Imágenes de páginas
PDF
EPUB
[blocks in formation]

town cannot appropriate money to pay expenses of a committed to attend a convention of American Municipalities, since such expenses are not "necessary charges."-WATERS V. BONVOULOIR, Mass., 52 N. E. Rep. 500.

87. MONICIPAL CORPORATIONS-Defective sidewalksNegligence.-A sidewalk is included within the term "streets and public grounds," as used in a city charter, which makes the city liable to anyone for damages sustained by accident or casualty on account of the condition of “any street or public ground" within the city.-GIFFEN V. CITY OF LEWISTON, Idaho, 55 Pac. Rep. 645.

88. MUNICIPAL CORPORATIONS-Disannexation of Ter. ritory.-Under Burns' Rev. St. 1894, $$ 4228, 4230 (Horner's Rev. st. 1897, 98 3247, 3249), prescribing that boards of "commissioners, on petition of the common councils of cities and boards of town trustees or city councils, on petition of property owners, may change the boundaries of municipal corporations, an action will not lie to disannex part of a municipality's territory, because that function is solely legislative.-WOOLVERTON v. TOWN OF ALBANY, Ind.,52 N. E. Rep. 455.

89. MUNICIPAL CORPORATIONS-Electric Companies.Where the law requires the city council, on the request of an electric company, to control the placing and erection of wires and fixtures in the streets, it is no ex. cuse for failure to act that the company has not ob. tained the consent of adjoining owners, as required by law, to a proposed change.-NORWALK & SOUTH NORWALK ELECTRIC LIGHT Co. v. COMMON COUNCIL OF CITY OF SOUTH NORWALK, Conn., 42 Atl. Rep. 82.

90. MUNICIPAL CORPORATIONS-Obstruction of Side. walk.-That a constable is removing furniture from a house in obedience to a writ of execution is po justifi. cation for violating an ordinance against placing ob. structions on a sidewalk.-COMMONWEALTH V. LENNON, Mass., 52 N. E. Rep. 521.

91. MUNICIPAL CORPORATIONS-Ordinance-Licenses -Violation.-A city ordinance provided that any per son who should engage in or carry on any business for which a license was required, without first taking out such license, should, on conviction, be fined for each offense not exceeding $100. Held not to authorize the arrest and fine of a person violating such ordinance every day until he paid such tax, as for a separate and distinct offense, since "engaging in and carrying on" a business implies that it is continuous.-NASHVILLE, C. & ST. L. Ry. Co. v. CITY OF ATTALLA, Ala., 24 South. Rep. 450.

92. MUNICIPAL CORPORATIONS - Public Landings.Owners of property facing a street on a water front opposite a public landing may maintain a bill as such owners, and as taxpayers of the city, to restrain the erection by a lessee of the city of a building on such landing which will obstruct plaintiff's use thereof.REIGHARD V. FLINN, Penn., 42 Atl. Rep. 23.

93. MUNICIPAL CORPORATIONS--Sewers.-While a city having authority to let a contract for local improve. ments, to inspect, accept and pay for the work, and to audit accounts, is not bound to show that the prices paid are reasonable, or to prove the account, except to show that it was paid for the improvement, yet an owner whose property is assessed may show that the charges are for work pot embraced in the ordinance, and are, hence, not payable out of the assessment fund.-PEOPLE V. MOWETHY, II., 52 N. E. Rep. 479.

94. MUNICIPAL IMPROVEMENTS-Contracts.-The letting of a contract to do public work by a city council is an administrative, and not a judicial or quasi judi. cial, act.-ADLEMAN V. PIERCE, Idaho, 55 Pac. Rep. 658.

95, MUNICIPAL IMPROVEMENTS—Reassessment.-Street Improvement Act, $ 9, authorizing a second assessment where a suit to foreclose a lien for street work has been defeated by some defect in the prior assessment, does not apply when such a suit is defeated by any de. fects other than in making the assessment.-GRAY V. RICHARDSON, Cal., 55 Pac. Rep. 603.

97. NEGLIGENCE-Injury by Horse.-The owner of a horse rendered nervous by the driver's mistreatment, bitched near a sidewalk, and standing partially on it, is liable to a pedestrian on the sidewalk for injuries received by a kick from the horse, without proof that it was vicious to the owner's knowledge.-HARDIMAN T. WHOLLEY, Mass., 52 N. E. Rep. 518.

