Imágenes de páginas

the kind of evidence that may be offered lies for a conspiracy unjustly to prosecute a dethat is the question to be decided, but what

fendant, but we apprehend that this action is is sufficient to prove a fact that is the basis

somewhat different, in form at least, from an ac

tion on the case for a malicious prosecution. The of a criminal prosecution. With this idea

gist of this action is the malicious prosecution. clearly in mind, it becomes more easy to de That of the other is the conspiracy,—the combintermine what is requisite proof. The great ing of two or more to do an unlawful and injuweight of authority may be said to support

rious act. In the first case, we apprehend, the the doctrine that any evidence whatever, that

cause of action is complete before an acquittal.

In the other, the acquittal or termination of the is admissible on general principles, and

prosecution is necessary to enable the plaintiff to sufficient to satisfy the trior of the fact to maiatain the suit. But, however this may be, the requisite degree of certainty, under prin we think that it would be holding the rule to ciples pertaining to all criminal proceedings, unnecessary strictness to hold that the defendants is sufficient to prove a marriage in fact, valid

are not sufficiently and clearly charged with a

joint act when but one general offense is charged, and formal under the law. There is no reason

and this averred to be committed by all with the why there should be a different rule as to same unlawful motive, and that they all contrived the proof of one fact, on a prosecution for a to effect it.” The language of the opinion is not criminal offense, than there should be in re very clear. There seems to be an ambiguity as gard to any other fact essential to the main

to which action reference is made,-whether to tenance of the charge. Herein there is no

malicious prosecution or conspiracy. It is stated

that the cause of action is complete before acdistinction between civil and criminal cases,

quittal. If in reference to an action for malicious for as to the kinds of proof they are alike, prosecution, it is against all the authorities; and differing only in the measure required. a mere conspiracy, without carrying out the purCHARLES L. BARTLETT.

poses of the conspiracy or perpetrating some wrong, is not the ground for a civil action. In

Savile v. Roberts, 1 Ld. Raym. 378, Chief Justice MALICIOUS PROSECUTION-TERMINATION OF Holt said: “An action will not lie for tbe great

PROSECUTION – COMPLAINT SUFFICI. est conspiracy imaginable, if nothing be put in ENCY.

execution, but if the party be damaged the action DOWDELL V. CARPY.

will lie, from whence it follows that the damage Supreme Court of California, July 18, 1900.

is the ground of action." And in Herron v.

Hughes, 25 Cal. 560, this court says: "A simple Where the complaint in an action for malicious pros

conspiracy, however atrocious, unless it results ecution showed that in the former action plaintiff

in actual damage to the party, never was the sub(now defendant) had recovered judgment, which had been reversed in the supreme court, and the cause

ject of a civil action; and though such conremanded for new trial, it was bad on demurrer, as it

spiracy be charged, the averment is immaterial failed to show that the litigation was without prob.

and need not be proved. When two or more are able cause or that it had terminated.

sued for a wrong done, it may be necessary to VAN DYKE, J.: The demurrer to the complaint prove a previous combination in order to secure was sustained, and the appeal is taken from the a joint recovery, but it is never necessary to allege judgment entered thereon. The sufficiency of it, and, if alleged, it is not to be considered as of the complaint is the only question presented on the gist of the action. That lies in the wrongful appeal. It is contended on the part of the apel and damaging act done.” In Taylor v. Bidwell, lant that the action is for the recovery of damages

