Imágenes de páginas

mediately before the injury and again immediately af- questions there was evidence proper for submission to terward, they would arrive at the difference in value. the jury, and their finding in regard to them has not We may also say that in arriving at the difference in been disturbed by the General Term. Their conclu. value of the premises they should not only take into sion is not open to review here. consideration the crops destroyed, but those that were The learned counsel for the appellants howerer injured, and any permanent damages which the prem- argues with much earnestuess that the act wbich deises sustained, and the inconvenience, if any, which prived the plaintiff of his father, and cut off the sup. the plaintiff necessarily suffered in passing from one port which he had before enjoyed, was not a natural part of his farm to auother in the ordinary discharge consequence of the use of the beer sold by the defendof his duties in carrying on the farm. Whether if it ants; that they were not bound to know tbat Jacob had been shown that he could, at moderate expense, Neu “would strike his wife on the head with an axe, have relieved his land from the accumulated water,

and then cut his own throat with a razor." Perhaps and prevented a portion of the injury, such fact might not. But a cause of action may exist without such properly have been considered in reductiou of his foresight. damages, we need not determine, as no such question The statute does not even require that the vendor has been presented.

shall know that drunkenness leads to crime of any deFor the error above pointed out in the admission of gree, nor even that it is the cause of poverty and beg. evidence the judgment must be

gary, and consequent distress to the drunkard's family. Reversed.

It is enough that these results come from intoxica

tion, and so in Hill v. Berry, 75 N. Y. 229, a wife reCIVIL DAMAGE ACT LIABILITY FOR RE- covered of the landlord and his tepant, because by SULTING INJURY-DAMAGES.

reason of liquors sold by the latter her husband be

came intoxicated, wasted his money, neglected his NEW YORK COURT OF APPEALS, APRIL 29, 1884.* employment and beoame incompetent to labor, and

therefore unable to provide for her, and she obliged to NEU V. McKECHNIE.

care for him while in that condition. She suffered not To maintain an action under the “Civil Damage Act" (Laws only because his substance was reduced to nothing, but

1873, ch. 646), it is not essential to show that the act of the from the loss of productive labor. intoxicated person which caused the injury was the nat- In Bertholf v. O'Reilly, 74 N. Y. 509; 30 Am. Rep. ural, reasonable or probable consequence of his intoxica- 323, the landlord was required to pay for the plainttion; it is sufficient if it appears that the act was done

iff's horse, because it died from over-driving induced while the person was intoxicated, in whole or in part, by liquors sold by defendant,

by the driver's intoxication through liquors sold by The fact that the act causing the injury constitutes a crime

the defendant's lessee. does not mitigate, nor take away the cause of action.

In Mead v. Stratton, 87 N. Y. 493; 41 Am. Rep. 34, It appeared that the father of plaintiff, while in a state of in- the wife recovered under this act, because the bus

toxication, produced in part by liquors sold to him by de- band, while intoxicated by liquors sold on the defendfendants, murdered his wife and then committed suicide. ant's premises, was beaten to death by the wheel of his Plaintiff was fifteen years of age; he lived with, and was

own wagon while the reins were in his hand, although dependent upon his father for support. Held, that the

he was in a state of stupor. facts were sufficient to maintain the action. It appeared that defendants sold the liquor without a license,

In those cases, as well as in others arising under the and that they had been so selling for a long time. Held,

act, liability was established from the sale of liquors that submission to the jury of the question of exemplary

producing intoxication, and the act of the intoxicated damages, and an allowance thereof, was proper.

person causing injury to the plaintiff in his person, property or means of support. Those elements exist

bere. The cause of action is neither taken away nor Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1883,

mitigated because the cause of injury also constitutes affirming a judgment entered upon a verdict, and an

a crime. The jury were not to inquire whether either order denying a motion for a new trial. The opinion

“tbe homicide or suicide were the natural, reasonable, states the case.