98. NEGLIGENCE Proximate Cause. - In a steel foundry, molten metal for castings was drawn from a cupola through an orifice called a "tap hole," to open and close which required a person of skill. Defendant, in the absence of its regular tapper, placed a person in charge who was known to it to be incompetent. Such tapper improperly stopped a tap hole, so that the iron was oozing out, and in danger of bursting through and injuring employees below, when plaintiff, who was an experienced tapper, undertook to stop the flow, but did so negligently, and was injured. Held, that the negligence of the former was the proximate cause of the injury.-MARYLAND STEEL CO. OF SPARROWS POINT V. MARNEY, Md., 42 Atl. Rep. 60.

99. NEGLIGENCE-Structures Overhanging Highway. -The law casts upon owners of buildings abutting upon the streets, who attach thereto structures over. hanging the street, the duty of preventing such overhanging structures becoming in any way dangerous to persons lawfully passing upon the highway; and where the plaintiff shows that while lawfully in the highway he is injured by some part of such a structure falling upon him, the burden rests upon such owner to show that he was blameless in the premises.-ATCHISON V. PLUNKETT, Kan., 55 Pac. Rep. 677.

100. NEGLIGENCE-Turnpike Roads-Failure to Erect Barriers.-A turnpike road company is liable for injuries resulting from the frightening of a horse, and the backing of a vehicle over the side of the road, where the declivity was such as to cause a person of ordinary prudence to apprehend danger froin the fail. ure to erect barriers.-CANTON, C. & H. TURNPIKE CO. v. MCINTIRE, Ky., 48 S. W. Rep. 980.

101. NUISANCE-Injunction.-An Injunction at the suit of a landlord who lived in the nearest one of the group of houses which he rented, against the maintenance of an adjoining stable as a nuisance which detracted from the rental value of his property, is not erroneous as being designed to protect his tenants, who were not parties ior relief.-KASPAR V. DAWSON, Conn., 42 Atl. Rep. 78.

102. NUISANCE-What Constitutes.-A garbage furnace, erected in a city, under the provisions of an ordinance thereof, in the most unobjectionable place that could be selected within the city limits, and constructed on the most scientific principles, is not a public muisance because it may be an annoyance to some of the per sons living in its vicinity.- FISHER V. AMERICAN REDUCTION CO., Penn., 42 Atl. Rep. 36.

103, OFFICERS-Arrest Warrant.-An officer may, within his county, arrest without a warrant for a past felony (though committed in another county), one whom he knows to be accused thereof, or whom be has reasonable cause to suspect; 2 Ballinger's Ann. Codes & St. $ 6869 (1 Hill's Code, $ 1557), permitting the magistrate to indorse on a warrant authority to arrest on receipt of telegraphic copy, being permissive, and not restrictive.-STATE V. SYMES, Wash., 55 Pac. Rep. 626.

104. PARENT AND CHILD – Life Support - Deed.-A deed by a father to child in consideration of support may be rescinded by the father, where the grantee mortgages the land.-PAYETTE V. FERRIER, Wash., 55 Pac. Rep. 629.

105. PARTNERSHIP.-Where persons were engaged in raising wheat, contributing to the business, and shar. ing the losses and profits, a partnership existed, though there was no evidence of what the intent of the parties was.-HART V. HIATT, I. T., 48 S. W. Rep. 1038.

106. PARTNERSHIP-Actions-Limitations.-An action was commenced against two of three partners, and subsequently an amendment was filed making the third a party, but between the time of the commencement of the action and the filing of the amendment limitations ran in favor of the latter partner, who was discharged. Held, that his discharge did not affect the liability of the others.-HARRISON V. MCCORMICK, Cal., 55 Pac. Rep. 592.

107. PARTNERSHIP Instructions.-In an action against defendants, as co-partners, where the alleged co-partnership was established by a written agreement between them, and the only issue remaining was as to whether their contract had been abrogated by a subsequent parol agreement, it was error to give an instruc. tion as to what constituted a co-partnership with reterence to a participation in the profits, as it tended to mislead the jury.-ASHENFELTER V. WILLIAMS, Colo., 55 Pac. Rep. 734.

