Imágenes de páginas
PDF
EPUB

CARRIERS.
1. THE LIABILITY OF A CARRIER AS SUCH IS NOT PRETENTED FROM AT

TACHING by the fact that it is not ready to perform its duty and
retains the property in its possession because not then able to provide
the means of transportation. London etc. Ins. Co. v. Rome etc. R. R.

Co., 752.
2 CARRIERS OP LIVESTOCK-NEGLIGENCE-SUFFICIENCY OF PLEADING AND

PROOF.-In an action by a shipper of livestock against a railroad com-
pany to recover the value of an animal lost a declaration which alleges
both delay in the transportation and failure to furnish an opportunity
for feeding and watering the stock justifies a recovery upon proof of
omission on the part of the company to furnish an opportunity to the
shipper to feed and water the stock, although the company is not liablo
for the delay. Smith v. Michigan Cent. R. R. Co., 440.

See ELEVATORS; RAILROADS, 5-8.

CERTIORARI.
CERTIORARI AS WRIT OF REVIEW.-The writ of certiorart cannot be used

to serve the purpose of a writ of error or appeal with bill of exceptions.
The granting of the writ is not a matter of right, but in the legal dis.
cretion of the court; and, in order to review and quash the proceedings
of an inferior tribunal upon such writ, the court must have proceeded
in the case without jurisdiction, or its procedure must have been clearly
illegal, or unknown to the law, or essentially irregular.-Hunt v. Jack-
sonville, 214.

CHATTEL MORTGAGES.
1. A DESCRIPTION IN A CHATTEL MORTGAGE IS SUFFICIENT if it will enable

third persons, aided by the inquiries which the instrument indicator

and directs, to identify the property.--Andregg v. Brunskill, 388.
2 THE DESCRIPTION IN A CHATTEL MORTGAGE referring to the ownership

or location of the property mortgaged is of great importance, and the
omission of these data may leave imperfect and void a description,
which, were they present, might properly be sustained. Andregg v.

Brunskill, 388.
8. A DESCRIPTION OF PROPERTY MORTGAGED as "fourteen steers one year

old, crop off left ear, and slit in the same ear; four heifers one year old,
marked on ear as above steers," without any reference or statement
respecting the location or ownership of the property, is insufficient and
void. Andregg v. Brunskill, 388.

See EVIDENCE, 12; FRAUDULENT CONVEYANCES, &

CHECKS.
1. BANKING.—A CHECK PAYABLE TO ORDER is a bill of exchange payablo to

order on demand. First Nat. Bank v. Northwestern Nat. Bank, 247.
2. DILIGENCE AS TO PRESENTMENT. — The rule of diligence as between

indorses and indorser is the same as between payee and drawer. Hence
the indorser of a check is not liable thereon if it is not presented for
payment within a reasonable time after its indorsement and delivery.

Gifford v. Hardell, 925.
& COMMENCEMENT OF REASONABLE TIME FOR PRESENTATION.- As between

the indorsee and indorser of a check the period of reasonable time for

presentation begins when the check is delivered to the indorse.

to his agent. Gifford v. Hardell, 925.
& DILIGENCE AS TO PRESENTMENT IN DISTANT PLACL. —Tho general ralo

of diligence as to the presentation of a check received in a place
distant from that of the bank upon which it is drawn is, that the check
must be forwarded to the latter place on the next secular day after its
receipt, and be presented for payment on the day after it has reached

such place by due course of mail. Gifford v. Hardell, 925.
& PERIODS FOR PRESENTATION.-Each indorsee of a check is allowed

the same period of time for presentation for payment, as between
himself and his immediate indorser, that the payee had a between
himself and the drawer. Gifford v. Hardell, 928.

See BANKS, 4-6; NEGOTIABLE INSTRUMENTI,

CHOSES IN ACTION.
Boo EXECUTORS AND ADMINISTRATORS, L

CLOUD ON TITLE.
ACTIONS_PARTIES–DOWER.–A widow claiming a dower interest la lands

conveyed by her husband in his lifetime by deod in which she did not
join, and subsequently sold for taxes, is a necessary party to an action
to quiet title to the land. Thompson v. McCorkle, 334.

COLLATERAL ATTACK.
Boo BXECUTORS AND ADMINISTRATORS, 3, 5; JUDGMENTS, 4 11; Mas

RIAGE AND DIVORCE, 3-6; MORTGAGE, 13; PATENTI, 6–78 PUBLI
LANDS, I

COLLATERAL SECURITY.

See DURESS, 2

COLLUSION.
800 JUDGMENTS, 9, 11-13; MARRIAGE AND Divora, a

COMMISSIONERS

See STATES, 3, 4

COMMISSIONS
See BROKERA

COMMON CARRIERS

See CARRIERS.

