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which the latter may devote it." Cooley Coust. Lim. ville Ass'u, supra, it was held that the statute author. 654. The use must be by the general public of the lo- izing rural cemetery associations to acquire land by cality, and not by particular individuals. McQuillen exercising the right of eminent domain was unconstituv. Hattoni, 42 Obio St. 202; Ross v. Davis, 97 Iud. 79.
tional and void, for the reason that the use was a priA use which may be monopolized or absorbed by the vate one. The court say: "The land is to be vested in few, and from which the general public may and trustees, with power to divide into lots, and sell these must ultimately be excluded, is in no sense a public lots to iudividual owners. It is difficult to see what
Land cannot be condemned for the purpose of interest the public will have in the lands or in their enabling those instigating the proceedings to parcel it
use. No right on the part of the public to buy lots or out to private individuals; nor is a use which is not bury their dead there is secured. The prices at which common to the public, and over which the State has the lots are to be sold are to be fixed by private agreesurrendered that control and regulation vecessary to
ment. The corporation is to be managed by trustees secure such common use, a public use. The use of elected by the lot-owners. The lots, or the rights of land for railways and turnpikes has been declared to the owners thereiu, are to descend as private property be a publio use, because it is open to all upon the
to the heirs of these owners; and by the act of 1874 payment of tolls which aro regulated by law, and the the owners may, by leave of the courts, sell their lots, law requires such ways to be kept open for use by the and put the proceeds in their pockets. The substanpublic impartially. As has been said, the question tial right of enjoyment of the property is vested in the whether the use is public or private depends upon the individual lot-owners, and the whole effect of the inright of the public to use the property, and to require corporation of these cemetery associations is to enable the corporation, as a common carrier, to transport
a number of private individuals to unite in purchasing passengers or freight over the sanie. Kettle River R. property for their own use, and that of their descendCo. v. Eastern Ry. Co. (Minn.), 43 N. W. Rep. 469; De ants, as a place of burial, and to secure a permanent Camp v. Railroad ('o., 47 N. J. Law, 47; Phillips v. management of it, through the instrumentality of trusWatson, 63 Iowa, 33; Clarke v. Blackmar, 47 N. Y. 156; tees appointed by themselves, and subject to no other Lewis Em. Dom., $ 166, It has been held that con- control, with the privilege, when they cease to use demnation proceedings cannot be resorted to to take their lots as a place of burial, to sell them, and receive lands for the construction of spur tracks which are the proceeds for their own benefit. It is argued that made for the accommodation of individual shippers. the property is to be used as a place of burial, and that In re Niagara Falls & W. Ry. Co. (N. Y.), 15 N. E. Rep. the burial of the dead is a public benefit, and there429; Railroad Co. v. Babcock (N. Y.), 17 id. 678; Rail- fore the use is public. But the answer to this arguroad Co. v. Wiltse (III.), 6 id. 49; Pittsburg, etc., R. ment is that the right of burial in these grounds is not Co. v. Besiwood Iron Works (W. Va.), 8 S. L. Rep. vested in the public, or in the public authorities, or 453. To justify the condemnation of lauds for a pri- subject to their control, but only in the individual lotvate corporation, not only must the purpose be one in owners. If the fact that it is a benefit to the public which the public has an interest, but the State must that the dead should be buried is sufficient to make a bave a voice in the manner in which the public may cemetery a publio use, the Legislature might author. avail itself of that use. In Gilmer v. Lime Point, 18 |ize A. to take the land of B. for a private burial place of Cal. 2:29, a public use is defined to be a use which cou- A. and his family. The fact that this land is taken for cerus the whole community, is distinguished from a the benefit of a number of individuals, for division particular individual. The use which the public is to among themselves or their grantees, for their own use bave of such property must be fixed and definite. The as a cemetery, makes the case no stronger than if taken general public must have a right to a certain definite for the benefit of a single individual.” Precisely the use of the private property on terms and for charges same may be said of a corporation formed under the fixed by law, and the owner of the property must be act in question. The lands owned by it are under the compelled by law to permit the general public to enjoy absolute control and dominion of the corporation. It it. It will not suffice that the general prosperity of the may sell to A., and refuse to sell to B., and by its sale community is promoted by the taking of private prop- to A. it excludes every other person from that parcel. erty from the owner, and transferring its title and Not only may it sell to A. for burial purposes, but it control to a corporation, to be used by such corpora- may sell to any other person for any purpose, if in its tion as its private property, uncontrolled by law as to judgment the lauds are not occupied or required for its use; in other words, a use is private so long as the burial purposes. Mich. Sup. Ct., Oct. 9, 1891. Board land is to remain under private ownership and con- of Health of Township of Portuge v. Van Hoesen, trol, and no right to its use or to direct its manage. | Opinion by McGrath, J. Morse, Long and Grant, JJ., mentis conferred upon the public. In re Eureka Ba- concurred with McGrath, J. Champlin, C. J., consil, etc., Co., 96 N. Y. 42. It is for the court to deter- curred in the result. mine whether or not the use is a public one.
