Imágenes de páginas

women," providing that all conveyances, mortgages avail himselt of any defense to the mortgage that the and the like, affecting a married woman's estate, shall mortgagor might make.-CREECH V. ABNER, Ky., 60 8. be effectual to convey such estate where the intent is W. Rep. 58. declared in such conveyances, does not render a con 74. MORTGAGES-Principal and Surety.-A mortgagee veyance without such declaration ineffective to convey

may avail himselt of a later mortgage made by his the estate.-CARROLL V. THOMAS, S. Car., 32 8. E. Rep.

mortgagor on other land, in favor of a purchaser of 497.

the land covered by the earlier mortgage, to secure 66. MASTER AND SERVANT-Assumption of Risk-Prox. the payment of the earlier mortgage, as the purchaser imate Cauge.-A switchman, who takes his proper occupies a position of surety for the debt secured by place on the footboard of the engine, between it and a the earlier mortgage, to the extent of the lands purcar ahead, has the right to assume that the vice-prin. chased, and a creditor may enforce security furnished cipal in the engine will use proper care, and that the by a principal debtor to secure the surety.-MAGILL Y. track will be kept clear.-FT. WORTH & D. C. BROWN, Tex., 50 S. W. Rep. 143. V. WRENN, Tex., 50 S. W. Rep. 210.

75. MORTGAGES-Stipulation for Attorney's Fees.-A 67. MASTER AND SERVANT-Hospital Fund-Upskillful

stipulation in a mortgage executed to a trustee for Treatment.-A company employed and paid physi. bondholders that the trustee's attorney's fees in addi. cians, and undertood to treat its employees when sick tion to the debt shel be paid out of the proceeds of or injured, deducting 50 cents per month from each

the property when sold is vold as against public employee's wages. The employees had no interest in

policy.-KENTUCKY TRUST CO. V. THIRD NAT. BANK OF the fund thus raised, nor in its distribution, and when

LOUISVILLE, Ky., 50 S. W. Rep. 43. they ceased their employment their right to treatment ended. The surplus of the fund each year was re.

76. MORTGAGE-Validity.-A mortgage in which the tained by the company. Held, that the company was

wife of the mortgagor does not join is valid, except to liable to an injured employee for unskillful treatment

the extent of the homestead exemption or its physician.-TEXAS & PACIFIC COAL CO. V. CON. FIRST NAT. BA`K OF COVINGTON V. Root, Ky., 50 8. W. NAUGHTON, Tex., 50 S. W. Rep. 173.

Rep. 16. 68. MASTER AND SERVANT — Injuries-Question for 77. MUNICIPAL CORPORATIONS-Assessment for Street Jury.-In an action by a servant against the master to Improvements. The fact that a city ordinance provid. recover for personal Injuries alleged to have been sus. ing for the original construction of a street directs the tained by reason of defective appliances furnished by cost of the entire work, including curbing, to be apporthe defendant, where the evidence showed that the ap tioned among the abutting property owners accordpliances were not reasonably safe, and was conflicting ing to the number of square feet of ground owned by as to whether the plaintiff was guilty of contributory each one, instead of providing for the apportionment negligence, and as to whether the injury was due to of the cost of the curbing according to the front foot, the negligence of a fellow-servant, as well as to the as required by Ky. St. $ 2835, does not render the ordifacts from which it must be determined whether nance void, being but the expression of opinion by the plaintiff knew, or should have known, that the ap. general council as to how the cost of the curbing shall pliances were unsafe, the case was properly submitted be paid for.-GLEASON V. BARNETT, Ky., 50 S. W. Rep. 67. to the jury.- NEW ORLEANS ICE Co. v. O'MALLEY, U. S. C. C. of App., Fifth Circuit, 92 Fed. Rep. 108.

