« AnteriorContinuar »
of evidence and not a limitation, and is not subject to son, 100 U. 8. 617; Walton v. Crowley, 3 Blatchf. 440; the exceptions and incidents of an act of limitation Congress & Empire Spring Co. v. High Rock Congress Cape Giraudeau v. Harbinson, 58 Mo. 90; Smith's Ex'r Spring Co., 57 Barb. 426; 4 Am. L. T. Rep. 167; Dixon 7. Benton, 15 id. 371. James v. Miller. Opinion by Crucible Co. v. Guggenheim, 2 Brewst. 32). For a Woods, J.
trade-mark to pass under a bill of sale it is not neces[Decided April 21, 1884.)
sary that it should be specifically mentioned. In Shipwright v. Clements, 19 Week. Rep. 599, there was a sale by one partner to the other of all his interest in the part
nership, stock in trade, goods, chattels and effects, UNITED STATES CIRCUIT AND DISTRICT book debts, moneys in the bank, and all other property COURT ABSTRACT.*
not being on the premises, the defendant covenanting
that he would not carry on the trade within one mile INTERNAL REVENUE-GRAIN-BAGS-RE-ENTRY FREE
of the premises, or in any way affect the business to be OF DUTY-POWERS OF SECRETARY.—The customs and thereafter carried on by the purchaser. The court revenue laws provide that “grain bags, the manufac- held that this was a sale of the business, and that a tare of the United States, when exported filled with trade-mark passed under such a sale whether specially American products, may be returned to the United mentioned or not. If a trade-mark is an asset, as it States free of duty under such rules and regulations is, there is no reason why it should not pass under the as shall be prescribed by the secretary of the treasury.”
term assets in an instrument which conveys the entire Grain bags manufactured in this country from im. partnership_property. Cir. Ct., R. I. Feb. 12, 1884. ported materials were exported full of California Morgan v. Rogers. Opinion by Colt, J. (See 22 Am. wheat. The exporter demanded and received, accord. Rep. 44; 62 How. Pr. 216; 47 id. 532; 84 N. Y. 499; 45 ing to law, out of the public treasury, the draw-bąck
Am. Rep. 198; 111 Mass. 238; 5 Sawy. 584.-ED. due him on account of the duty formerly collected
SHIP AND SHIPPING--PILOT-WHEN NOT ENTITLED upon the materials of which the bags were made. Upon
TO SALVAGE-OREGON PILOT ACT, 1882.-The libellant the return of the grain bags, held, that they were en
in a smooth sea and calm weather boarded the Bryant titled to pass free of duty. The power of the secretary in a thick fog while she lay aground at low tide on the to prescribe rules and regulations does not authorize
outer edge of the middle sand of the Columbia river, him to impose a duty not provided for by Congress in and at the next flood sailed her over into deep water repayment of the drawback. Morrill v. Jones, 106 U.
in the south channel, and after drifting out to sea in S. 466; 1 Sup. Ct. Rep. 423; Merritt v. Welsh, 104 U. S.
the night brought her into port the next morning. 702; Balfour v. Sullivan, 8 Sawy. 648; 17 Fed. Rep. Held, that the service of the libellant did not involve 21. Cir. Ct., Dist. Cal. March 10, 1884. Balfour v.
any Sullivan. Opinion by Sawyer, J.