65 Cal. 489, 4 Pac. Rep. 491, it is said: “The for a conspiracy between defendants 'to injure gravamen of the action is the alleged malicious plaintiffs. The case cited and relied upon to sup

prosecution. The averments of the complaint port this theory is Dreux v. Docem, 18 Cal. 83. with respect to the conspiracy of the defendants That was an action, however, for malicious are not of the gist of the action. That lies in the prosecution. Several defendants were embraced wrongful and damaging act done.” In that case in the action, the complaint averring that the the complaint averred, in substance, that the dedefendants, contriving and maliciously intending

fendants confederated together for the purpose of to injure the plaintiff, etc., procured him to be

falsely charging the plaintiff and maliciously indicted.” A demurrer was interposed, among

prosecuting him for the crime of arson. In the other grounds, because no averment was made present case the complaint charges the defendof any joint agency on the part of the plaintiffs ants with conspiring and combining together to in instituting the prosecution, wbich demurrer prosecute a civil action for the purpose of obtainwas overruled. It is said in the opinion on the ing a judgment of foreclosure and selling propappeal: "It is well settled that this action for

erty of the plaintiff thereunder, wrongfully promalicious prosecution will lie against several de çuring the appointment of a receiver therein, and fendants. It is argued, however, tbat a conspir- for dissuading parties from bidding at said foreacy must be averred. It is true that an action closure sale, thereby injuring their business and

sacrificing their property, to their damage, etc. therefore, is fatally defective. Hibbing v. Hyde, Parker v. Huntington, 2 Gray, 124, was an action 50 Cal. 206; Anderson v. Coleman, 53 Cal. 188; to recover damages against the defendants for Holliday y. Holliday, 123 Cal. 26, 55 Pac. Rep. conspiring together to maliciously prosecute the 703; Dennebey v. Woodsum, 100 Mass. 195; plaintiff upon a charge of perjury. The question Closson v. Staples, 42 Vt. 209; Carpenter v. Nu:arose as to whether the case was an action for ter (Cal.), 59 Pac. Rep. 301. The demurrer was conspiracy or for malicious prosecution. The properly sustained, and the judgment is affirmed. court used the following language: “By the NOTE.- Recent Decisions on Termination of Pros. ancient forms of pleading, all actions for malicious ecution in Actions for Malicious Prosecution.-One prosecution, where two or more were made de cannot maintain an action for the malicious prosecufendants, were laid with a charge of conspiracy. tion of a civil action against him, until after its termi. This practice is supposed to have had its origin nation in his favor. Davis v. Stuart, 47 La. Ann. 378, in the phraseology of St. 21, Edw. I., which

16 South. Rep. 871. Dismissal of a warrant by a gave the form of writs in such cases by using the

justice with the consent of the party prosecuting is a words: Do placito conspirationis et transgres

sufficient determination of the proceeding to author.

ize an action for malicious prosecution. Welch v. sionis.' But the charge of conspiracy was never Cheek, 115 N. Car. 310, 20 S. E. Rep. 460. A nolle deemed essential to an action, and in modern

prosequi entered in a criminal prosecution is a suffi. times this form of allegation has fallen into dis cient termination of the prosecution to authorize the use. By the rules of common law, an action of defendant to sue for malicious prosecution, unless conspiracy, or, to use an equivalent expression, the record shows that the nolle prosequt was entered a writ of conspiracy, was never allowed but in at his instance. Marcus v. Bernstein (N. Car.), 23 S. two cases--one, for conspiracy to procure a man

E. Rep. 38, 117 N. Car. 31. The dismissal of a crim. to be indicted for treason; the other, for con

inal prosecution by a justice is a sufficient termination

to justily suit for malicious prosecution. Porter v. spiracy to prosecute a man for felony by which

Martyn (Tex. Civ. App.), 32 8. W. Rep. 731. That life was put in danger. This form of action,

the prosecution seems to have been instituted with. however, has become obsolete in those cases out justifiable cause will not authorize an action where it was allowed at common law, having before a final termination of the prosecution. Hinds been superseded by an action on the case in the v. Parker, 42 N. Y. S. 955, 11 App. Div. 327. No nature of a conspiracy which furnishes an ad recovery can be had for malicious prosecution equate and more liberal remedy for malicious

unless the prosecution has terminated in plaint. prosecutions of every nature and description.

iff's favor. Von Koehring v. Witte (Tex. Civ. * * The gist of the action is not the con