In re Deansville Ass'lı, 66 N. Y. 569; In re New York, etc., EXECUTION EXEMPTION - INSURANCE R. C'v., 77 id. 248; City of Savannah v. Hancock (Mo.), FROM EXEMPT PROPERTY.-Under the Code of lowa, 3 S. W. Rep. 215; Pittsburg, etc., R. Co. v. Benwood section 3072, which exempts from sale on execution for Iron Works (W. Väl.), 8 S. E. Rep. 453; Tied. Lim. Po- debt the books and instruments of a practicing physilice Powers, $ 1214, p. 378; Cooley Const. Lim. 660. cian who is the head of a family, money arising on an This very question arose in Association v. Beecher insurance of the property against loss by fire is also (Coun.), 5 Atl. Rep. 353, and the court say: "The com- exempt. The purpose of the statute is to secure to the plaint alleges that the plaintiff is an association duly debtor who is at the head of the family-a physican organized under the laws of this State, for the purpose and surgeon in this case--the instruments, books and of establishing a burial ground; that it now owns one; other articles which enable him to practice his profesthat is desires to enlarge it, and that such enlargement sion. Its purpose is to secure the necessaries of life is necessary and proper. There is no allegation that food, raiment and shelter-to families who are depend. the land which it desires to take for such enlargement ent upon heads thereof, by securing to them the instruis for the public use in the sense indicated in this opin- ments and means by the use of wbich they are evabled ion. The demurrer, for the reason that the complaint to support their families. The exemption is pleinly does not set out any right in the plaintiff to acquire for the benefit of families of debtors, for those having title to the land of the defendants, otherwise than by no family can claim o exemption. The statute must their voluntary deed, must be sustained." In re Deaug. be liberally construed to carry out its purpose and
spirit. Bevan v. Hayden, 13 Iowa, 122; Davis v. Hum- the exemption of pension money, and some other casee phrey, 22 id. 139; Kaiser v. Seaton, 62 id. 463. The involving like questions, none of which are in conflict debtor in the case before us was authorized, under the with our conclusions in this case. Iowa Sup. Ct., Oct. statute, to hold the property in question exempt from 9, 1891. Reynolds v. Haines. Opinion by Beck, C. J. debts, if it were used for the purpose of his profession. It is plain that the use for which the property was kept INFANCY-SHERIFFS-AGE OF DEPUTIES.-In the abdetermined the question of its exemption. The books, sence of any statute making a deputy sheriff an officer instruments, etc., of the physician and surgeon may or making provisions as to his age, a minor may be apbe kept subject to the authority to change them, by pointed deputy, though the Constitution of North sale or otherwise, in order to procure those of better Carolina, article 6, sections 4 and 5, provides that an character or improved construction. It is plain that officer shall be twenty-one years old. In some of the tbe physician may sell his books, and replace them by States statutes have been enacted providing for the better ones. Such sale is a proper use of his books and appointment of general deputies and bailiffs, and preinstruments in his profession. Another proper use of scribing certain duties and liabilities arising out of the his books and instruments is their preservation from position, and the interpretations of these laws have injury and destruction. He may insure them to protect given rise to some confusion and apparent conflict in himself and family from loss from fire. The fact that the decisions of different States. In some of these they were insured would not make them subject to his States we fiud distinctions drawn by the courts as to debts. If they are destroyed by fire, the indemnity the duties, powers and liabilities of general deputies. secured by insurance stands in the place of the books. coming within the provisions of their statutes, and It is intended to preserve the physician's library by se. special deputies who are left as at common law to be curing means for its restoration after it is lost by fire. treated as the trusted servants or agents of the sherSurely that indemnity which is the indebtedness of iff. Proctor v. Walker, 12 Ind. 660. In North Carothe insurance company, or the money paid by it, lina both general and special deputies may be apstands in the place of the library, and ought to be, as pointed by the sheriff without writing, and when they it is, exempt from execution. The money due on the act with his assent or privity, they are either his genpolicy stands in the place of the property destroyed, eral or special agents as to the discharge of his minis. and this must be true whether the money takes the terial duties, and are accountable to him as such. An place of the property by contract, or acquired in individual can unquestionably constitute an infant his invitum by proceedings