaries by the thirty-ninth section were void. Second the first line of the paper as her signature, nor is there Division, June 2, 1891. Opinion by Haight, J. 37 St. evidence of any act on her part from which it might Rop. 919, affirming 26 id. 966.
be iuferred that the name there written was intended to be in execution of a completed will, and her simple on property of another, which is destroyed without declaration to Mamie Clifford, one of the subscribing the fault of either party, can recover nothing; and, on witnesses, “This is my will, take it and sign it,” stand- the other hand, that one who has advanced payments ing alone, is insufficient to sustain a finding or verdict on account of labor and materials furnished under that the name “ Cecilia L. Booth," written by her in sucb circuinstances cannot recover back the money. the first line of the document, was there written with Appleby v. Myers, L. R., 2 C. P. 652; Navigation Co. intent that it should have effect as her siguature in v. Rennie, L. R., 10 id. 271. One who has advanced final execution of a will. We are referred by the money for the instruction of his son in a trade cannot learned counsel for the appellaut to Iu ro Higgins, 94 recover it back if he who receives it dies without givN. Y. 554; In re Phillips, 98 id. 267; In re Huut, 110 ing the instruction. Whinoup v. Hughes, L. R., 6 C. id. 278, in which it was held that when a testator sub- P. 78. But where oue dies and leaves unperformed a scribes a will at the end and exhibits it and the signa- contract which is eutire, his administrator may reture to the subscribing witnesses, declares it to be his cover auy installments which were due ou it before his last will and testament, and requests them to sigu it death. Stubbs v. Railway Co., L. R., 2 Exch. 311. In as witnesses, it is a sufficiont acknowledgment of the this country, where one is to make repairs on the siguature. Those cises are quite different from the house of another under a special contract, or is to furone at bar, in this, the signatures having been sub. nish a part of the work and materials used in the erecscribed at the end, in the usual way in which instru- tion of a house, and his contract becomes impossible ments are finally authenticated, the regal presumption of performance on aocount of the destruction of the arose that the signatures were written for the purpose house, the rule is uniform, so far as the authorities of fivally executing the documents, but, as we have be. have come to our attention, that he may recover for fore showil, there is no legal presumption arising from what he has done or furnished. Iu Cleary v. Sohier, the face of this instrument that the name was written 120 Mass. 210, the plaintiff made a contract to lath and as a siguature, nor is there evidence outside of the pa- plaster a certain building for forty couts per square per from which such an ijference oan bo safely draw). yard. The building was desiroyed by a fire which was It has been the object of the statutes of the various an unavoidable casualty. The plaintiff had lathed the States, prescribing the mode in which wills must be building and put on the first coat of plaster, and would executed, to throw such safeguards around those trans. have put o! the second coat, according to his contract, actions as will prevent fraud and imposition, and it is if the building had not been burned. He sued on an wiser to construe these statutea closely, rather than implied assumpsit for work done and materials found. loosely, and so open a door for the perpetration of the It was agreed that, if he was entitled to recover any mischiefs which the statutes were designed to prevent. thing, the judgment should be for the price charged. Second Division, June 2, 1891. Matter of Booth. It was held that he could recover. See also Lord v. Opinion by Follett, C. J.
Wheeler, 1 Gray, 282; Wells v. Caluan, 107 Mass. 514, 517. In Cook v. McCabe, ubi supra, the plaintiff recovered pro rata under his contract; that is, as weun
derstand, he recovered on an implied assumpsit at the ABSTRACTS OF VARIOUS RECENT
contract rate. In Hollis v. Chapman, 36 Tex. 1, aud in DECISIONS.
Clark v. Franklin, 7 Leigh, 1, the recovery was a proportional part of the contract-price.
To the same efBUILDING CONTRACTS - CONSTRUCTION
fect are Schwartz v. Saunders, 48 III. 18; Rawson v. TION BY FIRE.-For a certain sum defendant agreed Clark, 70 id. 656, and Clark v. Busse, 82 id. 515.