"extraordinary danger or risk,” and that he was
only entitled to a pilot's compensation therefor. UnREMOVAL OF CAUSE-FEDERAL LAW INVOLVED-SEP
der the Oregon pilot act of 1882 (Sess. Laws, 15) a pilot ARATE CONTROVERSY.-(1) A case may be removed is bound to render aid to a vessel" in stress of weather to the Federal courts whenever rights of the parties are
or in case of disaster," and he is not entitled to salvage alleged to depend in any way upon an act of Congress, for such service unless he is thereby involved in "exeven though the act is only set up by way of defense, traordinary danger and risk.” The drift of American and though other questions not of a Federal character legislation and decision is against the policy of allowenter into the controversy. If a Federal law is to any ing pilots to act as salvors on their own pilot grounds. extent an ingredient of the controversy by way of It has been thought or found that the temptation to claim or defense, the condi ion exists upon which the become a salvor might induce a pilot to make or allow right of removal depends, and he right is not impaired
an occasion for such service that he might profit by because other questions are involved which are not of the distress of the ship which he is bound to navigate. a Federal character. Cruikshank v. Fourth Nat. Bank, Hobart v. Drogan, 10 Pet. 120; The Wave, 2 Paine, 16 Fed Rep. 888; Mayor v. Cooper, 6 Wall. 247-252; 136; 2 Pars. Ship. & Adm. 271. A pilot is a public offiRailroad Co. v. Mississippi, 102 U. 8. 135. The motion
cer whose duties and compensation are prescribed by to remand is denied. (2) The defendant, the Balti- law; and when acting in the line of his duty he is not more and Obio Telegraph Company, has also removed entitled to any other compensation. As was said by the suit upon its separate petition, alleging that there Mr. Justice Washington in the case of Le Tigre, 3 is a controversy which is wholly between it and the Wash. C. C. 571, while considering the question camplainant citizens of different States. Within the whether official duty could be compensated by salvage: recent decision of this court in Boyd v. Gill, 19 Fed. “Of this class of cases is that of the pilot who safely Rep. 145, such a separate controversy is not disclosed by conducts into port a vessel in distress at sea. He acts the pleadings.
See also Peterson v. Chapman, 13 in the performance of an ordinary duty imposed upon Blatchf. 395. Cir. Ct., S. D. N. Y. March 6, 1884. him by the law and the nature of his employment, and Western Union Tel. Co. v. National Tel. Co. Opinion he is therefore not entitled to salvage, unless in a case by Wallace, J.
where he goes beyond the ordinary duties attached to TRADEMARK-PASSES WITH TRANSFER OF BUSINESS.
bis employment.” Dist. Ct., Dist. Oreg. March, 1884. -There is no reason why a trade-mark cannot be cou
The C. D. Bryant. Opinion by Deady, J. veyed with the property with which it is associated. INJUNCTION-VIOLATION-CONTEMPT.-To sustain a As an abstract right, apart from the article manufac- motion for contempt on account of the violation of an tured, a trade-mark cannot be sold, the reason being injunction issued to restrain the infringement of a that such transfer would be productive of fraud upon patent, it must appear clearly and indisputably that the public. In this respect it differs from a patent or the infringement continues. Walk. Pat. 481 : Birda copyright. But in connection with the article pro- sall v. Hagerstown Manuf. Co., 2 Ban. & A. 519; Lidduced, it may be bought and sold like other property. dle v. Cory, 7 Blatohf. 1; Welling v. Trimming Co., 2 It constitutes a part of partnership assets, and is prop. Ban. & A. 1; Bate Refrig. Co. v. Eastman, il Fed. erly sold with the firm property. Browne Trade M., Rep. 902. Cir. Ct., D. R. I., Feb. 9, 1884. Smith v. $$ 360, 361; Hall v. Barrows, 10 Jur. (N. S.) 55; Ains- Halkyard. Opinion by Colt, J. worth v. Walmsley, 35 Law J. Ch. 352; Kidd v. John
BANKRUPTCY-FRAUDULENT CONVEYANCES-JUDG*19 Fed. Rep.