78. MUNICIPAL CORPORATIONS-Assessment for Street

Improvements. - City authorities have the right to 69. MASTER AND SERVANT-Injury to Servant-Issues

order sidewalks reconstructed, and to require payment and Proof.-In an action to recover for the death of a

therefor from the abutting lot owners.-HACKWORTH servant, alleged to have been due to the failure the v. LOUISVILLE ARTIFICIAL STONE 00., Ky., 50 S. W. master to provide him with a safe place to work, that

Rep. 33. the defect complained of was obvious and well known to the servant, so that the risk incident thereto was

79. MUNICIPAL CORPORATIONS-Defective Highways.assumed by him, need not be specially pleaded as a de

An excavation on a highway was filled up so that for a fense, to render evidence on the subject admissible,

while it seemed firm, but thereafter became softened but such facts go to the question of whether a right of

by rain, causing injuries to a traveler. The highway action ever existed in the plaintiff, and are provable

surveyor knew that an excavation had been made under a general denial.-BAKER V. BARBER ASPHALT

there, and filled up again, but made no examination. Pav. Co., U.S.C. C., W. D. (Mo.), 92 Fed. Rep. 117.

Held, that the town was liable for the injury, being 70. MASTER AND SERVANT-Negligence.-The exten.

bound to exercise a reasonable supervision over such sion by congress of the time within which all interstate

excavation, under Pub. St. ch. 65, § 1, requiring towns

to keep highways within their limits in safe and conrailroads are required to use automatic couplers or

venient repair for travelers.-SEAMONS V. FITTS, R. I., suffer penalty does not affect a company's common.

41 Atl. Rep. 863. law liability to its employees for negligence in falling to use equipments for coupling which have come into 80. MUNICIPAL CORPORATIONS-Impounding of stock. general use.-TROXLER V. SOUTHERN Rr. Co., N. Car., -Ky, St. $ 3490, subsec. 31, providing that the board of 82 S. E. Rep. 550.

council of a city of the fourth class "shall have the 71. MASTER AND SERVANT-Negligence-Assumed Risk.

right to establish and maintain a pound, and make -Perils from accidents, which an experienced em.

proper regulations for the impounding, keeping stock, ployer cannot foresee and guard against, are assumed

fixing fees for same and release of same, and regulate by the employee.-BEASLEY V. LINEHAN TRANSFER CO.,

and prohibit the running at large of stock on the Mo., 50 S. W. Rep. 87.

streets of a city," authorized an ordinance providing 72. MASTER AND SERVANT-Proximate Cause.-Em

for the sale of impounded stock.-ARMSTRONG V. ployees of a city were wheeling dirt, in barrows, from

Brown, Ky., 50 S. W. Rep. 17. a filter bed, up a "run" made of planks, and one was 81. MONICIPAL CORPORATIONS-Injuries on Sidewalks pushed off and injured by their running into each -Evidence.-In an action for injuries alleged to have other; the collision being caused by the first man stop been caused by a defective sidewalk, evidence of a ping to push into place a board placed by the em. similar accident to another at the same place is inad. ployees to break the jar caused by the barrows rolling missible.-GABLE V. CITY OF KANSAS CITY, Mo., 50 S. off the run onto the ground. Held, that the city's fail. W. Rep. 84. ure to properly secure the board, conceding it was its 82. MUNICIPAL CORPORATIONS - Maintenance of Un. duty to do so, was not the proximate cause of the in. guarded Pond.-A city is not liable for the death by jury, and it was not liable.-MOGOUGH V. BATES, R. I., drowning of a boy 7 years old from wading out about 41 Atl. Rep. 878.

10 feet into a pond in the commons within the city lim. 73. MORTGAGES-Defense by Claimants of Land.-One its.-SCHAUF'S ADMR. V. CITY OF PADUCAH, Ky., 50 8. who clalms land mortgaged by another as his own may W. Rep. 42.