App.), 40 S. W. Rep. 63. The failure of the

grand jury to indict plaintiff for an offense for spiracy, but the damage done to the plaintiff by

which he was maliciously arrested by defendant cor. the acts of the defendants; and that is equally poration fixed defendant's liability for punitive dam. great, whether it be the result of a conspiraey or ages. Proctor Coal Co. v. Moses (Ky.), 40 S. W. Rep. the act of a single individual. The insertion in 681. A discharge on habeas corpus of one committed the declaration of the averment that the acts were to await the action of the grand jury is not a termina. done in pursuance of a conspiracy does not tion of the criminal proceedings, sufficient to authorchange the nature of the action.” In this case,

ize an action for malicious prosecution. Hinds v. likewise, the gravamen of the action is the alleged

Parker, 42 N. Y. S. 955, 11 App. Div. 327. That, up

to time of the trial of the action, which was begun malicious prosecution, and to support such action

two days after plaintiff had been discharged on habeas it must appear that the prosecution complained

corpus from commitment to await the action of the of was not only malicious, but without probable grand jury, no further steps had been taken in the cause, and that such prosecution has terminated. criminal proceedings, does not show that such pro. In this case the complaint shows that the prose ceedings had been finally disposed of. Hinds v. cution complained of resulted in a judgment in Parker, 42 N. Y. S. 955, 11 App. Div. 327. It must be the superior court in favor of the plaintiff therein;

shown that the prosecution was legally terminated that an appeal was taken, and such judgment was

before the commencement of the action; but plaintiff reversed. By reference to the case in this court,

need not have been acquitted of the charge after a Carpy v. Dowdell, 115 Cal. 676, 47 Pac. Rep.

trial on the merits. The entry of a nolle prosequi,

followed by his discharge, is sufficient. Douglas v. 695, it appears that a new trial was ordered. And

Allen (Ohio Sup.), 46 N. E. Rep. 707. An action for it is not alleged, nor does it appear from the

malicious prosecution will lie at any time after entry complaint, that the litigation complained of had of final judgment in the court of last resort in the terminated before this action was brought, and action claimed to have been malicious, though the the fact that the first judgment was reversed does right to petition for a new trial on statutory grounds not raise a presumption of want of probable continues for a year thereafter, Foster v. Denison cause. The recovery of a judgment in a court of

(R. I.), 36 Atl. Rep. 93. The failure of a federal competent jurisdiction would rather show proba

grand jury to find an indictment against plaintiff on ble cause for bringing the action, although such

defendant's complaint is not a termination of the

prosecution in plaintiff's favor, if it finds an judgment may subsequently be reversed on

indictment on the same showing at a subsequent term. appeal. It does not appear from the complaint Von Koebring v. Witte (Tex. Civ. App.), 40 8. W. in this cause that there was a want of probable Rep. 68. On April 5, 1894, plaintiff, her attorney, cause, or that the litigation or proceedings com defendant, and the officer all appeared before the plained of were terminated; and the complaint, justice, and the case was postponed to April 19th. At

which no Important Legal Principles are DIIonssod of Interest to the Profession at Larke.