COMMON LAW.

See RELEASE

COMPENSATION.

See OFFICERS, 6.

QOMPOUNDING FELONY.
DOMINIK.-Tho maker of a promissory cote cannot avoid paymund thered

on tho ground that it was given to compound a felony. City Nat Band
V. Kusvorm, 880.

COMPROMISE.
800 CONTRACTS, 13; Wills, 1-6

CONCEALMENT.
See FRAUDULENT CONVEYANCES.

CONFLICT OF LAWS.
Sue BOUTION, 1; EXECUTORS AND ADMINISTRATORS, 9-11;, MARRIAGI

AND DIVORCE, 3.

CONSIDERATION.
See CONTRACTS, 5.

CONSTITUTIONAL LAW.
1. “DUB PROCESS OF Law” requires an orderly proceeding adapted to the

nature of the case, in which the citizen has an opportunity to be heard,
and to defend, enforce, and protect his rights. A hearing, or an opportu.
nity to be heard, prior to judgment, is absolutely essential. State v.

Billings, 525.
. DUB PROCESS OF LAW-RESTRICTING POWER TO CONTRACT.—The right

to contract necessarily includes the right to fix the price at which labor
will be performed and the mode and time of payment; and a statute
which restricts a person as to either of these essential elements of the
right to contract to a mode different from that enjoyed by the commu.
nity at large deprives him of liberty and property without “due process

of law." Low v. Rees Printing Co., 670.
See INSANE PERSONS; LEGISLATURE; STATUTES, 1-4; WITNESSES, +7.

CONSTRUCTION.
Soo CONTRACTS, 7; STATUTES.

CONTEMPT.
RITUBAL TO ANSWER QUESTIONS-HABEAS CORPUS.-A witness who refuses

to answer questions propounded to him concerning violations of the
Purity of Election Law by other persons with whom he has co-operated
may be lawfully committed for contempt until he shall answer, and
is not entitled to discharge upon habeas, corpus, if so committed. He
parte Cohen, 127.

CONTRACTS.
1. WHEN PERFECT Though THE PARTIES CONTEMPLATE ITS BEING RE-

DUCED TO A MORE FORMAL WRITING. —If the correspondence and tel.
egrams between the parties contain all the details of a contract it is
enforceable though they intended that their agreement should be for.
mally expressed in a single paper, which, when signed, should be the
evidence of what already had been agreed upon. Neither party has the
right to insist that such agreement should contain terms not stated in
the correspondence and telegrams, and if he does so insist, and refuses
to sign the agreement or perform the contract without such additional
torms, he is answerable for the damages sustained by his withdrawal
respects as valid and obligatory, where no statutory objection intor-
poses, as the written contract itself would be if executed. Neither
party is at liberty to refuse to perform or to enter into the agreement

from his contract. Sanders v. Potilitzer Bros. Fruit Co., 767.
1 A CONTRACT TO MAKE AND EXECUTE A CERTAIN WRITTEN AGREEMENT,

the terms of which are mutually understood and agreed upon, is in all
AL ST. REP., VOL. XLIII.-61

as stipulated. Sanders v. Pottlitzer Bros. Fruit Co., 757.
3. TIME AS ESSENCE OF.-In equity time is not regarded as of the essence of

a contract unless expressly stated to be so. Chabot v. Winter Park

Co., 192.
4. TIME, WHEN ESSENCE OF.-If a party to a contract for the sale of

lands is guilty of laches and negligence in performing, and the time
for performance has passed, the other party may, by giving notice, fix
a reasonable time for the performance of the contract, and has a right
to treat it as abandoned if performance is not completed in such rea.

sonable time. Chabot v. Winter Park Co., 192,
6. CONSIDERATION OF LEASE-DETRIMENT TO LESSOR.—The consideration for

a lease may as well consist in detriment due the lessor as in profit due
the lessee. Hence, if the possession of a company's electric light and
gas plant, and the use thereof, are transferred by a lease for two years,
under which the lessee is to take possession, manage, control, and oper.
ate the property, and to pay the company every three months during
the term all the receipts of the business, legs all necessary charges and
expenses, the contract is supported by a sufficient consideration, though
the lessee is not benefited by the contract. Visalia Gas etc. Co. V.

Sims, 105.
6. AMBIGUITY.-If a written order for the purchase of a chattel contains

the words “note for one hundred and ten dollars; three fall payments
at eight per cent,” the time of payment is uncertain and ambiguous,

and the order is incomplete on its face. Aultman v. Clifford, 478.
7. WRITTEN INSTRUMENTS-RULE OF CONSTRUCTION-ABSURDITY OR RE-

PUGNANCE.-If the ordinary meaning of the words employed in a write
ten instrument leads to a manifest absurdity or repugnance they may,
if the instrument as a whole will permit it, be varied or modified so as
to avoid such inconvenience, but no further. Kentzler V. American elc.