[ocr errors]

83, MUNICIPAL CORPORATIONS - Negligence Prox. imate Cause.- Where the horse which plaintiff was driving became frightened, and ran into an obstruc. tion in defendant's street, and plaintiff was injured, and do negligence on plaintiff's part is shown, the obstruction, and not the running of the horse, is the proxiinate cause of the injury.-DILLON V. CITY OF RALEIGH, N. Car., 32 S. E. Rep. 548.

84. MUNICIPAL CORPORATIONS — Paving ContractsValidity.-A city may contract to pay the proportion of the entire cost of street paving which would have been assesgable against its property it such property had been owned by private individuals.-CITY OF HARRISBURG V. SEEPLER, Penn., 41 Atl. Rep. 893.

85. NEW TRIAL – Newly.discovered Evidence-Dam. ages.-A new trial will not be granted for newly-dig. covered evidence as to damages, unless it shows the verdict to be so manifestly excessive as to entitle de. tendant to a new trial.-ST. JOSEPH FOLDING BED CO. V. KANSAS CITY, FT. S. & M. R. CO., Mo., 50 S. W. Rep. 85.

86. PARTNERSHIP - Purchase and Sale of Land-Settlement.-Where persons form a partnership for the purcbase and sale of land, and on selling the land take the purchaser's notes for the price, and on a settle. ment divide the notes between them, such notes are thereby converted into the individual property of each partner.-SPENCER V. JONES, Tex., 60 S. W. Rep. 118.

87. PARTNERSHIP-Rights of Partners-Contracts.-A partner may compel application of assets of the firm to the payment of its debts, and have the surplus applied to what may be due bimsell on account, and on dissolution have his proportionate share of what re. mains.-SUMMERS V. HEARD, Ark., 50 S. W. Rep. 78.

88. PLEADING-Amendments - Departure.-Where a petition on which plaintiff obtained an attachment against property of defendant, a pon-resident, counted on judgments which were described, the dates, amounts, and parties being given, plaintiff will not be permitted to file an amended petition, after defendant has appeared, setting up judgments of different dates and amounts, and between different parties, such amended petition not being a continuation of the orig. inal action, but the substitution of a new cause of action.-SEYMOURE V. FRANKLIN, U. S. C. O., W.D. (Mo.), 92 Fed. Rep. 122.

89. PRINCIPAL AND AGENT-Power of Attorney-Revo. cation.-A power of attorney to attend to a farm, col. lect the rents, apply them to the necessary expenses, and turn the balance over to the principal, and providing that the agent is not to advance any rents before due, except when absolutely convenient," does not im. ply any obligation on the agent to make advances to bis principal; and hence the latter can revoke the power of the will, although such advances have in fact been made.-Smith V. DARE, Md., 41 Atl. Rep. 909.

90. PRINCIPAL AND SURETY-Notice-Agency.-Where a bank, before discounting a note, told the maker that three certain persons would be sufficient security thereon, the fact that it was informed that one of the three refused to sign does not charge it with constructive notice of an agreement between the signing sureties and the maker that the latter was not to use the note without procuring the signature of the other proposed surety.-FARMERS' BANK OF ROXBORO V. HUNT, N. Car., 32 S. E. Rep. 546.

91. PROCESS Summons' – Computation of Time.Gen. Laws, ch. 253, § 1, providing that a writ issued from a district court shall be served "not less" than six days before its return day, includes the return day as one of the six days.-MATHEWSON V. HAM, R. I., 41 Atl. Rep. 871.

92. RAILROADS_Taxation – Exemption.-An exemp. tion from taxation granted a railroad is personal to it, and does not pass to a purchaser without express statutory authority.-BALTIMORE, ETC. RY. Co. v. MAYOR, ETC. OF OCEAN CITY, Md., 41 Atl. Rep. 922.

93. RAILROAD COMPANY Right of Way – License.The license to a railroad which results when a land

owner permits its line to be constructed on his land without (objection cannot be revoked after the track has been constructed, so long as it is used in the opera. tion of the railroad.-FT. WORTH & N. 0. RY. Oo. v. SWEATT, Tex., 50 S. W. Rep. 162.