•12, 99

that time only plaintiff and her attorney appeared, and in response to inquiry the justice said there was nothing on the docket. The warrant was never returned, and nothing was ever done thereafter. Held, in an action for malicious prosecution, brought January 7, 1895, that the termination of the proceed. inga was sufficiently proven. Strehlow v. Pettit (Wis.), 71 N. W. Rep. 102. In an action for malicious prosecution, it appears that, in one of the prosecu. tions on which the action was based, the plaintiff was discharged on a writ of habeas corpus, on the ground of the insufficiency of the commitment, and a possible defect in the warrant; and, in the other, upon the statement that she could not give a bond and assur. ances that she would not harm defendants, who were seeking to compel her to give an undertaking to keep the peace, she was discharged on motion of the dis. trict attorney, and her own recognizance. Held, that an instruction that plaintiff's release upon the habeas corpus proceedings and the dismissal on the motion of the district attorney were each a sufficient termina. tion of the prosecution, for the purposes of this action, going to show a want of probable cause, is error. Holliday v. Holliday (Cal.), 53 Pac. Rep. 42. Though one arrested upon a criminal warrant be discharged by the magistrate, yet if the prosecutor, with due diligence, follows up the prosecution, and carries it on in a court having jurisdiction to try the case upon its merits, this is, in effect, a continuation of the orig. inal prosecution. Hartshorne v. Smith (Ga.), 30 S. E. Rep. 666. When a committing magistrate, upon ex amination, discharges from custody one arrested upon a warrant issued upon a complaint of a breach of the criminal law, the prosecution is terminated, so as to authorize an action for malicious prosecution. Ryder v. Kite (N. J. Sup.), 38 Atl. Rep. 754. An action for malicious prosecution cannot be maintained until the prosecution complained of has been legally terminated in favor of defendant therein. Stark v. Bindley (Ind.), 52 N. E. Rep. 804. A dismissal of prosecution to keep the peace at the suggestion of the district attorney, on being assured by the defendant that she would not molest complainant, and by her attorney that he anticipated no purpose on defend. ant's part to harm complainants, is not such a dismis. sal by defendant's procurement as not to be a final termination in her favor. Holliday y. Holliday (Cal.), 55 Pac. Rep. 703.


...... 69, 118 ARKANSAS .......

.......33, 43, 46, 52 CALIFORNIA..


..93 LOUISIANA....... 4, 18, 22, 34, 39, 53, 66, 79, 92, 108, 109 MARYLAND.........

........9, 20, 20, 50, 55, 67, 72, 73, 87, 110, 114 MINNESOTA........

........3, 19, 44, 45, 60, 68, 97, 112 MISSOURI..........

2, 11, 17, 35 MONTANA..........

.................102 NEW HAMPSHIRE.

16, 63, 111 NEW JERSEY

6, 40, 107 OHIO..............

58, 62, 67 OKLAHOMA........................................ ......30 OREGON............

....... 36, 37, 84 PENNSYLVANIA, 1, 5, 10, 21, 25, 49, 56, 64, 70, 80, 83, 86, 105,


....61 SOUTH DAKOTA.........

................74 TENNESSEE........

......... 47, 78, 100 TEXA$, 12, 13, 14, 15, 24, 28, 29, 31, 38, 48, 65, 76, 81, 82, 90, 98,

101, 103 UNITED STATES 0. C., 42, 51, 71, 75, 77, 85, 88, 91, 94, 95,

96, 104 UNITED STATES O.O. OF APP......

... 27, 41, 69, 89 UNITED STATES D. C..........

.........7, 8, 51, 54 1. ADMINISTRATOR - Accounting.-One who, before his appointment as administrator, deeds "all his rights, title, and interest of and id" land of which in testate died selsed, is not liable to the personal repre. sentatives or heirs or iatestate for the purchase money; no interest of intestate or the heirs being con. veyed or attempted to be copyeyed.-WILDERMOTH V. LONG, Penn., 46 Atl. Rep. 927.

2. ADMINISTRATION-Claims Against Estate-Walver of Notice.-A mere conversation between plaintiff and defendant after the death of the latter's husband, and before she had been appointed administratrix of his estate, in which she promised to pay plaintiff "every dollar ber husband owed him," did not constitute a presentation of a claim for allowance and a walver of notice, since, until defendant was qualified, she had no authority to bind the estate.-BAMBRICK V. BAMBRICK, Mo., 58 S. W. Rep. 8.

3. ADVERSE POSSESSION-Evidence.-Title to land by adverse possession may be shown by payment of taxes thereon, and notorious and continued assertion of claim thereto, by the claimant, in connection with the best and most practicable use of the soil for which it is adapted, uninterruptedly, for the limitation period provided by statute.-WHEELER V. GORMAN, Minn., 83 N. W. Rep. 442.