MENT PRIORITIES—ASSIGNEE.-(1) A judgment recovered, defendant having meantime made a fraudulent agreement to which the surety has subscribed, which conveyance of his property, is deemed to have at- is made without the surety's kuowledge or consent, tached at the date of its rendition as if the fraudulent and which may prejudice him, or which may amount conveyance had never been made. (2) Under the to a substitution of a new agreement for the one he statutes of Indiana a judgment against a fraudulent has subscribed, will discharge the surety, upon the grantor is made a lien, and accordingly he who ob- principle of the maxim non hæc in fædera veni. And tains the first judgment is first in diligence, and ex- of this case it may be observed that in its facts and cept as against innocent purchasers of the fraudulent upon the law it is highly instructive as bearing upon grantee, first in right. See Hardy v. Mitchell, 67 Ind. the kindred question involved in the case at bar. (2) A 485; Hanna v. Aebker, 84 id. 411. (3) But tbis rule is statute took effect March 3d, changing the rate of duty subject to the priorities, respectively, of partnership upon spirituous liquors from 70 cents to 90 cents. An and individual creditors in and to partnership and in- assessment was made for a period previous to and individual property. Hardy v. Mitchell, supra; Weyer cluding March 3d at 70 cents. Held, that though the v. Thornburgh, 15 Ind. 125; Dean v. Phillips, 17 id. statute was in force during the whole of March 3d, so 406; Bond v. Nave, 62 id. 505; Nat. Bank v. Locke, 89 that the rate for that day should have been 90 cents, id. 428; Freem. Judgm., $S356, 357; Glidewell v. the tax payer could not on that account dispute the Spaugh, 26 Ind. 319; Jones v. Rhoads, 74 id. 510; Huff validity of the assessment. Arnold v. United States, man v. Copeland, 86 id. 224, and cases cited. (4) But 9 Cranch, 104; In re Welman, 20 Vt. 653; In re Howes, however this may be, I think it quite clear that the 21 id. 619.. Cir. Ct., E. D. Wis., Feb. 5,1884. United States doctrine proposed cannot apply when the fraudulent v. O' Veill. Opinion by Dyer, J. conveyance has been annulled at the instance of the assignee in bankruptcy of the fraudulent grantor. By express provision of the bankrupt law, all property of
IOWA SUPREME COURT ABSTRACT. the bankrupt, conveyed in fraud of his creditors is, by virtue of the adjudication, and by the appointment of an assignee, vested in the assignee, to whom also the
DEED — GRANTEE MISNAMED -- REFORMATION – EVIpower and authority are given “to manage, dispose of,
DENCEMUST BE CLEAR.- Where property is conveyed to sue for, and recover all his property or estate, real or
a married woman, and by fraud or mistake her husband personal, debts or effects, and to defend all suits at
is named as grantee, equity will reform the instrument law or in equity pending against the bankrupt." 14 St.
to express the true agreement of the contracting par525. Accordingly it has been held, and is well settled, ties upon clear and satisfactory proof. The case is that after the appointment of an assignee iu bank
like Nowlin v. Pyne, 47 Iowa, 293. The parties made ruptcy, an action by a creditor to set aside a fraudu
a contract, employed a scrivener, and the scrivener by lent conveyance of the bankrupt or to reach, in any mistake failed to express the contract in apt words way, property fraudulently transferred, cannot be and terms. It appears that he used the words he inmaintained, and that the remedy must be had in a suit tended to use, and he thought he should name tho or action by or in the name of the assignee. Glenny wife first as a grantee, to show that she owned the v. Langdon, 98 U. S. 20; Trimble v. Woodhead, 102 id.
land. In such cases equity will reform the writing, 647 ; Moyer v. Dewey, 103 id.30). Dist. Ct.,D.Ind., 1884, making it conform to the agreement previously enMatter of Lowe. Opinion by Woods, J.