94. RECEIVERS-Suit against in Another Jurisdiction. - A court has no jurisdiction in a sult by a creditor of an insolvent corporation agalpst receivers appointed by another court, though the sult is brought by leave of such court, to compel the receivers to pursue apy particular course for the recovery of property or ag. sets of the corporation, nor to control them in the management of thọ property, as such matters belong exclusively to the court, and in the cause in which they were appointed.-FRENCH V. UNION PAC. Ry. Co., U.S.O.O., 8. D. (N. Y.), 92 Fed. Rep. 26.

95. RELEASE-Capacity of Party.-A party cannot avoid a release merely because at the time of its execution her understanding was impaired by suffering and oplates, and she was not in possession of her full mental powers, where the other party had no knowl. edge of her incapacity, unless her condition at the time was such as to render her unable to understand the effect of the contract.-COONEY V. LINCOLN, R. I., 41 Atl. Rep. 867.

96. REWARD-Finality of Conviction.-To entitle one to a reward offered for the arrest and conviction of an offender, it is not necessary that he should personally and alone make the arrest, he being entitled to the ag. sistance of the arresting officers of the county.-STONE V. WICKLIFFE, Ky., 50 S. W. Rep. 44.

97. SALES — Fraudulent Representations.-A geller seeking to recover goods alleged to have been obtained under false representations made to a mercantile agency as a basis of credit, on which he relled, must show that the buyer made the statement to the agency as a basis of credit; that the statement was false; that the agency gave the buyer a rating on such statement to which he was not entitled on a fair statement of his financial condition; and that such rating was known to the seller, and on the faith of it credit was extended. -SCHWARTZ V. MITTENTHAL, Tex., 50 8. W, Rep. 182.

98. SALES-Future Delivery-Validity-Principal and Agent-Burden of Proof.-1 Rev. St. § 1869, provides that every contract of sale of grain for future delivery sball be void unless it is the bona fide intention of both par. ties when the contract is made that the grain shall be actually delivered and recelved at maturity of the con. tract; and section 1860 makes it incumbent on the party suing to enforce such contract to assume the burden of showing a compliance with such requirements. Held, that though an agent contracts in good faith in bis own name with other parties for future delivery of grain, with the bona fide intention of both to actually deliver it, he cannot recover of his principal for losses he may have sustained, unless he shows that it was the bona fide intention of his principal to actually receive the grain at the maturity of the contract.-HARVEY V. DOTY, S. Car., 32 S. E. Rep. 501.

99. SALES-Rescission.-In an action to rescind a sale of goods alleged to have been bought with a fraudu. lent intention not to pay for them, a charge that the mere fact of the buyer's insolvency is insufficient to avoid the sale is erroneous, as being on the weight of the evidence.-WILLIS V. STRICKLAND, Tex., 50 S. W. Rep. 159.

100. TAXATION-Assessment.-Where two lots belong to one owner, and form one parcel of land, they may be assessed for taxation together, in the absence of any constitutional or statutory provision to the con. trary.-GUERGIN V. CITY OF SAN ANTONIO, Tex., 50 S. W. Rep. 140.

101. TAXATION-Cattle.-Cattle shipped into the State, under a bill of lading which allows of their being led for an indefinite time and then shipped to a point in another State, at a through rate from the original point, the balance of the freight pot to be paid if they are not so reshipped, are taxable in the State while

there being fattened at the owner's peng.-WAGGONER V. WHALEY, Tex., 80 8. W. Rep. 153.