4. ARCHITECT-Llabilities – Detective Plans-Guar. antor.-The architect who prepared the plans and specifications of a building, and afterwards became the Contractor and agreed with the owner to put up the building according to plans and specifications, is responsible for any defect or insufficiency in the specifi. cations. He canuot «scape responsibility for defectiveness of the work by taking the ground that the de. fect was in the specifications and not in the work. He is responsible for both. The surety company which signs his bond to guaranty the safe execution of his contract as an "architect and contractor" 18 equally as responsible as the architect and builder for the defect. Iveness of the specifications or the work, where the "architect and builder" are one and the same person. -LOUISIANA MOLASSES CO. v. LE SASSIER, La., 28 south. Rep. 217.

8. ASSIGNMENT FOR CREDITORS-Exemption.-A cred. Itor who obtains bis judgment against an assignor for the benefit of creditors after the assignment obtains no llen, so that he can avail himselt of the clause in the judgment waiving the exemption only by execu


The American State Reports, Containing the Cases of

General Value and Authority Subsequent to those Contained in the "American Decisions" and "American Reports," Decided in the Courts of Last Resort of the Several States. Selected, Re. ported and Annotated, by A. C. Freeman, and the Associate Editors of the "American Decisions." Vol. 74. San Francisco: Bancroft. Whitney Com. pany, Law Publishers and Law Booksellers, 1900.

WEEKLY DIGEST 01 ALL the Current Opinions of ALL tho Stato and Torritorial Courts of Last Resort, and of the Sapromo, Ctroalt and District Courts of the United States, except thoso that are Published in Fall or Commontod upon in our Notos of Im. portant Decisions and except thos0 Opinions in

tion or attachment against the property reserved as an exemption in the deed of assignment.-IN RE SHIMP'S ESTATE, Penn., 46 Atl. Rep. 1037.

6. ATTORNEY AND CLIENT-Fees of Attorney.-Where a bill rendered by an attorney for prosecuting a sult for his client is not only fraudulently untrue as to Items for services not rendered, but Idflated through. out by charges beyond what the services were worth, and, with the retainer paid by his client, amounts to more than the sum recovered of defendant, it is within the rule that if the behavior of the attorney towards his client is dishonest, oppressive, or illegal, and shows a fraudulent intent, the court may proceed sum. marily against him for his misconduct.-TATE V. FIELD, N. J., 46 Atl. Rep. 952.

7. BANKRUPTCY-Discharge - Books of Account.Under Bapk. Act 1898, $ 14, providing that a bankrupt shall not be entitled to a discharge it, with traudulent Jotent to conceal his true flnancial condition, and in contemplation of bankruptcy, he has falled to keep books of account from which bis true condition may be ascertained, a discharge will not be denied upon Buch ground where it appears that most of the book. keeping in question was done before the bankrupt law was enacted, and it is not shown that it was in con. templation of bankruptcy.-IN RE MARX, U. 8. D. O., D. (Ky.), 102 Fed. Rep. 676.

8. BANKRUPTCY-Preferences – Provable Claims.Under Bankr. Act 1898, $ 57, providing that “the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences," a creditor cannot prove any claim against the bankrupt's estate, though it be a distinct and separate debt from the one preferred, until be surrenders the preference he has obtained.--IN RE ROGERS' MILLING Co., U. 8. D. C., W.D. (Ark.), 102 Fed. Rep. 697.

9. BENEFICIAL ASSOCIATIONS-Proceedings in Rem -Jurisdiction.-Where a resident of Maryland became & member of a beneficial association of New York, the contract belog accepted by a member in Maryland, and the premium pald there, the contract was one of the State of Maryland; and hence the rights of differ. ent claimants to the beneficial fund on the death of the member were to be decided in accordance with Maryland laws.-EXPRESSMAN'S MOT. BEN. ASSN. V. HORLOCK, Md., 46 Atl. Rep. 957.