tered into between the parties. Nowlin v. Pyne,
supra; Stafford v. Fetters, 55 Iowa, 484; S. C., 8 N. W. SURETY-ALTERATION-- DISCHARGE WHEN STAT- Rep. 322; Reed v. Root, 59 Iowa, 359; S. C., 13 N. W. UTE TAKES EFFECT-ASSESSMENT.-.When after a bond | Rep. We need not set out or discuss the evidence had been signed by two sureties with the understand in detail. It is enough to say , that regard being bad ing between them and the obligor and obligee that it to the well-established rule that the proof necessary to was to be signed by a third surety whose name was reform a written instrument must be clear, satisfacwritten in the bond, the name of the third surety was tory, and conclusive, we think the decree of the Disaltered in the body of the instrument, with the trict Court is currect. Courtright v. Courtright. Opinknowledge of the obligee, by the substitution of a dif- ion by Rothrock, C. J. ferent surety, who then signed the bond, held that the [Decided April 24, 1884.] two sureties were discharged. There is a class of
CORPORATION cases in which it is held that a bond, perfect on its
- OFFICERS SELLING STOCK BELOW face, apparently duly executed by all whose names ap
PAR-FRAUD ON STOCKHOLDERS.-The officers of a corpear thereto, purporting to be signed and delivered, poration cannot properly sell the stock for less than and actually delivered without a stipulation, cannot
the par value. To enable a stockholder to recover be avoided by the Bureties upon the ground that they
from a corporation for the depreciatiou of his stock signed it on a condition that it should not be deliv- by mismanagement, he must show that the injury was ered unless it was executed by other persons who did peculiar to himself alone, as apart from the other not execute it, where it appears that the obligee had stockholders, and an instruction to a jury to this effect no notice of such condition, and there was nothing to
is correct. In Green's Brice's Ultra Vires, 143, note, put him upon inquiry as to the manner of its execu
it is said: “The sale of stook in a corporation by the tion, and that he had been induced upon the faith of directors at a less rate than the price fixed in the charsuch bond to act to his own prejudice. Dair v. United
ter is a fraud upon the law and the stockholders," citStates, 16 Wall. 1; Tidball v. Halley, 48 Cal. 610: State ing Sturges v. Stetson, 1 Biss. 246; Fosdick v. Sturges, v. Peck, 58 Me. 284; Cutler v. Roberts, 7 Neb. 4; Nash
id. 255; Mann v. Cooke, 20 Conn. 188; Fisk v. Chicago, v. Fugate, 24 Grat. 202: Millett v. Parker, 2 Metc. (Ky.; 568; Neuse River Nav. Co. v. Comrs., 7 Jones Law,
R. I. & P. R. Co., 53 Barb. 613; O'Brien v. Same, id. 608; State ex rel. v. Pepper, 31 Ind. 76. Then there are other cases in which it has been decided that if a
275. See also Osgood v. King, 42 Iowa, 478. Oliphant bond be written as if to be executed by two or three
v. Woodbury Coal and Mining Co. Opinion by Adams,
J. or more sureties, and it is in fact executed by only one, and is then delivered to the obligee, it is valid [Decided April 23, 1884.) and effectual against that one. Cutter v. Whittemore, MASTER AND SERVANT—“USUAL RISKS"-KNOWL10 Mass. 442. See also Russell v. Freer, 56 N. Y. 67. EDGE OF SERVANT-MACHINERY.-An employee, by reIn Smith v. United States, 2 Wall. 219, Mr. Justice maining in the service of his employer without obClifford states the rule to be that any variation in the jection, assumes the risk of such dangers as are occas
ioned by defects in the machinery, about which he is tract for the purchase of land, such payment is made employed, of which he has knowledge, or by the ex- upon a void contract, and the plaintiff can recover the ercise of reasonable diligence might gain knowledge, same of the defendant, even though the defendant does Money v. Lower Veiu Coal Co.,55 Iowa, 671; 8. C., 8N. not refuse to go on with the contract on his part; nor W. Rep. 652; Way v. Railroad Co., 40 Iowa, 341; Mul- can the defendant urge in defense of an action for such downey v. Railroad Co., 39 id. 615; Kroy v. Railroad money that the plaintiff obtained it through fraud Co., 32 id. 357; Greenleaf v. Railroad Co., 29 id. 14. from the third parties. Brandeis v. Newstadtl, 13 But when the employee is not engaged to work with Wis. 142; Thomas v. Sowards, 25 Wis. 631; Hooker v. the machinery he is not bound by this rule. An em- Knab, 26 id. 511; N. W. U. P. Co. v. Shaw, 37 id. 655; ployer is bound to provide machinery suitable and Clark v. Davidson, 53 id. 317; 10 N. W. Rep. 384. reasonably safe for the business, and to operate it in a Tucker v. Grove. Opinion by Taylor, J. reasonably safe and careful manner, and the existence [Decided April 8, 1884.] of a defect imposes a duty of greater care and dili
MUNICIPAL CORPORATION-DEFECTIVE BRIDGE-NOgence. Moran v. Harris. Opinion by Reed, J.