102. TAXATION-Exemptions_United States Notes.General Tax Law 1866, as amended May 16, 1894, provides that property, bonds and other securities of the United States shall be exempt from taxation, and also that private corporations, except such as are expressly exempt, shall be assessed for the full amount of their property and valuable assets. Act Cong. Aug. 13, 1894, provides that United States legal tender notes and certificates payable on demand, and circulating as currency and gold, silver or other coin, shall be subject to taxation as money on hand, under the laws of any State. Held, that United States notes, commonly called "greenbacks," United States treasury notes, and gold and silver certificates, did not come within the words, "securities of the United States," which are by law exempt from taxation, and are liable therefor. -STATE V. MAYOR, ETC. OF CITY OF NEWARK, N. J., 41 Atl. Rep. 848.

103. TRESPASS ON LAND-Ownership-Adverse Posses. sion.-Because an entry on land is with color of title, it does not always follow that adverse possession can be proved by less evidence than when the entry is without color of title; the weight to be given the latter usually being for the jury to determine, on the circum. stances of the case and the nature of the color of title. -MERWIN V. MORRIS, Conn., 41 Atl. Rep. 865.

104. TRUST DEPOSIT-Evidence.-No trust is created, as a conclusion of law, by a deposit in a savings bank in the depositor's own name as trustee for his son, in the absence of evidence of any intent on bis part to do 80 except in case of his death.-PEOPLE'S SAV.. Bk. V. WEBB, R. I., 41 Atl. Kep. 874.

105. TRUSTS-Life Estates — Remainders.-Testatrix provided that a portion of her estate be held in trust, the income to be expended in support of a son for life, but he was not to control any of the principal. After his death the principal was to be equally divided between two other brothers or their helrs, unless they disposed of it by wlll. One of the latter died, devising his interest in the trust estate to a legatee, who as. signed it to the brother for whom it was held in trust. Held, that there was no merger of the life estate in the remainder, since it was the intention of testatrix to keep the estates separate.-WEHRHANE V. SAFE DEPOSIT & TRUST Co., Md., 41 Atl. Rep. 930.

106. USURY-What Constitutes.-Where a pote pro. vides for interest in advance at the rate of 8 per cent. per annum, and that unpaid interest shall draw inter. est at the same rate, the agreement is not usurious, under Rev. Stat. $ 1390, providing that no greater rate of interest can be charged, by written agreement, than 8 per cent. By divided court.-NEWTON V. WOODLEY, 8. Car., 32 S. E. Rep. 531.

107. VENDOR AND PURCHASER-Fraudulent Misrepre. sentations.-Promissory representations by the vendors of lots in a proposed town as to industries to be eg. tablished and public improvements to be inade by them and others, though not carried out, do not entitle the purchaser to a rescission on the ground of fraudu. lent misrepresentation. – LIVERMORE V. MIDDLESBOROUGH TOWN.LANDS Co., Ky., 50 S. W. Rep. 6.

108. VENDOR AND PURCHASER-Fraudulent MisrepreBentations-Rescission.-A purchaser is not entitled to a rescission by reason of misrepresentations made by remote vendors in selling the property.-JONES v. MIDDLESBOROUGH TOWN-LANDS CO., Ky., 50 S. W. Rep. 28.

109. VENDOR AND PURCHASER--Money Held in Escrow. -Where purchase money for land was deposited in a bank, under an agreement that it was to be paid to the vendor upon his removing a cloud upon the title, caused by the levy of an execution upon the land, the grantor is not entitled to the deposit by showing that the levy bad, in fact, constituted no lien upon the land, where no steps have been taken to remove the cloud.-FRICHOTT V. NOWLIN, Tex., 50 8. W. Rep. 164.

110. VENDOR AND PURCHASER-Rescission.-The nonfulfillment of promissory representations, made in good faith by the vendors or others, in public speeches, at a sale of town lots, does not entitle purchasers to a rescission.-PINE MOUNTAIN IRON & COAL CO. V. FORD, Ky., 50 8. W. Rep. 27.