The to contribute certain labor and materials toward the
same principle is applied to different facts in Jones v. erection of a house on land of plaintiff. Defendant's Judd, 4 N. Y. 411, and in Hargrave v. Conroy, 19 N.J. work was to be done at a certain time. Shortly before Eq. 281. If the owner in such a case has paid in adcompletion it was destroyed by fire. Held, that the vance, he may recover back his money, or so much of agreement was on an implied condition that the build
it as was an overpaymevt. The principle seems to be ing should continue in existence, and that having been that when, under an implied condition of the contract, destroyed by inevitable accident, be was not bound to the parties are to be excused from performance if a build another, or to do any thing further under his certain event happens, and by reason of the happening contract. In such case defendant can recover for work of the event it becomes impossible to do that which and material done and furnished on an implied as- was contemplated by the contract, there is an implied sumpsit at the contract rate, plaintiff to be allowed for
assumpsit for what has properly been done by either all payment made. What are the rights of the parties of them; the law dealing with it as done at the rein regard to what has been done in part performance quest of the other, and creating a liability to pay for it of a contract in which there is an implied condition its value, to be determined by the price stipulated in that the subject to which the contract relates shall
the contract, or in some other way if the contractcontinue in jexistence, and wbere the contemplated price cannot be made applicable. Where there is a biwork cannot be completed by reason of the destruction lateral contract for an entire consideration moving of the property without fault of either of the parties, from each party, and the contract cannot be peris in dispute upon the authorities.
The decisious in formed, it may be held that the consideratiou on each England differ from those of Massacbusetts and of side is the performance of the contraot by the other, most of the other States of this country. There the and that a failure completely to perform it is a failure general rule stated broadly seems to be that the loss of the entire consideration, leaving each party, if there must remain where it first falls, and that neither of the bas been no breach nor fault on either side, to his imparties can recover of the other for any thing done un- plied assumpsit for what he has done. Mass. Sup. Jud. der the contract. In England, on authority, and upon Ct., May 19, 1891. Butterfield v. Byron. Opinion by original grounds, not very satisfactory to the judges of Knowlton, J. recent times, it is held that freight advanced for the transportation of goods subsequently lost by the perils CARRIERS-OF PASSENGERS—“ CONTRACT TICKET of the sea cannot be recovered back. Allison v. Iusur- EXEMPTING FROM LIABILITY-LEX LOCI.-Upon the ance Co., L. R., 1 App. 209, 226; Byrne v. Schiller, L. face of a steamship ticket issued in England, entitled R., 6 Exch. 319. In the United States and in continen
contract ticket," appeared notice that the owners tal Europe the rule is different. Griggs v. Austin, 3 of the ship would not be responsible for loss or damPick. 20, 22; Brown v. Harris, 2 Gray, 359. In England age to baggage, and on the back was a stipulation, to it is held that one who has partly performed a contract which attention was called on the face, that the com
pany would not be liable for the loss of or injury to back because it did not purport to be a contract, but a luggage "arising from
negligence of the mere check giren as evidence of his right to carriage. company's servants." It contained also nearly two Iu later English cases it is said that this decision went quarto pages of printed matter, minutely describing to the extreme liinit of the law, and it has repeatedly the rights and liabilities of the parties during the voy- been distinguished from cases wbere the ticket was in age. Held, that one who has travelled on such ticket, a different form. Parker v. Railway Co., 2 C. P. Div. although he has not read or sigued it, cannot recover 416, 428; Harris v. Railway Co., IQ. B. Div. 515; Burke for damage to his baggage by the negligence of the v. Railway Co., 5 C. P. Div. 1. The passenger in the steamship's servants. Such contract being valid in last-mentioned case bad a coupon ticket, and it was England, where made, will be enforced in Massachu-held that he was bound to know what was printed as a setts, altbough, if made in the latter place, it would be part of the ticket. Steers v. Steamship Co., 57 N. Y.1, void as against public policy. The principal question is in its essential facts almost identical with the case before us is whether the plaintiff, by reason of his ac- at bar, and it was held that the passenger was bound ceptance and use of his ticket, shall be conclusively by the conditions printed on the ticket. Iu Quimby beld to have assented to its terms. It has often v. Railroad Co., ubi supra, the same principle was apbeen decided that one who accepts a contract and pro- plied to the case of a passenger travelling on a free ceeds to avail himself of its provisions is bound by the pass, and no sound distinotion can be made between stipulations and conditions expressed in it, whether he that case and the case at bar. We are of opinion that reads them or not. Grace v. Adams, 100 Mass. 505; the ticket delivered to the plaintiff purported to be a Iusurance Co. v. Buffum, 115 id. 343; Rice r. Manu-contract, and that the defendant corporation bad a facturing Co., 2 Cush. 80; Hoadley v. Transportation right to assume that he consented to its provisions. All Co., 115 Mass. 304; Insurance Co. v. Railroad Co., 72 these provisions are equally binding on him as if he N. Y. 90. This rule is as applicable to contracts for had read them. The contract being valid in Eugland, the carriage of persons or property as to contracts of where it was made, and the plaintiff's acceptance of it any other kind. Grace v. Adams, ubi supra; Railroad under the circumstances being equivalent to an express Co. v. Chipman, 146 Mass. 107; Parker v. Railway Co., assent to it, and it not being illegal or immoral, it will 2 C. P. Div. 416, 428; Harris v. Railway Co., 1 Q. B. be enforced here, notwithstanding that a similar conDir. 