108. PAYMENT – Application-Set-off.-Where defend. ant was liable on two notes held by a bank, on one of which he was surety, and of the other a maker, and forwarded money to the bank, with instructions to apply it on the note of which he was maker, and the bank notified him that it would apply it on the one on which he was surety, and he thereafter paid the balance of such note, he ratified the action of the bank in apply. ing the payment to such potes.-CITIZENS' BANK v. CAREY, I. T., 48 8. W. Rep. 1012.

109. PLEADING-Amendment of Answer.-Under Div. Code, $ 73, providing that after demurrer, and before the trial of the issues of law therein, the pleadings demurred to may be amended by filing the amendment and serving a copy on the adverse party, plaintiff is pot obliged to give notice that a second amended complaint is, or will be, filed.-KING V. GARDNER, Colo., 65 Pac. Rep. 727.

110. PLEADING - Action-Notes.-Where the payee of a note Indorsed it without recourse, and then rein. dorsed it without restriction, and in the action on the note the complaint declared on an agreement whereby the second unrestricted indorsement was made on a subsequent date because the prior restricted indorse. ment would not be accepted, it was competent to explain the manner of the indorsements by parol.GOODRICH V. STANTON, Conn., 42 Atl. Rep. 74.

111. PRINCIPAL AND AGENT.-Authority-Payment of Mortgage.--Althougb a mortgagee has authorized an agent to collect interest, and to receive payment of the principal when due, the agency does not extend to receiving payment of principal before maturity.-LESTER V. SNYDER, Colo , 55 Pac. Rep. 618.

112. PRINCIPAL AND AGENT-Contracts.-A buyer who deals with an agent of an undisclosed principal as the real owner is not liable to the principal where he has received the goods, and credited the price on a debt owing him by the agent, before knowledge of any other title than that of the agent.-BELFIELD V. NAT. IONAL SUPPLY CO., Penn., 42 Atl. Rep. 131.

113. PRINCIPAL AND SURETY-Bond-Consideration.A bond voluntarily given by defendant to recover pos. session of goods from a receiver appointed in a suit against him by his partner to wind up the partnership is not without consideration because on appeal from the order appointing the receiver it is held that the appointment is invalid.-LARSEN V. WINDER, Wash., 56 Pac. Rep. 563.

114. PRINCIPAL AND SURETY-Bond-Estoppel.-In an action by a creditor upon a bond given by the sole heir at law to secure a decree of distribution of the estate of the decedent to her, which was conditioned to pay the debts of the deceased and the expenses of ad. ministration, the suretles made the defense that they executed the bond supposing it to be the bond of the

administratrix, as such, and not, as heir, to secure the distribution of the 'estate. No fraud was claimed. They could read and write, but they neither read the bond, nor made inquiry as to its provisions or effect. The probate court made the decree of distribution upon the faith of the bond. Held, that the gureties are estopped to deny the execution or validity of the bond, as to creditors.-OLSON V. ROYEM, Minn., 77 N. W. Rep. 818.

115. PROCESS OF LAW-Sheriff's Return-Falsity.-Under Bill of Rights, $ 25, providing that no person shall be deprived of property without due process of law, a party is not precluded by a sheriff's return of service from showing its falsity; and this whether the false recital is of matters presumptively within officer's personal knowledge or not.-DU BOIS V. CLARK, Colo., 55 Pac. Rep. 750.

116. REAL ESTATE AGENT – Authority.-A letter requesting a real estate agent to find a purchaser for a lot does not authorize him to bind the owner to a contract of sale.-MCCULLOUGH V. HITCHCOCK, Conn., 42 Atl. Rep. 81.

117. SALE – Conditional Sales.--Motors, controllers, and trolley poles belonging to an equipment company are not so mingled with the car to which they are attached, belonging to the railroad company, as to preclude the seller from maintaining a lien thereon as against judgment creditors, where they are of standard make, and their removal would leave the car ready to receive other equipments of similar character.GEN. ELEC. Co. v. TRANSIT EQUIP, Co., N. J., 42 Atl. Rep. 101.

118. SALES-Damages.-One who contracts to furnish a dealer with a certain article at a certain time, will, in the absence of any special agreement, be held to have adopted the retail price at the time and place of delivery as the basis for establishing damages for nondelivery.-JOHNSTON V. Faxon, Mass., 52 N. E. Rep. 539.