10. BILLS AND NOTES-Accommodation Notes-AC. tlon by Indorser,-An accommodation indorser of a note, who has paid it after protest, is not prevented from recovery thereon from the prior indorsers by the fact that the proceeds of the note were, with his knowledge, borrowed and used for the benefit of a corporation in which he was interested; it not belog averred by the affidavit of defense that he agreed or intended by his indorsement to become equally responsible with the prior indorsers for the payment of the note, but merely that he joined with them in rais. ing the money for the purpose of promoting the in. terests of the corporation and paying its obligations. -RUS8 v. SADLER, Penn., 46 Atl. Rep. 903.

11. BILLS AND NOTES-Oopsideration-Mistake-Can. cellation.- Where plaintiffs, who were sureties on a bond conditioned that they would pay for goods pur. chased by the principal which he did not pay for, through mistake and misrepresentation gave their note for debts incurred before they became sureties, their negligence in falling to discover the true state of the account between the principal and the defendant before giving the note is no defense in a suit to cancel the note.-BELAND V. ANHEUSER BOSCH BREW. A88N., Mo., 58 S. W. Rep. 1.

12. BUILDING AND LOAN ASSOCIATIONS-Contracts.Where all the negotiations respecting a loan made by a building and loan association are conducted by a clerk in the office of the agents of the assoclation, and the papers are executed by the mortgagor under his direction, the association cannot repudiate his agency

after accepting the benefits of the instruments procured by him.-PIONEER SAV. & LOAN Co. V. BAUMANN, Tex., 58 8. W. Rep. 19.

13. BUILDING AND LOAN A8SOCIATIONS-Stockholders -Usury.-Where, in an action to cancel a building ag. sociation loan for usury, there was evidence that plaintiff wished to borrow money of defendant company, and was told that in order to do so he must be. come a stockholder, and that for this purpose he subscribed for 10 shares of stock, telling defendant's sec. retary that he did so only to obtain the loan, the ques. tion whether plaintiff was a bona fide stockholder was properly submitted to the jury.-SOUTHERN HOME BLDG. & LOAN ASSN. V. THOMPSON, Tex., 58 8. W. Rep. 202.

14. CARRIERS-Goods-Measure of Damages.-Where, in an action against a carrier for damages sustalned in transit to goods which have no market value, the only evidence of value is the price at which plaintiff has sold similar articles, it is not error to instruct the jury to look to the original cost of the articles lojured, in estimating plaintiff's damage.-HOUSTON, ETC. R. Co. V. NEY, Tex., 58 8. W. Rep. 43.

15. CARRIERS--Passengers Ejection.-Where a pag. senger was arrested at a station before reacbing his destipation, on the mistaken idea that be was the per. 800 who had assaulted the conductor at another town some time prior thereto, the company was liable for the ejection, though the conductor acted contrary to orders not to make any arrests.-GOLF, ETC. RY.CO. V. CONDER, Tox., 58 S. W. Rep. 58.

16. CARRIERS-Street Ruilways-Negligence.-Where the conductor of a street car falled to stop at the place plaintif requested, but stopped a short distance beyond, where the track ran close to the edge of the highway, and plaintiff, in alighting with a number of bundles and wraps, fell into a hole and was injured, the fact that she did not look at the ground before alighting was not sufficient to charge her with con. tributory negligence.- Bass V. CONCORD ST. RY., N. H., 46 Atl. Rep. 1056.

17. CARRIERS OF GOODg-Interstate Commerce-Spe. cial Rates.-A contract of shipment of goods from one State to another stated that the rate charged was special, and given in consideration of a limited valuation placed on the goods, for which the carrier abould be llable. The evidence showed that the rate charged for shipment was the regular rate. Held, that the con. tract of shipment did not limit the consignee's right to recover the full value of goods lost in transit, and the fact that the shipper was required to sign a stipulation that the carrier's liability should not exceed a certain amount, in order to get the rate charged plaintiff, does not show that the rate charg-d was not the regular rate.- WARD V. MISSOURI PAC. R).Co., Mo., 59 8. W. Rep. 28.