or probable consequences of the defendants' act." It

is evough if while intoxicated in whole or in part by Henry M. Field, for appellants.

liquors sold by the defendants, those acts were com. Wm. H. Smith, for respondents.

mitted, if by reason of them, or either of them, the DANFORTH, J. The act entitled "An act to sup

plaiutiff's means of support were affected to his inpress intemperance, pauperism and crime" (ch. 646,

jury. Laws of 1873), provides in substance that certain per

Nor was it error in the learned trial judge to submit sons, and among others, a “child," who shall be in

the case to the jury as one in which the plaintiff might jured in means of support by any intoxicated person,

have exemplary damages. They are expressly al. or in consequence of the intoxication of any person,

lowed by statute, and there was evidence upon which shall have a right of action against any person, who

they might be awarded. The defendants were manu“by selling * intoxicating liquors, caused

facturers of lager beer. They had no license to sell it the intoxication in whole or in part," and may re

in quantities of less than five gallons. The sale to the cover from such vendor all damages so sustained, and

plaintiff's father was of that description, and hence also exemplary damages.

unlawful. It was not an isolated sale. The defendants This action is brought under that act. The verdict of

had so dealt for a long time and with many persons. the jury establishes that the plaintiff at the time the al

It resulted in their pecuniary benefit. Under the cirleged cause of action accrued was a child of the age of

cumstances of the case it was therefore for the jury to fifteen years, the son of Jacob and Barbara Neu; that

say whether something more than actual damages he was living with his parents and dependent upon his

should not be allowed for the benefit of the commu• father for support, when the latter, in a state of in

nity and for example's sake. To hold otherwise would toxication, produced in part by the use of lager beer,

place a wrong-doer (Foote v. People, 56 N. Y. 321) ou the sold to him by the defendants, murdered plaintiff's same footing with a licensed vendor--one who sells mother and then committed suicide. Upou all these

recklessly and at his own volition, on a level with one

who has the consent of the proper public officers to *To appear in 95 N. Y.

deal in an article, the use of wbich, as the statute



[ocr errors]

(supra) implies, leads to “intemperance, 'pauperism titled, “An act to prevent extortion in sheriffs in cases and crime."

of execution," it was provided, “that for serving and Other points presented by the learned counsel for executing any writ or execution upon body, lands, the appellants have been considered, but we find no goods or chattels," the sheriff should not take more error. In this conclusion we agree with the General than twelve pence in the pound for the first £100, and Term, and therefore their judgment should be af- six pence in the pound for all above £100. By this act firmed.

the sheriff was not authorized to levy his fees by virAll concur.

tue of the execution, but they were payable in all cases Judgment affirmed. by the plaintiff in the process. With some immate

rial changes this continued to be the law in England

until by chapter 46 of the 43 George III, they were SAERIFFS POUNDAGE.

authorized to include in their lery upon a fi. fa, upon

the goods of the defendant the amount of their charges NEW YORK COURT OF APPEALS, APRIL 15, 1884.

for poundage and expenses over and above the amount

of the judgment. Under this statute the sheriff still FLĄCK V. STATE.

had no right to exact poundage from the defendant

upon a writ of ca. sa., but his charges for services A judgment debtor dying while in custody under

were payable by the plaintiff therein. Hayley V. body execution, the sheriff has no claim for poundage,

Racket, 5 M. & W. 620. It was not until the 15 and 16 under 2 Rev. Stat. 645, 8 38. He must show either a collection of the moneys called for,

Victoria, ch. 76, that sheriffs were authorized to colinterference by the judgment creditor with his execution

lect, by virtue of the writ, poundage fees and expenof the process, or the discharge of the judgment debtor ses upon a ca. sa. from the defendant. Under these under the provisions of the act for the relief of impris- statutes it has been uniformly held in England, as will oned debtors: the arrest of the debtor is in no just sense be seen by the cases hereafter cited, that sheriffs did the equivalent of a collection.

not become entitled to poundage upon executions unThe history of the legislation upon the subject given and the

til they had collected the money called for by such authorities collated and discussed.