TICE OF CLAIM-COMPLAINT MUST ALLEGE NOTICE. In (Decided April 24, 1884.)
an action against a town for damages from a defective LIEN-LIVERY-STABLE KEEPER-EXTENDS TO EX- bridge in a public highway, a complaint which does EMPT PROPERTY -FORFEITURE BAILEE'S USE OF not allege that the notice provided by section 1339, RePROPERTY.-In this case there was evidence showing vised Statutes, 1878, was given to the supervisors, fails that the property was exempt from execution. The to state a cause of action against the town, and a deplaintiff contends that a livery-stable keeper's lien murrer to it for that reason will be sustained. In orcannot attach upon such property. It may be con- der that the plaintiff may recover damages, he must ceded that the lien can be enforced only by execution. also allege in his complaint that a claim for damages But the statute which gives the lien does not except was filed with the town clerk, as provided by section exempt property, but expressly gives the lien upon all 824 Revised Statutes 1878. Susenguth v. Town of property coming into the livery-stable keeper's hands. Rantoul, 48 Wis. 334; 4 N. W. Rep. 328; Plum v. Fond We do not wish to be understood as holding that the du Lac, 51 Wis. 393; 8N. W.Rep. 283; Benware v. Town rule would be different if the right to a lien existed of Pine Valley, 53 Wis. 527; 10 N. W. Rep. 695. These simply by common law. An innkeeper's lien exists cases are conclusive as to the insufficiency of the comby common law, and it was held in Swan v. Bournes, plaint. Wentwort v. Town of Summit. Opinion by 47 lowa, 502, that it attached upon exempt property. Taylor, J. But the plaintiff contends that even if the defendant [Decided April 8, 1884.] had a lien he lost it by claiming a lien for a general balance of account and for indebtedness for which he
TENDER—MUST BE UNCONDITIONAL.-An offer of had no lien. The balance claimed was $316.22, which payment, to constitute a tender, must be understood included something for keeping other horses, and
as a tender, absolute and unconditional; and to treat something, we think, for keeping the horse in ques
an offer of payment conditional upon a discharge from tion for which he had no lien. What the rule would
the whole debt, as a tender, is a fatal error. 2 Greenl. be if the plaintiff had tendered the amount for which Ev., $ 602, et seq. The alleged tender in Hunter v. the defendant had a lien, and the defendant had re
Warner, 1 Wis. 141, was, “ Warner said he had the fused to surrender the horse, we need not determine.
money, and it should be paid when due; that he was It seems to have been held that where a person who ready to pay,” etc. It was held no valid tender. “An has a lien upon property sets up a claim to it distinct offer with the understanding that it shall be accepted from and independent of bis lien, he will be deemed for the whole claim or the disputed claim is vot a good to have waived his lien. Perhaps too he would be
tender in law." Latham v. Hartford, 27 Kan. 249. “A deemed to have waived or forfeited it by wrongfully tender is not good accompanied with a demand for a claiming a lien for a larger indebtedness than that for discharge of the whole debt.” Richardson v. Boston which he had a lien, if he failed to disclose the true
C. Laboratory, 9 Metc. 42. “I showed him $500, and amount; and the same could not be presumed to be
told him he could have it for his claim." This was held within the knowledge of the debtor so that he could conditional, and a mere offer of payment, and unatender the true amount for which the lien was held. vailing as a tender. Tompkins v. Batie, 11 Neb. 147; 7 Thatcher v. Harlan, 2 Houst. (Del.) 178. See also in