515; York Co. v. Railroad Co., 3 Wall. 107; Hill tract made in Massachusetts would be held void as v. Railroad Co., 73 N. Y. 351. The cases in which it is against public policy. Greenwood v.Custis, 6 Mass. 358; held that one who receives a ticket which appears to Forepaugh v. Railroad Co., 128 Pe Bt. 217, and cases be a mere check showing the points between which he cited; In re Missouri S. S. Co., 42 Ch. Div. 326, 327; is entitled to be carried, and which contains conditions | Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 on its back which he does not read, is not bound by U. 8. 397. Mass. Sup. Jud. Ct., May 19, 1891. Fonseca such conditione, do not fall within this rule. Brown v. Cunard S. S. Co. Opiniou by Knowlton, J. v. Railway Co., 11 Cush. 97; Malone v. Railroad Corp., 12 Gray, 388; Henderson v. Stevenson, L. R., 2 H. L. CONSTITUTIONAL LAW - INTER-STATE COMMERCE 8c. 470; Quimby v. Vanderbilt, 17 N. Y. 306; Railway | PEDDLERS.—The charter of the city of Bloomington, Co. v. Stevens, 95 U. S. 653. Such a ticket does not which confers on the commou council power to license purport to be a contract which expressly states the and tax hawkers and peddlers, and the ordinances rights of the parties, but only a check to indicate the passed pursuant thereto, imposing a license tax, in so route over which the passenger is to be carried, and he far as they operate on persons soliciting orders for is not expected to examine it to see whether it con- goods for a principal iu another State, are void, being tains any unusual stipulations. The precise question in contravention of the Federal Constitution, vesting in the present case is whether the contract ticket" in Congress the authority to regulate commerce bewas of such a kind that the passenger taking it should tween the States. We are unable to distinguish this have understood that it was & contract containing case, in principle, from Robbins v. Taxing Dist., 120 stipulations which would determine the rights of the U. S. 489. In that case Robbins was soliciting trade in parties in reference to his carriage. If so he would be Temessee for a firm in Cincinnati, Ohio; and it was expected to read it, and if he failed to do so he is bound held that a law of Tennessee requiring him to take out by its stipulations. It covered with print and writing a license in order to transact bis business was in conthe greater part of two large quarto pages, and bore flict with that clause of the Constitution of the United the signature of the defendant company, affixed by its States which gives to Congress the power to regulate agent, with a blank space for the signature of the pas- commerce between the States, and therefore poid. senger. The fact that it was not signed by the plaintiff Substantially the same class of goods was there sought is immaterial. Quimby v. Railroad Co., 150 Mass. 365, to be sold as is here sought to be sold; only there, it aud cases there cited. It contained elaborate provis- would seem, the attempt to sell was at wholesale, ious in regard to the rights of the passenger on the while here it was al retail. But that is not dwelt upon voyage, and even went into such detail as to give the as a matter of any significance in the opinion in that bill of fare for each meal in the day for every day of case; and when it is reflected that it is the locality of the week. No one who could read could glance at it the sales with reference to the locality of the ownerwithout seeing that it undertook expressly to prescribe ship of the goods, and not the quantities of the goods the particulars which should govern the conduct of soid or the number of persons to whom sold, that dethe parties until the passenger reached the port of des- termines whether given sales are to be regarded as betination. In that particular it was entirely unlike the longing to inter-State commerce, it is important to pasteboard tickets which are commonly sold to pas- see how it could be. It is manifest that in that case sengers on railroads. In reference to this question the the court must have regarded the license feo as in the same rules of law apply to a contract to carry a passen
Bature of a tax, as contradistinguished from a mere ger as to a contract for the transportation of goods. police regulation imposed for the protection of the There is no reason why a consignor who is bound by public against the harmful tendency, to the citizens of the provisions of a bill of lading which he accepts the district, of the business itself, as the Supreme without reading should not be equally bound by the Court of Pennsylvania, in Com. v. Gardner, 133 Pemn. terms of a contract in similar form to receive and St. 284, held that a license regulation in regard to transport him as a passenger. In Henderson v. Steven- bawkers and peddlers is; for where the business itself $011, ubi supra, the ticket was for transportation a short mily be regulated or suppressed in a community bedistance from Dublin to Whitehaven--and the pas- cause of its inherent harmful tenilency to the citizens senger was held not bound to read the notice on the of such community, it may be regulated by a license