The statute of 29 Elizabeth was the law of this State Supreme Court, in the first judicial department, until by the passage of chapter 25 of the Laws of 1789, made January 11, 1883, which affirmed a decision of it was provided that a sheriff should be entitled to the State board of audit, disallowing a claim presented charge fees for “serving an execution for or under by the executors of the will of William C. Conner, £100 six pence per pound, and for every pound more late sheriff of the county of New York, for poundage than £100 three pence, the poundage on writs of fieri upon an execution.

facias, and all other writs for levying money, to be 4. J. Vanderpoel, for appellant.

taken only for the sum levied.” With immaterial

changes this statute continued the law of this State D. O'Brien, Attorney-General, and W. A. Post, for

until the adoption of the provisions of the Revised respondent.

Statutes. RUGER, C. J. The plaintiff's testator while sheriff In a recent case in this court it was said, that "the of the county of New York received for collection an right of a sheriff to fees is derived from, and depends execution upon a judgment in an action wherein the altogether upon the statute. At common law he could people of the State were plaintiffs and William M. not lawfully collect or receive them." Campbell v. Tweed was defendant.

Cothran, 56 N. Y. 281; 2 B. & A. 562; 1 Chit. 295; GraThe plaintiffs, having recovered their judgment for ham v. Grill, 2 M. & S. 294. upward of six and a half millions of dollars, issued an The plaintiffs must therefore establish their right to execution thereon against the property of the defend- the fees in question under the statute in force at the ant, which having been returned mulla bona, there- time the services were rendered, and if they do not upon issued the execution against the person of the bring themselves within its terms they must necesdefendant.

sarily fail in their claim. The material part of that On December 20, 1876, the sheriff arrested the de. statute reads as follows: "For serving” “an execufendant upon the execution, and retained him in cus- tion for the collection of money," " for collecting the tody until December 31, 1876, when his term of office sum of $250 or less, two cents and five mills per dollar; having expired in pursuance of the statute, he trans- and for every dollar collected more than $250, one cent ferred the process, with the body of the defendant, and two and a half mills." “ The fees herein allowed over to his successor.

for the service of an execution, and for advertising No moneys were collected by either sheriff upon the thereon, shall be collected by virtue of such execution process, and the defendant therein was retained in the same manner as the sum therein directed to be in custody until his death, which occurred April, 12, levied." 2 Rev. Stat.615 (orig.ed.),$ 38. The language of 1878.

this provision seems to be plain and unambiguous, and The plaintitfs claim that they are entitled to clearly removed from the possibility of misconstrucpoundage accruing to their testator upon this execu- tion. The services, for which compensation is protion under the statute regulating the compensation of vided are those for "collecting "the moneys called for sheriffs.

by the execution, and the fees are computable only A brief reference to some of the salient features in upon the amount "collected,” and are made collectithe history of legislation on the subject will enable us ble by virtue of the execution alone. to appreciate the bearing of the cases cited on the To bring the claim of a sheriff within the provisions question presented by this appeal.

of the statute, it is essential that he show either the Prior to the enactment of the statute of 29 Eliz., ch. collection of the moneys called for, or some interfer4, the charges of sheriffs for executing writs for the ence by the plaintiff with his execution of the process collection of judgments was entirely unregulated by that is equivalent thereto. It has been uniformly held statute. Under this condition of the law grave abuses in England as well as in this country, under all stat. bad sprung up, and sheriffs and their servants were utes giving fees to sheriffs upon executions, that a accustomed to practice extortion, not only upon the judgment creditor cannot, after placing process in the persons against whom process issued, but also from hands of the officer and inducing him to move forward the plaintiffs therein. By that act, which was en- in the work of executing it, iuterfere to prevent its en