119. SALES-Rescission-Misrepresentation.-The fact that a misrepresentation by a seller of chattels was not the exclusive inducement for the contract to buy does not preclude him from defending against an action for the price on the ground of such misrepresentation.RICE V. GILBREATH, Ala., 24 South. Rep. 421.

120. SPECIFIC PERFORMANCE-Consideration.-An option given without consideration by the vendor of land to plaintiff, to buy on demand certain adjoining land, will not be enforced, demand not having been made for more than six years, the land having been bought for town lots, and there having proved to be no sale for them till near the end of said six years, when there was a boom, one of the purchasers having offered in the meantime to sell back what he had bought for the price paid, without interest, and the vendor having in such time put improvements on the land exceeding the price to be paid, plaintiffs remaining silent.-DAVIS v. PETTY, Mo., 48 S. W. Rep. 944.

121. TAXATION -,Cars Owned by Foreign Corporation -Situs.-Railway cars, owned by a Kentucky corpora. tion having no place of business in this State, leased to various shippers, but coming into or passing through, and doing business in, this state, have, for the purposes of taxation, a situs in this state.-UNION REFRIGERATOR TRANSIT CO. V. LYNCH, Utah, 55 Pac. Rep. 639.

122. TAXATION – Exemption - Public Charity.-Under Const, art. 9, § 1, providing that the general assembly may by general laws exempt from taxation institutions of purely public charity, and Act May 14, 1874, exempt. ing from taxation all universities, colleges, seminaries, academies, associations, and institutions of learning, with the necessary grounds thereto annexed, main. tained by public or private charity, a convent used ex. clusively for the residence of the teachers in a school free to all classes and creeds, erected and maintained by a Catholic church, in which convent the teachers are allowed to reside as part consideration for their

services, 18 exempt.-WHITE V. SMITH, Penn., 42 Atl. Rep. 125.

123. TAXATION-Railway Cars-Constitutional Law.Act March 18, 1895, amending Rev. St. 1889, ch. 138 (on the assessment and collection of the revenue), art. 8, by adding thereto eight sections providing for the assessment and taxation of railway cars not belonging to railroads, and requiring car companies to file state. ments of mileage made by cars, and levying a 2 per cent. State tax on all such cars, provides for a tax on property, and not for a license, and hence so much thereof as laid the 2 per cent. State tax is void under Const. art. 10, $ 8, providing that the State tax on prop. erty shall not exceed two mills.--STATE V. STEPHENS, Mo., 48 S. W. Rep. 929.

124. TAXATION-Validity of Afidavits-Tax Deeds.An affidavit filed by a purchaser at a tax sale to pro. cure the issuance of a tax deed to himsell, stating that be served a notice some six months before on one who "ig" the owner of the land described in said notice, is defective for failure to state said person "was" the owner at the time the notice was served, within 3 Starr & C. Ann. St. (2d Ed.), p. 3487, providing that the notice shall be served on the owners or the parties in. terested in said lot.-LAUER V. WEBER, III., 52 N. E. Rep. 489.

125. TENANTS IN COMMON-Liabilities Inter Se-Sub. rogation. - Where one tenant in common has paid more than bis proper share of a charge upon the common property, his interest or owner. ship therein is not proportionally expanded, but he is, to the extent of the excessive contribution, subrogated to the rights of the lien creditor to whom the payment has been made.-OLIVER V. LANSING, Neb., 77 N. W. Rep. 802.

126. TRADE-NAMES-Sale of Business.-Though there is no formal transfer of a business and the right to its name, where a business is actually transferred, the transferee has the right to use the trade-name.-ALLEGRETTI V. ALLEGRETTI CHOCOLATE-CREAM Co., Ill., 52 N. E. Rep. 487.

127. TRUSTS Charitable Trusts-Oy Pres Rule.-A petition by a mere stranger to effectuate a charitable trust by the doctrine of cy pres, praying that the peti. tioner be directed to take custody of the institution provided for, may be deemed an acceptance of a proper decree in response to the attorney general's answer, which directed plaintiff to take custody.WOMEN'S CHRISTIAN ASSN. V. CAMPBELL, Mo., 48 S. W. Rep. 960.