against the owner. It is plain agent, and subject himself to responsibility for all acts that a trespasser, by appropriating the property and of the latter within the scope of the agency. Whart. converting it to his own use, cannot make it subject Ag., $$ 13, 16; 1 Lawson Rights, Rem. & Pr., $ 6; Story to the payment of the owner's debts by holding the Ag., $7. In the absence of statutory restrictions, we value of the property the measure of the debtor's dam- see no reason why a minor, appointed by the sheriff as ages for the trespass, subject to garnishment by the his general or special deputy, should not have the creditors. If he could do this, it would be a conve- power to perform a mere ministerial duty of his office, nient method to defeat the exemptions of the statute. such as serving a summons issued in a civil action. As we before remarked, the object of the statute is to Murfree Sher., $ 71; McGee v. Eastis, 3 Stew. (Ala.) secure to the family the benefit of certain property. 307; Barrett v. Seward, 22 Vt. 176; Miller y. McMillan, These benefits cannot be enjoyed unless the debtor 4 Ala. 530; Ewell Evaus Ag. *40, *41. Indeed, Judge have the unrestricted use and control of the property, Story says (in a liote to section 149 of his work on free from liability for debts as long as it is owned and Agency): “There is a distinction between doing an used by him. When it is used for other purposes than act by an agent and doing an act by a deputy, whom the support of the family, it becomes liable for debts. the law deems such. An agent can only bind his But the change of the property into money will not principal when he does the act in the name of his indicate an immediate abandonment of the claim of principal But a deputy may do the act and sign his exemption to the money on the ground of a purpose own name, and it binds the principal, for the deputy to invest it in like or other exempt property. Until in law has the whole power of the principal.” This cian opportunity exists to make such investment, which tation is made not to give approval to the distinction is not a change of articles of exempt property, the drawn by him, but to show that the learned jurist debtor ought not to be presumed to abandon his considered a deputy as sustaining the relation of an claim. The debtor, as we have seen, has the authority agent to the officer who appoints him. If a deputy to change the articles of exempt property by sale and sheriff were by law constituted an officer, and the purchase, exchange or otherwise. He cannot be pre- mode of appointing him and inducting him into office Bumed to have aba!ıdoned his right to this authority were prescribed, as iu some of the States, our view of until he has had an opportunity to exercise it.
this case might be materially different. Guyman v. creditor cannot complain of its exercise. He is de- Burlingame, 36 Ill. 203; Murfree Sher., $ 72. The feated of no right thereby. The property is held free qualifications of an officer are clearly set forth in secof his debt, and he is not prejudiced by the change to tions 4 and 5 of article 6 of the Constitution, and it is the other like property. These doctrines and conclu- declared essential that he should be “twenty-one years sions find support in the following decisions of this old,” but we find no provision in our Constitution or court: Kaiser v. Seaton, 62 Iowa, 463; Mudge v. Lan- laws which restricts the right to appoint agents on the ning, 68 id. 641. See also cases cited in Kaiser v. Sea- one hand, or the liability for their acts on the other. ton, supra, and the following: Evans v. Harvester In Yeargin v. Siler, 83 N. C. 348. Justice Dillard for the Works, 63 Iowa, 204; Brainard v. Simmons, 67 id. 646; court Bilys:
“The rule in matters judicial is delegatus Leavitt v. Metcalf, 2 Vt. 342; Mulliken v. Winter, 2 non potest delegare, but in duties ministerial the officer Duv. 256; Tillotson v. Walcott, 48 N. Y. 188. Coun- may act in person or by deputy, of his own choice and sel for plaintiffs cite Wooster v. Page, 54 N. H. 125. It appointment.” We think that in the absence of any is not in harmony with our conclusions. We think statutory restriction the sheriff has the power to apthat the reasoning upon which it is based is not sound. point a minor his general as well as his special deputy, Other cases cited by the same counsel are not in con- and clothe him with the power of a bailiff, as to his flict with our conclusions. They are to the effect that ministerial duties, as effectually as he could constitute sales of exempt property, with no purpose to reinvest him his agent to attend to private business for nim as the avails in other like property, or to exchange the an individual. Broom Leg. Max. 619. The current of articles of exempted property, or are cases involving authority in this country sustains this view. It is true
that in the English case cited by counsel (Cuckson v. dissatisfied with tbe amount rendered. U. 8. Circ.