forcement without thereby making himself liable for was held to have been performed, so far as to fix the the compensation of the sheriff. Alchin v. Wills, 5 T. plaintiff's liability for sheriff's fees, when the body of R. 470; Hildreth v. Ellice, 1 Caines, 192; Campbell v. the defendaut was taken upon execution. Cothran, 56 N. Y. 282. These cases proceed upon an None of the English cases seem to support the docobvious equity, analogous to that underlying the fam- trine of this case, and it can be sustained only upon iliar principle which debars a party to a contract the ground that the language of the statute estabfrom claiming the beuefit of the non-performance lished the sheriff's right to fees when he had com. of a condition precedent by the other party when be menced the execution of the process. has by his own conduct made performauce thereof by In each of the early English cases of Earle v. Plumsuch party impossible.

mer, 1 Salk. 332; Rawstorne v. Wilkinson, 4 M. & S. 236; The question presented by this appeal seems to us to Bullen v. Ansley, 6 Esp. 111, the sheriff had fuliy exebe one purely of statutory construction, and in the cuted the writ and paid over the money collected. It absence of prior adjudication, would appear to be easy was held in those cases that he thereby became en. of solution. But it contended by the learned coun- titled to poundage, although the writs were subsesel for the appellants that the logic of the cited cases quently set aside for irregularity. supports the claim now made by them.

These cases afterward came under review in tbe case Although in the early case of Pope v.Hayman, Skin. of Miles v. Harris, 104 Eng. C. L. Rep. 550, in the Court 363, arising under the act of 29 Eliz., the subject is of Common Pleas, upon the question reserved for the mentioned argumentatively by counsel, yet aside from opinion of the court, whether the sheriff was entitled that case, we have been referred to none arising under to poundage upon an execution when he had seized any statute which seems to support the doctrine that goods thereon sufficient to satisfy it, but such execua sheriff becomes entitled to poundage on an execu- tion was afterward set aside for irregularity. It was tiou upon the death of a defendant held in custody held that he was not entitled to poundage, Erle, C. J., thereunder, or that he is entitled to such poundage in saying: “Inasmuch therefore as no money was wade any other event than the collection of the debt, the by him under the execution, I think he was not entirelease of the debtor with the consent or by direction tled to claim poundage.” This opinion was concurred of the plaintiff, or his discharge under the pro- iu by the whole court, consisting of the Justices Wilvisions of the act for the relief of imprisoned debt. liams, Willes and Byles.

To similar effect was the decision of the Exchequer We are therefore unembarrassed by any prior de- Court in the case of Evans V. Manero, 7 M. & W. 463, cisions covering the particular question presented by aud Rex v. Robinson, 2 C. M. & R. 334. In Ryle v. this appeal, and we may well consider their absence a Fall, reported in 24 Huu, 255, and affirmed in 86 N. Y. fact militating against the plaintiff's claim, since the 641, by this court upon the opinion in the court below, qnestion is one which must frequently have occurred it was held that the sheriff was entitled to his poundin the history of the law relating to imprisoned debt- age upon a ca. sa. where the plaintiff had consented to

A number of cases have however been referred the discharge of the defendant, upon the condition of to by the appellants which are claimed to support their his paying the sheriff's legal fees, charges aud exdemand. We believe the cases cited have but a re- penses. The principal question involved in that case mote, if any, bearing upon the question here pre- was whether the plaintiff could interfere by directing sented, and their soundness may be conceded without a discharge after the defendant was taken in execuimpairing the considerations which induce the deter- tion, and thus preclude the sheriff from collecting the mination of this case. Without considering all of statutory fees, or in other words, whether any thing them in detail it may be observed that they generally but the actual collection of the money called for by arose under statutes essentially different from that the process would eutitle the sheriff to his poundage. under consideration, and were mainly decided upon This case was undoubtedly correctly decided upon the the language of the particular statute under which ground that the direction of the plaintiff was equivathey respectively arose.