111. WILLS- Acknowledgment. - Where an instru. ment, proved to have been executed, is, by its terms, to take effect after the maker's death, no evidence of publication or acknowledgment on his part that it is a will is necessary.-IN RE KISECKER'S ESTATE, Penn., 41 Atl. Rep. 886.

112. WILLS-Deviseg-Life Interests.-Where a will, bequeathing an aliquot part of the residue of an estate to a legatee for life, with remainder over, fixed no time for the commencement of the life use, the legatee is entitled to the income of the bequest, as it may be finally ascertained, from the date of the testator's death; and the rule is not modified by the fact that there is a direction to pay the fund to trustees, who are to invest and pay over the income.-IN RE BROWN'S ESTATE, Penn., 41 Atl. Rep. 890.

113. WILLS - Estate in Remainder.-Testator devised certain land to executors for use of his son during his natural life; he to remain in possession unless efforts were made to subject the land to his debts, in which event the executors were to take possession." At his death the land was to be divided between his survip. ing children, or, should he die without children, his estate was to revert for division as the residue was de. vised under the will, to his daughters and one G. Held, that G was entitled to a contingent remainder. -PEOPLE'S LOAN & EXCHANGE BANK OF LAURENS V. GARLINGTON, S. Car., 32 S. E. Rep. 513.

114. WILLS - Forgery Evidence.-On an issue whether a will whereby testator disposed of her prop. erty to the exclusion of her husband was a forgery, declarations of testator, made prior to the alleged ex ecution of the will, to the effect that she did not intend to leave her husband anything, are inadmissible.SWOPE V. DONNELLY, Pepp., 41 Atl. Rep. 882.

115. WILL-Legacies-Vested Interests.-A bequest of a fund in trust with directions to pay the corpus thereof to a legatee on the death of one to whom the income is to be paid during his life, vests an equitable interest in the corpus of the fund in the legatee.-CASEWELL V. ROBINSON, R. I., 41 Atl. Rep. 877.

116. WILLS Posthumous Children.-A testator de. vised certain land in trust for a daughter for life, remainder to her children, if any; if not, to his two youngest children. He then devised other land in trust for his wife for life, remainder to the two chile dren; but, if the wife should bear a posthumous cbild, it was to share with the two children in the "above land." Held that, on the death of the daughter with out issue, the two children and the posthumous child took her share in equal portions.-CLARK V. BENTON, N. Car., 32 8. E. Rep. 555.

117. WILLS – Trusts — Remainders.-A devise was in trust to two daughters, to be divided when they reached majority; if both died before majority, remainder to two other daughters; and, in case testator had a posthumous child, it was to receive its "propor tionable share." Held, that the posthumous child took only in case the first two daughters died before majority.-CLARK V. BENTON, N. Car., 32 S. E. Rep. 556.

118. WITNESS-Examination – Leading Questions.Where it was a material question whether a person injured at a railroad crossing was exercising due care, and on such issue the existence of obstructions to the view was material, interrogatories so framed that, by a simple affirmative or negative answer, the witness could say that she did not hear the train or the signals, and that there were bushes and care beside the track, whereby she could not see the approaching train, should be stricken out as leading.-SAN ANTONIO & A. P. RY, CO. V. HAMMON, Tex., 50 S. W. Rep. 123.


Central Law Journal. viewed in the very able opinion delivered by

the Supreme Court of Connecticut (In re

Russell, 51 Conn. 577), and are there distinST. LOUIS, MO., MAY 26, 1899.

guished from such cases as that which is pre

sented by the Illinois court. The opinion of the Supreme Court of Illinois, in Hogan v. Stopblet, just handed down,