18. CARRIERS OF GOOD8-Warehousemen-Storage of Goods.-A railroad corporation is not authorized to receive for storage for bire in warehouses, as being incidental to its business as a common carrier, goods and merchandise which are not received by it under and from shipments over its road. It is authorized to receive them for storage from and under shipments from and for its roads, to the extent that such storage is in fulallment of its obligations as a common carrier, and not otherwise.-STATE V. SOUTHERN Pao. Co.,La., 28 South. Rep. 372.

19. CONFLICT OF Laws-Law of Evidence-Lex Fori. -The law of evidence is the lex fori. Whether a wit. ness is competent or not, whether certain matters require to be proven by writings or not, whether certain evidence proves a certain fact or not, are to be deter. mined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it. It was, therefore, error for the court below to hold at the trial of this case that a Wisconsin statute which established noth. ing more than a rule of evidence as to the burden of

proof was of force and effect in the courts of this state, -JONES V. CHICAGO, ETC. Ry. Co., Mion., 83 N. W. Rep. 446.

20. CONTRACTS – Corporations - Claims for Extra Work.- Where the contract for building a railroad provided that no claim for extra work should be al. lowed, unless done in pursuance of a written order from the engineer, evidence of a contemporaneous oral agreement that if any change was made, entailing extra work, it would be paid for, was properly re. Jected.-MERRITT V. PENINSULAR CONSTRUCTION CO., Md., 46 Atl. Rep. 1013.

21. CONTRACTS – Employment - Discharge.- Where plaintiff was employed by defendant for one year, and wrongfully discharged before the expiration of that time, he is entitled, at his election, to treat the con. tract as existing, and sue for his salary as it becomes due, or treat it as at an end, and sue for entire dam. ages, to be assessed in one action.-ALLEN V. COLLIERY ENGINEER'S CO., Peno., 46 Atl. Rep. 899.

22. CONTRACT-Penal Clause-Construction.-One not ready nimself to captract in reference to a matter as to which proposals had been invited is not in a position to entorce a penalty against the other party submit. ting the proposal for not contracting.-J. G. WAGNER Co. y. CITY OF MONROE, La., 28 South. Rep. 229.

23. CONTRACT-Sale-Measure of Damages.-Where a contract of sale of the entire product of a sawmill, to be made up of several grades of lumber in the propor. tions mentioned in the contract, is violated by the vendor, in furnishing lumber of the different grades in different proportions from those agreed upon, the measure of damages to which the vendee is entitled is the difference between the value of the cut of the mill as described in the contract and that as actually de. livered, which is to be determined from proof of the value of both the entire product delivered and that of the different grades.-SLOAN V. ALLEGHENY CO., Md., 46 Atl. Rep. 1003.

24. CONTRACTS-Setting Aside-Mistake.-An instru. ment attempting, but failing, to reduce to writing an oral agreement, will be set aside, the party other than the one who wrote it and his attorney having, though hearing it read, acted without negligence, under a mistake of lact as to the terms and the legal effect of the writing.-KELLEY v. WARD, Tex., 68 S. W. Rep. 207.

25. CORPORATIONS-Collateral Attack on Charter.Whether a charter for a public purpose was originally Invalid or has been forfeited can be determined, not in a collateral proceeding by a private sultor, but only in a direct proceeding by the commonwealth.-OLY. PHANT SEWAGE-DRAINAGE CO. V. BOROUGH OF OLY. PHANT, Penn., 46 Atl. Rep. 896.

26. CORPORATIONS-Oficers-Right to Compensation. -Where a director rendered services for the corpora. tion as manager, which were outside of his duties as director, for which he received payment without the authority from the board, such payment might be properly ratified thereafter; and the directors cannot be held llable therefor, as for a wrongful expenditure of funds.-BASSETT V. FAIRCHILD, Cal., 61 Pac. Rep. 791.

27. CORPORATIONS-Stockholders in Foreign Corpo. rations.-When a person subscribes for stock in either a domestic or a foreign corporation, he thereby con. gents to be governed by the provisions of its charter or the general law under which it is incorporated, and by such by.laws as the corporation may lawfully en. act, and that his rights and liabilities as a stockholder shall be tested and determined by such laws.-GIESEN V. LONDON & NORTHWEST AMERICAN MORTG. Co., U. S. 0. C. of App., Eighth Circuit, 102 Fed. Rep. 584.