lent to the collection of the judgment, and the case In Adums v. Hopkins, 5 Johns. 252, two propositions was thereby brought within the meaning and spirit of were announced, viz. : That the plaintiffs' attorney the existing statute. The plaintiff had the right to was liable to the sheriff for the fees earned by him in control the execution of the process, and to impose serving an execution against the defendant's person, such conditions upon the discharge of the defendant and secondly, that the sheriff was entitled to the statu- as he chose, and the defendant could not have the tory fees, when after execution of process, the de- benefit of the stipulation without complying with the fendant had been discharged from imprisonment conditions upon which it was given. under proceedings for the relief of imprisoned debt- In Campbell v. Cothran, 56 N. Y. 279, a fi. fa. bad ors.

been issued to the sheriff upon a judgment for $4,328, The right of the sheriff to fees in this case was based and he had levied upon sufficient property to satisfy it. upon the express language of the statute then in force. Upon appeal the judgment had been reduced to the 2 R. L. 77, Mr. Justice Thompson, delivering the sum of $60.20, and it was held that the sheriff was eaopinion, saying: “The sheriff by the statute of Eliz- titled to poundage upon the amount of the modified abeth, and by our act, is to have his fees for serving judgment only. This case was decided by the court an execution.” It may be doubted whether the sec- upon the ground that under the statute the sheriff was ond proposition decided would be considered appli- entitled to poundage upon the sum collected only. cable to case arising under the Revised Stat- Iu Kønig v. Steckel, 58 N. Y. 475, it was held that a utes.

judgment creditor could not maintain au action against In Scott v. Shaw, 13 Johns. 378, the only question the sureties upou a bond given for the payment of the considered was whether the sheriff was under the then judgment so long as be detained the debtor by im prisstatute entitled to fees upon a ca. sq. duly executed onment upon a ca. 8a. issued on such judgment. It by him, although it was afterward set aside upon mo- was said in effect that the imprisonment operated pro tion for irregularity, because a fi. fa. had not pre- tempore as an extinguishment of the defendant's liaviously beeen issued and returued nulla bona as re- bility for the debt, and that the defense accruing to quired by the statute. It was held that by the service the principal from that fact would also inure to the of the process, the sheriff became entitled to his fees. benefit of his sureties. The statute in this, as in the previous case, gave the We have not omitted to observe the language used by fees fritt ses service of the execution, and that service the courts in many of the cases referred to, to the effect


that the allowance of poundage is for the risk in made to depend upon their collection, instead of upon curred,” or “for the sheriff's trouble.”

their service, was in our judgment intended to change If these expressions were used in the sense that the the conditions upon which the sheriff's right to collect sheriff became entitled to poundage whenever he fees was to be predicated. has incurred risk in the service of process, they are It would be difficult to find language more significant manifestly incorrect, for there are many decided cases or which would seem to preclude more clearly any where such risks have been incurred, and yet this claim on the part of these officers to poundage, except right to poundage has been denied. Such, for instance, upon the completed performance by them of the duare the cases where the judgment has subsequently ties required in the enforcement of an execution. The been modified or reversed, or where the execution has right to fees which before depended upon the rendition been set aside or reduced by the order of the court be- of whatever services he might perform in the collection fore collection. Impey on Sheriffs, 159; Campbell v. of an execution is thereby made to turn upon the perCothran, supra; Miles v. Harris, supra; Evans v. formance by the sheriff of the final act to be done in Manero, supra.