N. W. Rep. 747. “An offer to pay to satisfy the whole this connection, Winter y. Coit, 7 N. Y. 288; Hanna v.
debt," was held no tender in law, in Thomas v. Evans, Phelps, 7 Ind. 23; Judah v. Kemp, 2 Johns. Cas. 411;
10 East, 101; and to the same effect are Glasscott v. Holbrook v. Wright, 24 Wend. 176; Mexal v. Dear Day, 5 Esp. 48; Lancashire v. Kellingworth, 2 Salk. born, 12 Gray, 326. But we see nothing in the case at
623; Clark v. Mayor, etc., 1 Keyes, 9; Thayer v. Brackbar to hinder the plaintiff from discovering the true ett, 12 Mass. 450. Elderkin v. Fellows. Opinion by Oramount for which the defendant had a lien so as to en
ton, J. (See 5 Am. Rep. 292; 23 id. 668. -ED.] able him to make a tender of that amount if he de- [Decided April 8, 1884.] sired. Where a bailee treats the thing bailed as his own, he cannot afterward claim a lien upon the same thing, but he may always use it so far as is necessary
MINNESOTA SUPREME COURT ABSTRACT. to for its preservation. This is implied in the very contract of bailment. But in the case at bar there
GIFT-FIDUCIARY RELATION — UNDUE INFLUENCE was evidence showing an express direction to that PRESUMED-ONUS ON DONEE TO REBUT-EQUITABLE effect. Munson v. Porter. Opiniou by Adams, J. JURISDICTION.-Upon grounds of publio policy, or as (Decided April 25, 1884.)
it is otherwise expressed, of public utility, equity exercises a salutary jurisdiction in setting aside dona
tions of property made to a donee who stands in some WISCONSIN SUPREME COURT ABSTRACT. confidential or fiduciary relation to the donor. The
relief granted in such cases rests upon a general prinSTATUTE OF FRAUDS-CONTRACT VOID-PAYMENT ciple applicable to all relations in which dominion is MADE ON MAY BE RECOVERED.—Where the plaintiff exercised by one person over another. Dent v. Benhas received money from certain third parties, and nett, 4 Mylue & c. 277; 1 Story Eq. Jur., $$ 307, 308; pays the same over to the defendant on a parol cou. Rockafellow v. Newcomb, 57 III. 186. The confidential relation of parent and child, and the fiduciary re- fendant, upon an allegation in the petition that be relation of guardian and ward, are among those in which fused to join with plaintiffs in the prosecution of the such relief is frequently granted. Equity looks with action. Section 3466, Rev. Stat., 1879, does not apply special jealously upon donations from a child to a to such a case. McAllen v. Woodcock, 60 Mo. 174, disparent wbeu made recently after the child comes of tinguished. Hill v. Marsh, 46 Ind. 218; Andrews F. age, or while he is under the constant and immediate Mokelumne Hill Co., 7 Cal. 330; Habicht v. Pemberinfluence of the parent (as for instance, residing with ton, 4 Sandf. 657; Clark v. Cable, 21 Mo. 223; Rainey F. him), or while his property is in the parent's posses- Smizer, 28 id. 310; Henry v. Mt. Pleasant Twp., 70 sion or control. Wright v. Vanderplank, 8 De Gex, id. 497. Ryan v. Riddle. Opinion by Martin, Comr. M. & G. 133; Baker v. Bradley, 7 id. 597; Bergen v.
COVENANT-AGAINST INCUMBRANCES-DAMAGES FOR Udall, 31 Barb. 9; Taylor v. Taylor, 8 How. 183; Pom.