Mr. Whartou says in substance that the but reserves to itself at regular meetings the right to only qualification of the rule that infants may act as grant or refuse permission to keep and store such oils, agents, and bind their principals, is that the infant dependent upon whether it at such time deems the loagent must not be very deficient in mental capacity. cation and buildings suitable for such purpose, and the Whart. Ag., $15. N. C. Sup. Ct., Oct. 13, 1891. person presenting the petition “a proper person." It Jamesville & W. R. Co. v. Fisher. Opinion by further provides that the permission when granted Avery, J.
may be revoked at any time at the option of the
council.” Language better calculated to enable the LIBEL AND SLANDER--DAMAGES. –Where the pro- common council to arbitrarily control the business, prietor of a newspaper publishes, without inquiry as without any fixed or kuown rules, cannot well be im. to its authenticity, an item from a news agency, agined. The business of keeping, storing and dealing falsely stating that a certain named man and woman in such oils is a legitimate business, and every citizen of high respectability bave eloped, that the intimacy has an inherent right to engage in the business upon between them had for some time excited comment, equal terms with any other citizen, In the case of etc., he is guilty of reprehensible negligence, and Bills v. City of Goshen, 117 Ind. 221, an ordinance of though not guilty of malice the jury may, in an action the city requiring a license for carrying ou the busiagainst him for libel und slander, award punitive or ness of roller skating, and providing that such license exemplary damages. The publication of the article should be issued upon the payment into the city trenswas not prompted by any personal malice toward the ury of such sum of money “as the mayor or common plaintiff or the other persons mentioned. But the de- council shall determine in each particular case,” was fendant was guilty of reprehensible negligence in pub-held invalid, the objection being that a discretion was lishing it without making any effort to verify its truth. | lodged in the mayor or common council in fixing the The injury to the reputation of the plaintiff was prob- fee to be charged. In the opinion this language is ably insignificant, but the jury undoubtedly thought | quoted with approval from Horr & Bemis on Municithat a newspaper manager who would publish such an pal Police Ordinances: “The ordinance itself should article, one in which the good name of a decent
specify every condition of the license, and the officer woman was trailed in the mire, without any attempt should be merely intrusted with the duty of issuing at independent investigation to ascertain whether it licenses." In Yick Wo v. Hopkins, 118 U. S. 356, an was true or false, was guilty of a wauton act, and that ordinance of the city of San Francisco, prohibiting the the facts warranted such a verdict as would be an ex- carrying on of laundries without a permit from the ample to deter other newspaper managers from simi- board of supervisors, except in buildings constructed lar conduct. Reckless indifference to the rights of of stone, was held invalid. The court say: “It does others is equivalent to an intentional violation of not prescribe a rule and conditions for the regulation them, and in actions of libel, where the facts show the of the use of property for laundry purposes, to which publication of a defamatory article without any ex- all similarly situated may conform. It allows with cusable motive, and without any attempt to inquire restriction the use for such purposes of buildings of into the truth of the facts stated, the jury are author- brick or stone, but as to wooden buildings--constitutized, for the sake of public example, to award puni. ing nearly all those in previous use-it divides the tive or exemplary damages. The present verdict owners or occupiers into two classes, not having re($4,000) is a severe one, and if it had been for a less spect to their personal character and qualifications for amount would have vindicated the plaintiff and suff- the business, nor the situation and nature and adaptaciently punished the defendant, but questions of tion of the buildings themselves, but merely by an ar. damages belong peculiarly to the jury, and the court bitrary line, on one side of which are those who are will not set aside a verdict simply because it may be permitted to pursue their industry by the were will
and consent of the supervisors, and on the other those of its payment or extinguishment. Their doctrine is
Raiford (Ga.), 9 S. E. Rep. 169; Railroad v. Williams,
74 Ga. 723; Railway Co. v. Young (Ga.), 7 S. E. Rep. NOTE.--One of two joint makers of a note cannot af- 912; Ranson v. Railway Co. (Wis.), 22 N. W. Rep. 149. ter taking it up reissue it. The note in this case was
Cases are cited by counsel for the defendant in suppayable on or before one year from its date. Watson, port of views in couflict with our conclusions. Some plaintiff's assiguor, was one of the joint makers.