the course of such service. This is so also when the property is taken by a trus- The decision in the case of Bolton v. Lawrence, 9 tee in bankruptoy after levy and before sale. Ex parte Wend. 436, does not conflict with this view. The quesBrowning, Ch. D. 596. Neither does he become en- tion in that case was whether the sheriff was entitled titled to poundage on a fi. fa. when the property taken to poundage upon a fi. fa. which had been levied by thereon is destroyed by fire or other casualty. bim upon sufficient property to satisfy it, but where Campbell v. Cothran, supra. The application of such be bad been prevented from making the amount of expressions must be limited to the

circum the execution by the act of the plaintiff in causing the stances of the cases in which they were used, and judgment to be collected in another county upon deemed as intending to convey the idea that under the another execution. The decision in this case accords particular statute then being construed the sheriff's with the rule as uniformly laid down in the cases arisright to fees became fixed by virtue of his levy, and ing both before and since the passage of the Revised the liability thereby incurred by him to the judgment Statutes. creditor for damages arising out of a loss of property In Campbell v. Cothran this court, in giving a conlevied upon, or by the escape of the defendant from structiou to the statute as applied to the writ of fi. fa., custody. Such expressions were undoubtedly used to held that the sheriff was not entitled to poundage unconvey an idea of the equitable considerations which less he collected the judgment, except in case the induced the adoption of statutory provisions giving plaintiff interfered to prevent its collection; and we compensation to sheriffs, but they cannot operate to can see no reason why the principle laid down in that extend the class of cases in which fees are allowed be- case is uot equally applicable to cases arising upon the Fond those authorized by the terms of the statute. execution of the writ of ca. sa.

While we would not be considered as depreciating It is by virtue of the same statute, and through the in any degree the risk incurred by a sheriff in execut- use of the same language, that the claim of a sheriff to ing the processes of the court, yet the hazard of lia- fees arises upon an execution whether such execution bility for damages upon an escape must be much di- goes against the property or the person of the defendminished by the presumed irresponsibility of a defend- ant. ant against whose property an execution must previ- It would seem necessarily to follow that the condiously be issued and returned nulla bona before his body tions which have been adjudicated as essential to his can be taken in execution. The condition and circum- right to demand fees in one class of cases would apply stances of the debtor may be given in evidence in miti- with equal force to another, when the right to fees in gation of damages in an action upon the case against both depends upon the same language. This right is the sheriff to recover damages for an involuntary es- made by the language of the statute to depend exclucape. Patterson v. Westervelt, 17 Wend. 543; Smith v. sively upon the collection of the money called for by Knapp, 30 N. Y. 581; Metcalf v. Stryker, 31 id. 257; the process; and we think no right to the statutory Macrae v. Clark, 1 H. & R. 479. It is otherwise how- fees can arise in favor of the sheriff, except upon the ever when the sheriff bas made himself liable as bail collection of the execution, or the intervention of the under the provisions of the Code. Bensel v. Lynch, 44 plaintiff by the performance of some act which in law N. Y. 162.

is deemed to be the equivalent of collection. However equitable the sheriff's claim may be for Campbell v. Cothran, Andrews, J., said, after referring compensation whenever he incurs risks by executing to a case holding that the sheriff is entitled to poundprocess, it is an answer to any claim founded thereou age after the levy of an execution, where the parties to say that tbis is not the ground upon which the stat- had settled or compromised the debt, that “this case ute has awarded it. Although it is said in some cases and those falling directly within the same principle are, that the taking of the body of a defendant in execution we think, the only exceptions to the rule that the is in some sense a satisfaction of the judgment while sheriff is not entitled to poundage on a money executhe imprisonment continues, yet that consideration is tion until the money is collected, and that his commisnot prominently urged here as a reason for reversing sions are to be reckoned on the sum realized on the this judgment. But even if it were, the argument execution, and not on the amount of the judgment." would be ineffectual, for an arreston a body execution This decision accords with the settled law of England. is now generally considered not to operate as a satis- Miles v. Harris, supra; Evans v. Manero, supra; Roe faction of the judgment, but simply as a suspension v. Hammond, 2 C. P. D. 300; Mortimore v. Cragg, 3 id. for the time being of other remedies of the creditor 216. thereon. Campbelly. Cothran, supra; Kænig v. In Roe v. Hammond it was held upon the ground Steckel, 58 N. Y. 475; 2 R. 8. 465, art. 2, title 5, ch. 6, that there had been no collection that the sheriff was part 3.

not entitled to poundage upon a fi. fa. when he had It cannot in any just sense be said to be the equiva- levied upon goods sufficient to satisfy it, if the defendlent of that collection of the moneys due upon a judg- ant after seizure paid out the execution before a sale. ment which is required by the statute awarding fees The decision in this case however was overruled in to the sheriff for collecting an execution.