without regard to the locality of the property in which because of the fact that he had in his possession, ou
testator or intestate is not barred by the statute of
limitations upon a refusal to refer, so as to deprive the CRIMINAL LAW-JURISDICTION OF FEDERAL COURTS creditor of the right to compel the executor to acBRINGING STOLEN PROPERTY WITHIN JURISDIC
count. The surrogate ordered the administratrix to TION.--Under the act of Congress of September 4, 1890, aooount. It was held by the Court of Appeals in Moextending the criminal jurisdiction of the Federal Nulty v. Hurd, 72 N. Y. 518, that a judgment against courts to offenses “committed upon any vessel regis- a deceased person, although disputed or rejected by tered or enrolled under the laws of the United States,
bis personal representatives, need not be sued over in and being on a voyage upon the waters of any of the order to authorize a decree for its payment by the surgreat lakes,"
," " or any of the waters connecting any of rogate. It this be so, it is difficult to see how the the said lakes," such courts have no jurisdiction of a
claim arising upon the judgment can be barred by the larceny committed upon a steam-barge while lying in
statute of limitations, upon a refusal to refer. Iu Mothe Menominee river, a tributary of Lake Michigan, Nulty's Case, Church, C. J., says:
" We think that half a mile from its inouth. The United States courts there is a distinction between judgments agaiust the have no common-law jurisdiction in criminal matters,
teslator or intestate and other claims. A judgment is and can only take such jurisdiction as is given them an adjudication of the rights of the parties in respeot by statute; and the fact, ibat though the larceny was to the claim involved. It imports absoluto verity. It committed within the limits of a State, the stolen cannot be disputed in the sense contemplated by the property was not discovered in defendant's possession statute any more than a judgment against the adminuntil the vessel was upon Lake Michigan, will not aid istrators. In the same sense it is final and conclusive. their jurisdiction. The authorities in the State courts The statute recognizes a distinction by giving priority of this country and in England are in the main to the to judgments over each other according to date of reetfect that personal property stolen in one county, and covery and over other debts. § 27. This right of carried into another county, and found there in pos- priority might be interfered with if a new judgment session of the thief, will give the courts of the county was necessary in case of dispute, and tbus a right sewhere the goods are found the same jurisdiction to cured by statute might be seriously impaired or entry and punish the offender as is given to the author- tirely destroyed by the coustruction claimed. We are ities of the county where the original criine is perpe- of opinion therefore that a judgment against a de. trated. 2 Archb. Crim. Pr. (8th ed.), p. 1141; 1 Bish. ceased, even if disputed or rejected by ,executors or Crim. Law, $ 136 et seq.; Myers v. People, 26 Ill. 176; administrators, need not be sued over iu order to auStinson v. People, 43 id. 400. But the United States thorize a decree for its payment by the surrogate." It courts have no common-law jurisdiction in criminal is doubtful whether the other matters set up by way matters, and can only take such jurisdiction as is of defense could be tried by the surrogate. Stilwell v. given them by statutes. United States v. Worrall, 2 Carpenter, 59 N. Y. 414; McNulty v. Hurd, 72 id. 518. Dall. 384; United States v. Hudson, Cranch, 32; Eveu it cognizance could be taken of them, an account United States v. Coolidge, 1 Wheat. 415; United States between the parties would still be necessary. N. Y. v. Britton, 108 U. S. 193. It having been decided that Sup. Ct., Gen. Term, First Dupt., April 17, 1891. Matthe United States had no jurisdiction over crimes ter of Lyman. Opinion by Lawrence, J. committed upon the waters of the great lakes (Ea parte Byers, 32 Fed. Rep. 404), Congress in September FRAUD CANCELLATION OF CONTRACT last passed the law just quoted, to confer jurisdiction; REPRESENTATION. – Where is a suit to cancel a vouand jurisdiction can only be taken under that act, and tract for the purchase of land upon the ground of to the extent there granted. The jurisdiction taken fraud, the complaint alleges that defendant's president by common-law courts in cases of constructive larceny pointed out two lots as suitable for a warehouse and makes the possession of the stolen goods elsewhere elevator corporation, saying: “We are building our than in the jurisdiction where the crime of actual lar- belt railway right down
street, so that ceny was committed in respect to said goods a felonious you see we will pass that ground five hundred feet on possession as against the law of the place where its east side;” and “ We are at work on it uow; the he has such possession, but that rule does not apply to engineers are out there now at work at it;
" whereovurts that have no common-law jurisdiction. To hold upon plaintiff was induced to purchase the lots; and that tbis court has jurisdiction to try this defendant | alleges a failure to build the road a failure to aver
$$ 796, 797. Kaus. Sup. Co., May 9, 1891. City of Hutchinson v. Delano. Opiniou by Horton, C. J.