are to that effect, but we are clearly of the opinion Watson took by assignment, indorsed upon the noie,
that they are in conflict with principle. Other cases from the payee.
Plaintiff had notice of Watson's re- cited by counsel are not in conflict with our conclulations to the note, and when he received the note sions in this case. Iowa Sup. Ct., Oct. 10, 1891. Lonfrom Watson, he had notice that the note had been is- ergren v. Mlinois Central Ry. Co. Opinion by Beck, sued to Batchelder; that it had been taken up by C. J. Watson, and through Watson plaintiff acquired it. A single promisor may reissue his own note, and he cannot be allowed to set up a prior payment as a defense. An indorser who is not directly liable may take ANNUAL MEETING OF THE NEW YORK up a note and reissue it. The promisor in such case is
STATE BAR ASSOCIATION. mot prejudiced. But when one of two joint promisors, who is directly liable upon the note for its whole THE general committee charged with the duty of amount, pays such note, the prior contract cannot be making arrangements for the next annual meetafterward revived against his co-signers. Hopkins v. ing of the New York State Bar Association met at the Farwell, 32 N. H. 429; Patch v. King, 29 Me. 448. And rooms of the association, Capitol, Albany, and exceptit has been held that it is immaterial whether, in such ing a few unimportant matters agreed upon a procase, the reissue is made before or after maturity. gramme for the meeting, which it is confidently exGordon v. Wansey, 21 Cal. 77. In Eckert v. Cameron, pected will be the most interesting and useful meeting 43 Penu. St. 120, the note was offered for discount on ever yet held by the association. the day of its date, and the court in that case, after The committee have been fortunate in securing as discussing the cases, say: “The cases hold that there the orator of the occasion the distinguished scholar, is nothing in the fact that an acceptor or maker of an orator and speaker, the Hon. Melville M. Bigelow, of indorsed note has it in his possession, and offers it for Boston, Mass. The subject of his address, “Respect discount before maturity, to give notice to a purchaser for the Law; Responsibility of the Profession,” would
be peculiarly appropriate at all times, but peouliarly so Considered from the standpoint of dollars and cents, at the preseut, in the hands of a speaker of the ac- letter-writing is an accomplishment which fast be knowledged mental resources and legal learning of Mr. coming indispensable in every office and countingBigelow. A very rich intellectual treat is offered to all room. So much of the world's business is to-day intelligent classes of people.
transacted on paper by means of correspondence that The ceremony of presenting a portrait of the late the ability to get up a good, clearly-stated letter is a Homer A. Nelson to the association by the members qualification the value of which to young men and o the Dutchess county bar will be exceedingly impres- women can scarcely be overestimated. sive. The Hon. Frank B. Londer will present the por- The ALBANY LAW JOURNAL is forming a large trait and deliver the presentation address. It will be short-hand class. Membership only $2. If you intend received on behalf of the association by Hon. George to join remit the amount promptly to the publishers, M. Diven, president of the association. The presen
WEED, PARSONS & Co., tation will take place on the first day's meeting.
39 Columbia St., A full programme of the meeting will be published
ALBANY, N. Y. in the next journal. THE COMMITTEE.
N the “
Echoes of the Week” column of the Sunday LETTER-WRITING AND SHORT-HAND.