Mortimer v. Cragy in the Court of Appeals, decided in The change made in the law by the adoption of the 1878, Brett, L. J., saying: “When an execution issues provisions of the Revised Statutes whereby the right the transaction may be divided into four parts: 1. The of sheriffs to charge poundage upon executions was delivery of the writ to the sheriff. 2. Seizure. 3. The


[ocr errors]




possible payment of money after seizure. 4. If no pay- numerous other enterprises, not objects of private ment, sale. The first step does uot entitle the sheriff to concern purely. In Dawson County v. McNamar, 10 poundage, and if he does not seize, Nash v. Dickenson Neb. 276, in 1880, it was held that the building of a is an authority that he is not entitled to poundage. Al- county court-house was not a work of internal imthough he seizes, nothing may be realized, because the provement, under the act, and it was said that “works seizure may be wrongful; it may be withdrawn by di- of internal improvement" meant “only those works rection of law, then the sheriff would receive no pound- within the State in which the whole body of the peoage. Then comes the case of seizure. The money may ple are supposed to be more or less interested, and by be paid by the execution debtor, either directly or in- which they may be benefited.” In Township of Bur: directly; directly by virtue of the seizure to the sher- lington v. Beasley, 94 U, S. 310, this court held that a iff; indirectly when payment is made by means of a steam custom grist-mill, not on a water course or compromise which is a consequence of the seizure. In operated by water power, was a “work of internal either of those cases the sheriff is entitled to pound. improvement," within an act of Kansas authorizing age,” Bramwell, L. J., saying: “I think the words in municipal bonds in aid of “the construction of railthe statute of Elizabeth "sball so levy' mean 'shall roads or water power

or for other works of seize and thereby get the money.'”

internal improvement.” The decision was based, in The view that we have adopted of the statute was part, on the ground that there was another act which also taken by Mr. Justice Van Brunt in the case of declared “all water, steam or other mills, whose ownBowe v. Campbell, 63 How. Pr. 167. The unreported ers or occupiers grind or offer to grind grain for toll or case of Campbell v. Moers, cited upon appellaut's brief, pay, are hereby declared public mills," and provided would seem from the statement there given to con- for the order in which customers should be served, and flict somewhat with our construction of the statute. prescribed the duties of the miller, and that the rates We have no information respecting the case except of toll should be posted; and as it would also be comthat derived from the brief of counsel, and while we petent for the Legislature to regulate the toll, it was entertain great respect for the opinion of the learned held that aid to the mill was aid of a public work of judge who wrote in the case, we cannot concur in the interual improvement. Enterprise of a class within conclusions which he seems to have reached.

which that in the present case falls are so far of a pub. Judgment affirmed. lic vature that private property may be appropriated

to carry them into effect. Boston & Roxbury Mill UNITED STATES SUPREME COURT AB

Corp. v. Newman, 12 Pick. 467; Commonwealth v.

Essex Company, 13 Gray, 239, 249; Lowell v. Boston, STRACT.