128. Trusts-Resulting Trusts-Time of Operation.Where a father undertook to convey land belonging to his children, and invest the money received from the grantee in other land taken in his own name, the children cannot, by subsequently ratifying his act, cause a trust to result in their favor, as a trust must result, if at all, when the deed is taken.-ARNOLD V. ELLIS, Tex., 48 8. W. Rep. 883.

129. TRUSTEES-Contract-Validity. – An agreement by a trustee, for a consideration moving to himself, to secure the election of another to the office of trustee, constitutes a breach of trust, and is void on grounds of public policy; and a promissory note given for such a promise is void, being founded on an il. legal consideration.-DICKSON V. BAKER, Minn., 77 N. W. Rep. 820.

130. USURY-Evidence-Lex Loci Contractus.-Notes dated and made payable in another State cannot be adjudged usurious, in the absence of proof of the usury law of such State.-SAWYER V. DICKSON, Ark., 48 8. W. Rep. 903.

131. VENDOR AND PORCHASER-Action.-It is no de. fense in a suit to recover the price of land sold that the first deod tendered by plaintiff, owing to a mistake in the deed from his grantor, included land to which he had no title, where he had afterwards procured a conveyance of the land omitted, and had tendered ae. tendant a deed thereto.-POPE V. MICHEL, Penn., 42 Atl. Rep. 22.

132. VENDOR AND PURCHASER-Deeds-Records.-Act March 18, 1875 (P. L. 32), requiring recorders of deeds to keep direct and ad sectam indexes of deeds and mortgages, and providing that the entry of recorded deeds and mortgages in such inderes respectively shall be notice to all persons of the recording of the same, does not make it the duty of an incumbrancer or purchaser to search the ad sectam index against the names in the chain of title.-PYLES V. BROWN, Penn., 42 Atl. Rep. 11.

133. WATERS-Irrigation Companies-Right of Way.Under 1 Ballinger's Ann. Codes & St. $ 4155 (1 Hill's Code, $ 1773), declaring that irrigation companies shall be deemed public carriers, subject to legislative regu. lation, such a company is not required to show that it has acquired the right to take waters from a stream from which it proposes to get its supply, from riparian owners, as a prerequisite to its right to condemn land for a right of way.-PRESCOTT IRRIGATION Co. v. FLATHERS, Wash., 55 Pac. Rep. 635.

134. WILLS-Conversion.-A will making provision for testator's wife during her life, and directing a sale of the estate, at the latest at her death, the proceeds to be divided among his children, works a conversion of the land into personalty from the date of testator's death, although not actually converted by a sale; so that the children, in bargaining among themselves concerning their interests, need only observe such formalities as are necessary to pass personalty.HOWELL V. MELLON, Penn., 42 Atl. Rep. 6.

135. Wills-Heirs by Blood--Bastards.-A devise was to testator's niece, and after her death to her "heirs by blood." Numerous devises were to other nieces, and their "heirs by blood;" indicating an intention to exclude their husbands and those not related by ties of consanguinity. Held to include the illegitimate son of the niece, he being her heir under the statuta.HAYDEN V. BARRETT, Mass., 52 N, E. Rep. 530.

136. WILLS Invalid Residuary Devise.-Where a will, after specific bequests, devised the residue to two beneficiaries, share and share alike, one of whom could not take because her husband was a subscribing witness to the will, the share attempted to be devised to her does not go to the other residuary legatee but must be administered as intestate estate.-POWERS V. GODWISE, Mass., 52 N. E. Rep. 525.

137. WILLS – Legacieg.-A legatee under a will be. queathing to her certain property subject to the condition that a certain trustee shall take charge of it, and pay her the income annually, and deliver the property to her children on her death, is not entitled to possession of the property as agaiust the trustee.THIEME V. ZUMPE, Ind., 52 N. E. Rep. 449.

138. Wills - Perpetuities Alienation.-A will provided: "Should my death occur before the expiration of the leases of my landed estate, I desire (M) to receive all rents. So soon as the leases of rented lands are canceled, I desire the land to be sold." Held not to suspend the power of alienation, in violation of Civ. Code, $ 715, forbidding such suspension longer than during lives of persons in being; a prior alienation not being forbidden, and there being persons by whom an absolute interest in possession could be conveyed.TOLAND V. 10LAND, Cal., 55 Pac. Rep. 681.