Accident Assn., 934.
8. STATUTE OF FRAUDS-Promise to Pay DEBT OF ANOTHER.-An agree-

ment by a creditor to forbear the enforcement of his debt is not a suffi.
cient consideration to support an oral promise of a third person to pay
that debt, although such third person makes the promise for the purpose
of subserving and promoting his own pecuniary interests. McKenzic v.

Puget Sound Nat. Bank, 844.
STATUTE OF Frauds-PROMISE TO PAY DEBT OF ANOTHER. – A considera-
tion to support an oral promise to pay the debt of another to be valid
must be of a peculiar character, and must operate to the advantage of
the promisor, and place him under a pecuniary obligation to the prom.
isee independent of the original debt, which obligation is to be dis-
charged by the payment of that debt. McKenzie v. Puget Sound Nat.

Bank, 844.
10. Tort, BREACH OF CONTRACT WHEN MAY AMOUNT TO.-If one person
11. EVIDENCE, CONTRACT TO PROCURE. -A contract is void as against publio

owes another a duty the breach of which is a tort, the fact that the
former has expressly contracted with the latter for the performance of
such duty does not render its breach any the less a tort, but, if the duty
is imposed or created by the contract and otherwise did not exist, ita
breach is not a tort. Russell v. Polk County Abstract Co., 381.

policy if by it one of the parties agrees to secure such testimony as will
enable the other to win an existing or contemplated suit. It is not nec-
sary that the contract should contemplate the production of perjured
testimony. It is void because its tendency is to proinote unlawful

acts. Quirk v. Muller, 647.
12. CONTEST OF WILL-CONTRACT NOT TO CONTEST, How AFFECTED BY POB-

LIO POLICY-ENFORCEMENT OF CONTRACTS. - An heir's covenant not to
contest the will of his ancestor is not void as against public policy, or the
policy of the law that an invalid will shall not be established as a valid
will; but is in harmony with the paramount public policy that parties
of full age and competent understanding shall have liberty to contract,
and that their contracts, when entered into freely and voluntarily, shall
be held sacred, and shall be enforced by courts of justice. In re Estate

of Garcelon, 134.
18. A CONTRACT NOT TO CONTEST A Will is ONE THAT CONCERNS PRIVATE

PARTIES ALONE.-It is not against public policy, and is as much entitled
to be enforced as a valid compromise of the contest of a will, which,

when fairly made, is always enforced. In re Estate of Garcelon, 134.
Soo ADMIRALTY; CONSTITUTIONAL LAW; LIMITATIONS OF ACTIONS, B;

MUNICIPAL CORPORATIONS, 2-4; STATES, 2–5; STATUTES, 2, 3.

CONVEYANCES.
See Deeds; MORTGAO ES,

CORPORATIONS.
1. STOCKHOLDERS—LIABILITY ON STOCK SUBSCRIPTION8.—The fact that part

of the stock of a corporation has been illegally subscribed by another
corporation, all of the remaining subscribers for stock having taken
with knowledge of that fact, and having paid part of their subscrip.
tion to enable the corporation to commence business, cannot be success.
fully asserted by thein to escape liability on their stock subscriptions in
an action against them by the creditors of the corporation. Cole v.

Satsop R. R. Co., 858.
2 STOCKHOLDERS-LIABILITY FOR STOCK SUBSCRIPTIONS MADE BY THEM

Through TRUSTEES. --Under a complaint alleging that stock in a cor-
poration has been subscribed for by a party as “trustee,” who, in mak.
ing such subscriptions, has acted as agent for certain subscribers at
their request, and for the benefit of each of them in proportion to his
individual subscription, the creditors of the corporation may maintain
an action against the real parties in interest to recover the amount of
their subscriptions, and, without alleging fraud, may show by parol
evidence that the subscription is in fact other than what upon its faco

it appears to be. Cole v. Sutsop R. R. Co., 858.
& By-Laws–PROXIES. - If the statute allows stockholders of a corporation

to be represeuted at all elections by proxies of their own selection, a
by-law of a banking corporation, providing that no proxy shall be
voted by any one not a stockholder of the corporation, is void, as being
an infringement upon the statute. People's Home Sav. Bank v. Supos

rior Court, 147.
A LIMITATION UPON BY-LAWS.—A by-law cannot take away, or even abridge,

the substantial rights of a stockholder of a corporation. People's Home
Sav. Bank v. Superior Court, 147.

« AnteriorContinuar »