I11 Mass. 454, 464; Scudder v. Trenton Delaware Falls

Co., 1 Cax. Ch. 694 ; Beekman v. Saratoga & SchenecMUNICIPAL BONDS-NEBRASKA STATUTES—“ WORK

tady R. Co., 3 Paige, 45. And when the Legislature OF INTERNAL IMPROVEMENT''-ACTION ON BONDS

has given to grist-mills and the water power connected VALIDITY OF ISSUE.-1) Bonds issued by the county with them such a public character as in the present commissioners of a county in Nebraska, on behalf of a

case, the improvement of the water power must be reprecinot in that county, to aid a company in improv

garded as a publio work of internal improvement, ing the water-power of a river for the purpose of pro

which may be aided in its construction by the issue of pelling public grist-mills, are issued to aid in con

bonds, under the act in question. (2) Although in structing a “work of internal improvement," within

such a bond and its coupons the precinct is the promthe meaning of the Act of Nebraska, of February 15, isor, a suit to recover on such coupous is properly 1869, as amended by the Act of March 3, 1870 (Laws of

brought against the county. (3) Where such bonds 1869, p. 92, and Laws of 1870, p. 15, and Gen. Stat. of

purport, on their face, to be issued by the board of 1873, ch. 35, p. 448). In Osborne v. County of Adams,

county commissioners, on behalf of the precinct, and 106 U. S. 181, this court decided, in November, 1882,

are signed by the chairman of the board, and attested that under the same statuto that is in question here,

by its clerk, who is also the clerk of the county, and bonds issued to aid in the construction of a steam

are sealed with the seal of the county, and the coupons grist-mill were not issued to aid in the construction of

are signed by such clerk, and the bonds refer to the a work of internal improvement. There was a sug- coupons as annexed, the bonds and coupons are issued gestion in the opinion in that case, that the statute did

by the county commissioners. Blair v. County of Cum. not oover the construction of any kind of grist-mill as

ing. Opinion by Blatchford, J. a work of internal improvement. During the same

[Decided April 21, 1884.] term a petitiou for rehearing was flled, and the attention of the court was called to the case of Traver v.

MONEY HAD AND RECEIVED-ASSUMPSIT-RATIFICAMerrick County, 14 Neb. 327, in which the Supreme

TION-PRESUMPTION AS TO PAYMENT. - Whenever Court of Nebraska had held at its January Term, 1883, person has in his hands money equitably that county bonds issued by county commissioners, belonging to another, that other person may reunder the act of 1869, as a loan to an individual to aid cover it by assumpsit for money had and received. Pickin building a public grist-mill and water power in the ard v. Bankes, 13 East, 20; Spratt v. Hobhouse,4 Bing. county, were valid. But this court ad hered to its 178; Israel v. Douglass,1 Hen. Bla.239; Beardsley v.Root view that the act did not cover the construction of a

11 Johns. 464; Hale v. Marston, 17 Mass. 575; Claflin v. steam grist-mill, and denied the rehearing. Osborne Godfrey, 21 Pick. 1. The remedy at law is adequate V. Adams County, 109 U. S. 1. In Union Pacific R. V. aud complete. A court sitting as a court of equity has Commissioners, 4 Neb. 450, it was held in 1876, that a

no jurisdiction in such a case. Hipp v. Babin, 19 publio wagon bridge, over the Platte river, as an ex- How. 271. If a principal ratifies that which favors tension of a public highway, was a work of internal nim, he ratifies the whole. Skinner v. Dayton, 19 improvement, under the act of 1869, being a work from Johus. 554; Odiorne v. Maxey, 13 Mass. 182; Menkins the construction of which benefits were to be derived v. Watson, 27 Mo. 163; Small v. Atwood, 6 C1. & F. 232. by the public. But the court said that no authority By the common law, the lapse of twenty years, withexisted to aid a merely private enterprise. See also out explanatory circumstances, affords a presumption United States v. Dodge County, 110 U. S. 156. In the of law that the debt is paid, even though it be due by State v. Thorne, 9 Neb. 458, 460, in 1880, it was sug- specialty. Oswald v. Leigh, 1 Term. 270; Lewis v. gested that works of internal improvement, under the

Nones, 7 S. & R. 410; Jackson v. Wood, 12 Johns. 242; act, might include railroads, turnpikes, canals, and Best on Presump., § 137. This presumption is a rule


« AnteriorContinuar »