139. WILLS Testamentary Trusts.-Where a testamentary trust is specifically created, and there is an uncertainty in the objects to be benefited or in the subject to be affected, the trust will fail, and the next of kin will be entitled to the legacy.- PRATT V. TRUSTEES OF SHEPPARD AND ENOCH PRATT HOSPITAL, Md., 42 Atl. Rep. 51.

140. WITNESS - Communication between Husband Wife.-Code Civ. Proc. § 1881, subd. 1, disqualifying as witnesses a husband or wife as to any communication made by one to the other during marriage, does not make a wife suing her husband's administrator to establish a conveyance of land by her husband to her, incompetent to testify that he delivered the deed to her; that not being a "communication,” within the statute.-POULSON V. STANLEY, Cal., 55 Pac. Rep. 605.

Central Law Journal.

master within the scope of his employment, the latter is liable for compensatory damages;

but for such negligence, however gross or ST. LOUIS, MO., MARCH 3, 1899.

culpable, he is not liable to be punished in

punitive damages, unless he is also chargeable Maisenbacker v. Society Concordia, re

with gross misconduct.” In the case of Railcently decided by the Supreme Court of Er

way Co. v. Prentice, 147 U. S. 101, 13 Sup. rors of Connecticut, involves not only a novel

Ct. Rep. 261, in which this question is very question of ball room rights, but also a

fully discussed, and the decisions in both the very important proposition of law, governing

federal and State courts upon this subject re. the liability of the principal for punitive dam- viewed, Mr. Justice Gray, speaking for the ages arising out of the tort of its agent. It

court, laid down the rule, as deducible from appeared in that case that plaintiff having

the authorities, that guilty intention upon contracted with and paid the defendant for

the part of the defendant is required in order the privilege of dancing at a certain ball was,

to charge him with exemplary or punitive damby the forcible act of defendant's agents pre.

ages." "Exemplary or punitive damages," vented from exercising her said right, and was

said he, being awarded, not by way of comthereby caused pain and damage. The court pensation, but by way of punishment of the in substance held that mental as well as phys-offender, and as a warning to others, can only ical suffering, where properly alleged, may

be awarded against one who has participated be proved as an element of actual damage,

in the offense. A principal, therefore, though, and as naturally and directly resulting from

of course, liable to make compensation for inan assault on the floor of a public ballroom ;

juries done by his agent within the scope of that private corporations, as well as individ- his employment, cannot be held liable for exuals, may, for their own acts, become liable emplary or punitive damages merely by reain punitive damages; that the expenses of

son of wanton, oppressive, or malicious intent litigation are not an element of actual or com

upon the part of the agent." In 1 Sedg. pensatory damages, but may be considered

Dam. (8th Ed.) SS 378, 380, the author, after where exemplary damages are awarded ; that citing very fully the conflicting authorities in

different jurisdictions upon the question, expenses of litigation, recoverable as damages in cases where punitive damages are recove

says: “It is the better opinion that no exerable, are limited to the excess over taxable emplary damages can be had against a princosts; that a corporation is not liable in punicipal for the tort of an agent or servant, unless tive damages for an assault by a floor man

the defendant expressly authorized the act as ager appointed to regulate the dancing at a

it was performed, or approved it, or was ball given by it, committed by putting his grossly negligent in hiring the agent or servhand on the plaintiff's shoulder "rudely, in

ant." solently, or angrily," and while she was on the ballroom floor, "at the same time telling The constitutionality and effect of what is her she could not dance there, and that she known as the "indeterminate sentence law” was not a fit person to be there,” and that of Massachusetts was considered by the Suprincipal, though liable to compensate for in-preme Court of that State in Murphy v. Com. juries done by his agent within the scope of monwealth, 52 N. E. Rep. 505. The court his employment, is not liable for exemplary held that a former statute of that State, endamages because of wanton, oppressive, or acted before the passage of the indeterminate malicious intent on the agent's part, where sentence law, authorizing certain deductions the acts were not authorized or ratified by the to be made for good conduct from the senprincipal. The last proposition, probably the tences of convicts, and their release during most important one in the case, is supported the time so deducted, on certificate of the by the weight of authority. In Cleghorn v. prison commissioners, is not a mere measure Railroad Co., 56 N. Y. 44, Chief Justice of prison discipline, but entitles convicts to Church, in delivering the opinion of the court, such deduction and release as of right, which, says: "For injuries by the negligence of a subsequent to the commission of the offense, servant while engaged in the business of the cannot be interfered with to their disad