28. CRIMINAL EVIDENCE Rape-Res Gestæ.-In a prosecution for rape, evidence that the girl told de. tendant's witness that she left home because her father had ruined her was not admissible as part of

the res gestæ, nor as showing defendant's motive in taking her from her home to the place where the alleged offense was committed. - COOKSEY V. STATE, Tex., 58 S. W. Rep. 103.

29. CRIMINAL LAW-Grand Jury-Discharge and Re. assembly.-Under Code Or. Proc. art. 411, providing that when the grand Jury has been discharged it may be reassembled at any time during the term, and, in case of failure of one or more members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed for completing the grand jury in the first instance, where all the grand jurors reag. semble, but one of them is disqualified, the court can. not discharge him and complete the panel.-MATTHEWS V. STATE, Tex., 58 8. W. Rep. 86.

30. CBIMINAL LAW - Homicide-Conspiracy.-Where several persons confederate together to commit a crime of a nature or under such circumstances as will, when tested by human experience, probably result in the taking of human life, if such necessity should arise to thwart them in the execution of their unlaw. ful plang, it must be presumed that they all understood the consequences which might be reasonably expected to flow from carrying into effect their unlawful com. bination, and to have assented to the taking of human life it pecessary to accomplish such unlawful act; and, if death happens in the prosecution of such a common design or object, all are alike guilty of a homicide.REEVES V. TERRITORY, Okla., 61 Pac. Rep. 828.

81. CRIMINAL LAW-Homicide-Malice-Intent.-ID a prosecution for murder, an Instruction that express malice might be established by proof of the cool de. portment and bearing of the party when the killing was done, immediately preceding and subsequent thereto, his apparent freedom from passion or excite. ment, the absence of any known cause to disturb his mind or cause his passion, was correct, and was not a charge on the weight of the testimony, nor did it sog. gest the court's view of the condition of defendant's mind.-HOWARD V. STATE, Tex., 58 8. W. Rep. 77.

32. CRIMINAL LAW-Larceny - Variance.-Where an indictment charged that the owner of the stolen prop. erty was a corporation chartered by the laws of the State of Rhode Island, and the proof was that it was chartered by the State of Rhode Island and Providence Plantations, the variance, if any, was immaterial.STATE V, WINDER, R. I., 46 Atl. Rep. 1046.

33. CRIMINAL LAW-Larceny-Venue.-Where defend. ant was indicted for stealing four steers in one county, evidence that they ranged in that county, and were missed late in September, and were sold in another county on the 2d of October, was sufficient proof of the venue as laid in the indictment to support a con. viction, since venue may be proven by circumstantial evidence.-BLOOM V. STATE, Ark., 58 S. W. Rep. 41.

34. DEED-Bona Fide Purchaser-Estoppel.-A pur. chaser of real estate from one actually the owner thereof, and so appearing on the pablic records, is not affected by facts dehors the record, of which he had no knowledge, by which his vendor, as between himselt and other parties, might have been held es. topped to have claimed such ownership.-BRIAN V. BONVILLAIN, LA., 28 South. Rep. 261.

35. DEED-Collateral Attack.-Where a widow hold. ing a life estate in land conveyed it, without consider. ation, to those holding the reversionary interest, the life estate merged in the fee-simple in reversion, and the reversioners, or those claiming under them, can. not attack the conveyance by the widow, in ejectment, as void because voluntary and in fraud of creditors.WHITAKER V. WHITAKER, Mo., 58 8. W. Rep. 5.

36. DEED8-Delivery-Agency.-The giving of a deed by the grantor, after signature and acknowledgment, to one employed by the grantee to prepare it and take the acknowledgment, without suggestion or direction by any party thereto regarding its custody or disposi. tion, constituted a sufficient delivery thereof, though

« AnteriorContinuar »