A recent issue of the New York Law Jourmight be read with interest, in connection nal contains an instructive paper on the docwith the case of United States v. Matthews, trine of res gestae, wherein it is sought to innoticed in last week's issue of this Journal, troduce declarations of a person in his or her pagę 387, wherein the Supreme Court of the own favor, suggested by a late New York United States considered the question of re case-Quinn v. Pietro-decided by the New wards to public officers. This later decision York Supreme Court. The writer of the of the Illinois Supreme Court is in line with paper, reviewing the New York cases on the the general doctrine of law, there laid down, subject, comes to the conclusion that "the against the right of public officials to claim New York Court of Appeals construes the such reward, though the United States court,

doctrine of res gesto as strictly as any Amerconstruing a statute, found grounds in that ican tribunal.” The case above mentioned, case upon which to uphold the payment of re decided by the supreme court, was an action ward to a public officer. In the Illinois case for wrongfully causing death by defendant it is held that a sheriff, whose fees are fixed driving over a boy riding a bicycle. It was by law, and whose duty it is to arrest a guilty held that defendant's declarations on being person within his jurisdiction, cannot recover arrested, in which he said, "Damn the bicycle a reward offered therefor, though he made anyway; they are no good,” were admissible extra exertions and incurred expenses not as tending to show his hostility to bicycles covered by the legal fees he was authorized

and their riders, and as affecting the probto charge, and that a sheriff, not being en- ability that he would, when upon the road, be titled to recover a reward for arresting a crim

indifferent to the rights of riders of such inal (it being against the policy of the law), vehicles. Here the ruling was to admit declacannot recover a reward offered for arrest and rations of a person, not in favor of, but conviction of a criminal (it being in divisible), against his own interest, and, even though a though he aided in securing his conviction. considerable period of time had intervened

In addition to the cases cited by the United between the casualty and the arrest, it was States Supreme Court in the Matthews case, not in violation of, but rather in harmony the Illinois court cites Lees v. Colgan, 120 with, the analogies of the law to hold such Cal. 262; Marking v. Needy, 8 Bush, 22; Ex declarations competent. parte Gore, 57 Miss. 251; Monroe Co. v. In Waldele v. R. R. Co., 95 N. Y. 274, on Bell (Miss.), 18 South. Rep. 121; Thornton the other hand, an interval of about thirty v. Railway Co., 42 Mo. App. 58; Kick v. minutes was held sufficient to vitiate for adMerry, 23 Mo. 74; Weaver v. Whitney, 1 missibility under the doctrine of res gestee Hopk. 13; Hatch v. Mann, 15 Wend. 45. declarations alleged to have been made by The courts, both in this country and in Eng the deceased. land, are practically unanimous in declaring "The general underlying principle of this that a public officer, working for a fixed com decision,” says the New York Law Jourpensation, or whose fees are prescribed by nal, commenting upon the Quinn case, law, cannot deinand or contract for a reward "is one that commends itself to common for services rendered in the line or scope of sense and the sentiment of justice. Self-seryhis official duty. There are some decisions ing declarations should not be admissible, exwhich hold to the contrary, but these decis cept under exceptional circumstances and ions will be found upon examination to be where the probability of their producing recases where the officer arrested the offender sults of partiality and prejudice is eliminated. beyond his territorial jurisdiction, or cases We have on previous occasions argued in a arising under particular statutes wbich did similar strain in favor of a strict limitation of not make it the duty of the officer to make the doctrine of admissibility of dying declarathe arrest. Many of these decisions are re tions.”


CONSTITUTIONAL LAW-CRIMINAL LAW-WITNESSES RECEIVING STOLEN PROPERTY.-In Kirby v. United States, 19 S. C. Rep. 574, decided by the United States Supreme Court, it was held that so much of Act March 3, 1875 (18 Stat. 479, ch. 144, sec. 2), as provides that the judgment of conviction against the principal in the crime of embezzlement or larceny of property of the United States shall be evidence in the prosecution against a receiver thereof that the property was embezzled or stolen, is in violation of Const. Amend. 6, declaring that an accused shall be confronted with the witnesses against him. The court said in part: “As shown by the above statement, the charge against Kirby was that on a named day he feloniously received and had in his possession, with intent to convert to his own use and gain, certain personal property of the United States, thoretofore feloniously stolen, taken and carried away by Wallace, Baxter and King, who had been indicted and convicted of the offense alleged to have been committed by them.