that the representations were false and fraudulently made, with intent to deceive, or an equivalent averment, 18 fatally defective. The averment that complainant relied upon the assurances of defendant to complete the belt road as he agreed to do at the time he sold the land will not supply a failure to set forth the facts necessary to constitute an assurance or promiee to complete the road, su the case of Lawrence v. Gayetty, 78 Cal. 126, the court declared that “the representations alleged to have been made are not as to existing facts, but consist in mere promises to perform certain acts in the future. The rule is that representations, to constitute sufficient grounds for relief, must be as to existing, material facts, or the affirmation of a matter in the future, as a fact, and not a inere opinion, statement of intention, or promise to do some act in the future; " quoting, among others, Pom. Eq. Jur., SS 877, 888. A “ promise," strictly apeaking, is not a "representation.” The failure to make it good may give a cause of action, but it is not a false representation wbioh authorizes a rescission of & contract like the present. The making of a promise, and having wo intention at the time of performing it, constitute a fraud for wbicb a contract may be resoiuded. 78 Cal., supra. The rule laid down in Railway Co. 5. Matthews, 77 Ala. 357, and followed in Bradfield v. Land Co., supra, as to promises and acts to be performed in the future, is abundantly sustained both by text-books and numerous decisions in other States. Pom. Eq. Jur., $$ 877, 888; 78 Cal., supra; Williams v. McFadden, 23 Fla. 143; Hexter v. Bust, 125 Penn, St. 52; Adams v. Schiffer, 7 Am. St. Rep. 202, note p. 216; 11 Colo. 15; McLain v. Buliner, 4 Am. St. Rep. 36, uote p. 41; Knowlton v. Keenani, 146 Mass. 86; Furnace.Co. v. Moffat, 9 Am. St. Rep. 727, and note pp. 729, 730; People v. Healy, 128 III. 9; Griel v. Lomax, 89 Ala. 420: Dawe v. Morris, 149 Mass. 188; Atwood v. Wright, 29 Ala. 316. The failure of the bill to aver that the representations made by Caldwell wero false and fraudulently made, with intent to deceive, or its equivalent of such averment, renders it fatally defective and subject to demurrer. Ala. Sup. Ct., April 30, 1891. Birmingham, etc., Co. v. Elyton Land Co. Opiniou by Coleman, J.
INDICTMENT — MOTION TO QUASH -- STENOGRAPHER IN GRAND JURY ROOM.–The fact that the grand jury, after voting not to find an indictment, but before reporting to the court, reconsidered their decision. and voted to find one without hearing any new evidence, is no ground for quashing the indictment. The fact that a stenographer who was in the emplog of the district attorney at the latter's request attended before the grand jury, and took notes of the testimony of a witness, is wo ground for quasbing an indictment, as such stenographer was an assistant to the district at. torney. U. 8. Circ. Ct., S. D. N. Y., Jan. 17, 1891. United States v. Simmons. Opinion by Benedict, J.