Times, George Augustus Sala recently made some YHARLES DUDLEY WARNER, the eminent au
very sensible remarks on the recent strong advocacy thor, once remarked that the habit of letter-writ
by the chairman of the Durham Quarter Sessions of ing, acquired when young, was the real secret of the
the lash as a punishment for culprits convicted of assuccess he attained in after years as a writer of books.
saults on women and girls. Mr. Sala as strongly deIn youth he learned by letter-writing to express his
precates any such reforin of the law, and we quite thoughts with his pen, and continuing to do so he
agree with him. The danger of extortion by the gradually acquired that brilliant style that has made
“Sapphira prosecutrix who tells all manner oi lies in his name famous. He was fortunate in having edu
the witness-box," and the danger of a repetition of the cated friends ns correspondents.
offeuse being caused by the peculiar punishment of There is certainly no better way of learning to use
flogging, combine we think to form sufficient arguthe Euglish language, well and forcibly, than by carry
ments against any such alteration of the law as is deing on regularly a correspondence with a number of
sired at Durham. The flogging of grown-up men educated, intelligent people. And it is no doubt true
should be confined to cases of robbery with violence, that a great many ambitious young persons would
which from its nature is the result of premeditation practice letter-writing to a much greater extent than
such as is rarely to be found in the case of assaults on they do if they had some way of obtaining suitable
women.-London Law Journal. correspondents.
The rule of the Code is that at any stage of the case But the world moves! In connection with the class every declaration is amendable in substance in all rein short-hand now being formed, a regular system of spects, provided there is already in it enough to letter-writing will be put in motion. Every person amend by. The construction we are combating holds who becomes a member of the class will be put in com- this to mean that, if a declaration lacks any part of a munication with several other persons with whom it cause of action, that is, any thing which is necessary will be entirely proper for him to correspond. Care to make up enough substance to resist a general deand discretion is exercised in the matter of introduc- murrer, it lacks baving enough to amend by and is not tions.
amendable. It holds in effect that a general demurrer Each member of the class will be given three or four is not to be "spoiled ” by putting more substance into correspondents. One or two of these will be located
a declaration, but only by taking some out when it bas pot far distant, while the others selected will be per
You may empty by one-half if the declasous living perhaps a thousand miles away.
ration is too full, but if it is half empty you can never A double advantage is gained by this plan. The stu- fill it. Nay, if it lacks any thing whaterer of being dent gets practice in letter-writing, and at the same full, what it wants can never be supplied, though the time most excellent drill in short-hand. In the let- means of supply may exist in abundant measure. ters which at stated times pass between the cor- Under this singular construction, a declaration too respondents, various topics of interest will be dis
strong in substance--as, for instance, if it sets forth cussed.
two causes of action which cannot be joined because Usually a duplicate copy of each letter is inclosed. one originated in tort, the other in contract-may be The extra copy is examined and to some extent criti- weakened down, but if it is too weak already, it cancised by tbe recipient, and returned to the writer with
not be strengthened. A declaration may take an the next letter mailed. Colored ink is used in making emetic, but not more food. Curative treatment is recorrections. This comparing of notes and the discus- stricted to depletion, all tonios are probibited. We are sion and in vestigation which grow out of it, prove mu- reminded of that tender regard for a demurrer insinutually instructive and encouraging.
ated from the bench nearly two hundred years ago in It may seem odd, but is true nevertheless, that a Fox v. Wilbraham, 1 Ld. Raym. 668. Lord Holt saying: learner often feels more respect for unseen classmates " It would be hard to spoil the defendant's demurrer.” than for fellow-students with whom he comes into
But is not a general demurrer too diabolical to have daily, familiar contact. With men and women, the any claim upun modern emotion ? Stated in the most same as with mountains and clouds, it holds true that
partial terms, its merits would seem to stand thus: “ distance lends enchantment."
“Demurrer is the only legal devil always present and The faults of persons we meet upon the street are always ready. Every logical universe requires one easily detected.
Their true merits, which lie deeper, such character. Some destructive work has to be are better revealed in letters which they write. A per- done, and how can it be done if there is only resiste son's faults, which oftentimes are merely surface
anca, no co-operation, not even sympathy?” But the blemishes, are not detected by the correspondent who, spirit of modern procedure is altogether constructive notwithstanding, is able in time to perceive bis and conservative, and though it gives the devil his due friend's real virtues which lie hidden from casual ob- it takes care to restrict his dues as much as possible.-servation.
Bleckley, C. J., in Ellison v. Railroad Co., Ga. Sup. Ct.