vantage by legislation; that the "indeterminate sentence" statute of 1895, providing that in sentencing convicts the court shall fix a minimum and a maximum term for the offense, and at any time after expiration of the minimum period the convict may be released on permit from the commissioners of prisons, approved by the governor and council, which permit may at any time be revoked, is not void as rendering the duration of the sentence uncertain, and that that act is not void as an ex post facto law, as empowering the prison commissioners and the governor and council to fix the sentence, since a sentence thereunder is, in effect, one for the maximum period. The earlier uct provides for the release of a convict during a period deducted from bis sentence for good behavior on certificate of the prison commissioners. The Act of 1895 provides for an indeterminate sentence and a release after expiration of the minimum period, on certificate of the prison commissioners, approved by the governor and council. It was held that the latter act is not, by requiring additional authorities to concur in the issuance of the certificate of release, void as an ex post facto law, as applied to offenses committed before it went into effect. The earlier act also provides for deductions for good behavior from the sentences of convicts, and for their release for the time so deducted. The Act of 1895, without repealing the former act, provides for indeterminate sentences, and a release of the convict after expiration of the minimum period. It was held by the court that the latter act does not, by implication, repeal the former, and hence it applies only to sentences for offenses committed after it took effect.

woman must be specially pleaded to entitle it to be considered as an element of damages, the loss of a general prospect of marriage, in the case of a child, by reason of an injury which disfigures her, is a natural, and not a special, consequence of the injury, and may be, and in fact can only be, taken into consideration as an element of general damages, and a special allegation with regard to it is not required. The court said in part: “In Grotenkemper v. Harris, 25 Ohio St. 510, 514, the Supreme Court of Ohio, approving the doctrine of Railroad Co. v. Barron, 5 Wall. 90, and applying it to the case of the death of a child by the wrongful act of the defendant, in a suit by its next of kin, under the statute of Ohio, uses this language: “The deceased at the time of his death was a mere infant, and it could not properly be said that his life was of any present pecuniary value to any one; and the only basis upon which damages for pecuniary injury to his next of kin, by reason of his death, could be predicated and allowed, was the one given by the court. If death has not ensued from the injury complained of, there can be no doubt that the party injured, although an infant, could, by bis next friend, have maintained an action against the wrongdoers, and have recovered damages commensurate with the injury sustained.'

"Turning to the action of the trial court, we find that what was thus approved in that case was an “allowance of damages other than such as would immediately and directly follow from the wrongful act of the defendant,' and might include, though more difficult of application in case of a mere child, such pecuniary benefits as the next of kin would probably have derived from him in the future.' And the jury had been told, in substance, that they must take all the facts and circumstances into consideration, and assess such damages as the next of kin had suffered in view of the future prospects, as they appeared from the then existing circumstances and the ordinary development of such a child. There is not a statute governing this case, but the rules of the common law for measuring the damages were substantially the same where there was no death and the injured party is suing in his own behalf, and the Supreme Court of Ohio recognizes this in the case cited. And, on this rule, I am unable to see why a girl five years old may not ask the jury to consider what effect the injury of disfigurement will probably have on the prospects of her marriage when she reaches the age of womanhood, and how far the money value of her whole life may be blasted by that circumstance. It is not speculative because it is difficult to estimate, nor in any other sense than almost every element of damages is speculative where the ascertainment depends on what the jury, or other trior of the fact, “shall deem fair and just,' and where, being suncertain and indetinite,' the damages are not capable of adjustment ówith precision and accuracy,' as was stated in the Ohio case. The estimate must be entire,

NOTES OF IMPORTANT DECISIONS.

DAMAGES PERSONAL INJURY TO CHILD-IMPAIRMENT OF PROSPECTS OF MARRIAGE. - In Smith v. Pittsburgh & W. Ry., 90 Fed. Rep. 788, decided by the United States Circuit Court, N. D. Ohio, it was held that where a personal injury to a little girl is such as to seriously impair her prospects of marriage when she reaches a marriageable age, such fact may properly be considered by the jury as an element of damages resulting from the injury. It was further held that while the loss of a particular prospect of marriage by a

« AnteriorContinuar »