INJUNCTION-APPREHENDED NUISANCE--CITY SEWERS.—The apprehended fouling or pollution of a stream of water in the future by the sewage of a part of it cily from sewers, which have been legally,scientifically and properly constructed, but which has not yet taken place, and of which there is no immediate or imminent danger, and which depends upon a contingency that may not happen, does not present a case for an injurosion. Board v. Passaic (N. J., 1890), 20 Atl. Rep. 54; Citizens' Coach Co. v. Camden, etc., R. Co., 29 N. J. Eq. 299; Stitt v. Hilton, 31 id. 285; Delaware, etc., R. ('0. v. Central Stock-Yard, eto., Co., 43 id. 605; Hagerty v. Lee, 45 id. 255; Stoudinger v. City of Newark, 28 iul. 187; Merrifield v. Worcester, 110 Mass. 216; Brookline V. Mackintosh, 133 id. 215; Morgan v. City of Binghamton, 102 N. Y. 500; Dunn v. City of Austin (Tex., 1889), 11 S. W. Rep. 1125; High luj., $ 742; Wood Nuis.,
INNKEEPERS LIABILITY LOSS OF BAGGAGE. Where a transient guest of an hotel delivered his baggage to a porter to be checked for safe-keeping, the porter having no authority to check it without directions from the clerk, but doing it nevertheless, and the guest then pays his bill and leaves the hotel, the relation of innkeeper and guest is thereby terminated, and if the baggage is stolen during the guest's absence the innkeeper is not liable therefor. The commonlaw liability of innkeepers, except so far as modified by statute, is recognized and applied in this State. Rates of charges, and reasonable limitations upon their liability, may be fixed by special contract. A guest may also be guilty of such proximate contributory negligence as to exonerate inukeepers from responsibility. Lanier v. Youngblood, 73 Ala. 592; Story Bailm., $$ 483, 484; Story Cont., $$ 744-749. The strict common-law liability of inukeepers is for the protection of the goods of their guests, and while the relation of innkeeper and guest exists. The words of the common law were, eorum bona et catalla infra hospitia. Cayle's Case, 8 Coke, 324; Wilkins v. Earle, 44 N. Y. 172. The evidence in the present case shows that on each several visit of the plaintiff to the hotel, he was a guest and was entitled to all the protection of the common law. It is equally clear that this relation terminated after each stoppage. He was charged and paid the usual day rates without reduction, and no agreement was made as to future visits. When the plaintiff paid bis bill and left, the relation of inukeeper and guest ceased to exist. O'Brien v. Vaill, 22 Fla. 6:27. If when he paid his bill he had called for his valise, and it then had been stolen or lost, there could be no doubt of the liability of the defendant, or if he had requested the defendant or his authorized clerk to take charge of his baggage until his returu, agreeing to return within a short time, and the defendant or clerk bad consented to do so, a liability would have been assumed by such agreement. Story Bailm., $ 477, and note. Or if the plaintiff had not paid his bill, and the defendant had undertaken to retain the baggage to secure the plaintifl's debt to him, the defendant would be liable. Haas v. Taylor, 80 Ala. 465. Aud there may be cases, according to the particular circumstances, where an imukeeper may be liable for the goods of a guest, for a reasonable time, after the departure of the guest from the inn). Adams v. Clem, 41 Ga. 65. See criticism on this case in 22 Fla., supra. If a traveller, intending to become a guest at an hotel, meets a porter of the hotel at the depot or other usual stopping places for travellers, and intrusts his baggage with the porter, sent out for the purpose of soliciting patronage and caring for the baggage of such guest, the relation of intikeeper and guest for the protection of the baggage is thereby created; or if a guest, irtending to leave the hotel, sutrusts his baggage to a porter of tbe hotel whose duty it is to deliver the baggage at depot, the relation is continued until the delivery at the designated place. But these principles of law afford no protection to one who intrusts his baggage to a mere servant of the hotel not authorized to receive baggage, with directions to him to check it, for safe-keeping until he returns, then pays his bill to the clerk, and terminates his relation as guest, and gives no notice to the innkeeper or clerk that he expects to return, and that he has left his baggage to be taken care of until his return. “When a person came to an in with a hamper of hats, and went away and left them there for two days, and iu his absence they were stolen, 10 was held that he was not to be deemed a guest, and that the innkeeper was not liable for the loss thereof." Story Bailm.. $ 477. It is not in the power of a bailor to force upon auother the custody of bis zoods. It