"Notwithstanding the conviction of Wallace, Baxter and King, it was incumbent upon the government, in order to sustain its charge against Kirby, to establish beyond a reasonable doubt (1) that the property described in the indictment was in fact stolen from the United States; (2) that the defendant received or retained it in his possession, with intent to convert it to his own use or gain; and (3) that he received or retained it with knowledge that it had been stolen from the United States.

“How did the government attempt to prove the essential fact that the property was stolen from the United States? In no other way than by the production of a record showing the conviction under a separate indictment of Wallace, Baxter and King; the judgments against Wallace and Baxter resting wholly upon their respective pleas of guilty, while the judgment against King rested upon a trial and verdict of guilty. With the record of those convictions out of the present case, there was no evidence whatever to show that the property alleged to have been received by Kirby was stolen from the United States.

“We are of the opinion that the trial court erred in admitting in evidence the record of the convictions of Wallace, Baxter and King, and then in its charge saying that, in the absence of proof to the contrary, the fact that the property was stolen from the United States was sufficiently established against Kirby by the mere production of the record showing the conviction of the principal felons. Where the statute makes the conviction of the principal thief a condition precedent to the trial and punishment of a receiver of the stolen property, the record of the trial of the former would be evidence in the prosecution against the receiver to show that the principal felon bad been convicted; for a fact of that nature could only be established by a record. The record of the con

viction of the principals could not, however, be used to establish, against the alleged receiver, charged with the commission of another and substantive crime, the essential fact that the property alleged to have been feloniously received by him was actually stolen from the United States. Kirby was not present when Wallace and Baxter confessed their crime by pleas of guilty, nor when King was proved to be guilty by witnesses who personally testified before the jury. Nor was Kirby entitled of right to participate in the trial of the principal felons. If present at that trial, he would not have been permitted to examine Wallace and Baxter upon their pleas of guilty, nor cross-examine the witnesses introduced against King, nor introduce witnesses to prove that they were not, in fact, guilty of the offense charged against them. If he had sought to do either of those things—even upon the ground that the conviction of the principal felons might be taken as establishing prima facie a vital fact in the separate prosecution against himself as the receiver of the property-the court would have informed him that he was not being tried, and could not be permitted in any wise to interfere with the trial of the principal felons. And get the court below instructed the jury that the conviction of the principal felons upon an indictment against them alone was sufficient prima facie to show, as against Kirby, indicted for another offense, the existence of the fact that the property was stolen -a fact which, it is conceded, the United States was bound to establish beyond a reasonable doubt, in order to obtain a verdict of guilty against him." The court fortifies its decision by a long array of anthorities.

JUDICIAL SALE_SETTING ASIDE-INADEQUACY OF PRICE.-In McGann v. Segal, 92 Fed. Rep. 252, decided by the United States Circuit Court of Appeals for the Sixth Circuit, it was held that mere inadequacy of price, realized at a master's sale in equity, unless so great as to shock the conscience, will not justify the setting aside of the sale and the reopening of biddings, but, to warwart such action, there must be additional circumstances, which render it inequitable to permit the sale to stand. It appeared that a railroad was sold by a master for a price clearly inadequate, but not so greatly so as to justify a refusal to confirm. The sale was fairly conducted, and no fraud was practiced by the purchaser, but there was no opposing bid, because of the accidental failure of arrangements made by each of two intending bidders to make a deposit of $25,000 required to qualify them to bid. Each of such intending bidders was interested in the property, and the amount realized therefor, aside from any interest as a purchaser, and each had made an arrangement for the deposit, such as he might reasonably rely on without being chargeable with negligence. It was held that their failure to bid was due to accident, such as, together with the inadequacy of the price realized, justified the

« AnteriorContinuar »