BREACH.--An inchoate right of dower existing at the Eq. Jur., $ 961. Donations from a ward to his guard- date of a deed containing a covenant against incomian are regarded with still greater jealousy where the brances, and the demand of dower after it becomes circiimstances are such as to give the guardiau an as
consummate, will constitute a breach of such corecendency over the ward, for here the natural and mu
nant; and the covenantee may by purchase thereafter tual ties and obligations between parent and child are
extinguish the dower and recover a reasonable price wanting, and the position of the guardian is fiduciary paid therefor as damages for such breach. Williamson Hylton v. Hylton, 2 Ves. 547; Hatch v. Hatch, 9 id.
v. Hall, 62 Mo. 405; Maguire v. Riggin, 44 id. 512; Dick292, and note; Fish v. Miller, Hoff. Ch. 267; Pom. Eų.
sou v. Desire, 23 id. 151, 157; Kellogg v. Malin, 62 id. Jur., $ 962. Whether the donation be from a child to
429; Morgan v. Hannibal & St. Jo. R. Co., 63 id. 129; a parent or by a ward to his guardian, if the donor is
Walker v. Deaver, 5 Mo. App. 147, 139. Ward v. Ash80 placed as to be subject to the control or influence of brook. Opinion by Martin, Comr. the donee, the onus is on the parent or guardian (as the case may be) to show that “the transaction is
DEED-OF TRUST ON PERSONALTY-VOID AS AGAINST righteous." Gibson v. Jeyes, 6 Ves. 266; Hoghton v.
CREDITORS.-A deed of trust to secure a debt described Hoghton, 15 Beav. 299. In such cases the undue in
the property as “all and singular the farming imple fluence is, on grounds of public policy, prima facie pre
ments and tools and live dairy cattle now on the sumed from the peculiar relations subsisting between grantor's farm, together with all their increase or subthe parties. Archer v. Hudson, 7 Beav. 551; Hylton v.
stitutes therefor during the lien of this deed, to the Hylton, supra; Hatch v. Hatch, supra; Kerr Fraud &
value at any time of $4,000," and again as “a constant M. 178, 179; Williams v. Powell, 1 Ired. Eq. 460; Cham and continuous stock of farming implements, tools, bers v. Crabbe, 34 Beav. 457; Garvin's Admr. v. Will and live dairy cattle and their increase, of a valuation iams, 44 Mo. 465; Todd v. Grove, 33 Md. 188; Berdoe of at least 84,000." It also stipulated that the grantor v. Dawson, 34 Beav. 603; Huguenin v. Baseley, 2 Lead.
should at all times keep on his farm property of the Cas. Eq. (556) and notes; Pom. Eq. Jur., $$ 961, 962.
kind described, “worth on peremptory sale under the Substantially the same rules are applied to the case of provisions hereof at least $4,000," or as stated in an ex-guardian, where, notwithstanding the termina- another place, "at any time in value equal to an aption of the formal fiduciary relation between him and praisement of $4,000." No method was provided for his ward, he still retains his dominion in fact, and his having an appraisement made, and it did not appear position of influence as respects the ward or his prop- but what the implements, tools and cattle on the erty. This is especially true where the donations farm exceeded $4,000 in value. Held, that as against called in question are made while (even after his ma
other creditors of the grantor the deed was void, (1) jority) the ward continues to reside with the ex
because by the use of the word “substitutes" it imguardian, or the ex-guardian continues to retain pos- pliedly gave the grantor authority to sell and dispose session or control of the ward's property. Hylton v.
of the cattle in the ordinary course of business ; (2) be Hylton, supra; Hatch v. Hatch, supra; Pierse v.
cause of indefiniteness in the description of the propWaring, 1 P. Wms. 121, note; 1 Story Eq. Jur., $ 317; erty. White v. Graves, 68 Mo. 218. Goddard v. Jones. Pom. Eq. Jur., $ 961. In all these cases where the law Opinion by Norton, J. infers from the relations of the parties the probability of undue influence on the part of the party having dominion or ascendency over another, it requires that
RECENT ENGLISH DECISIONS. the influence iu fact exercised shall be exerted for the benefit of the person subject to it, and not for the
WILL,"MONEYS"-WHAT INCLUDED IN TERM.benefit of the party possessing it, otherwise the dona- The word “moneys” in a will is a flexible term, having tions will be promptly set aside. Hoghton, v. Hogb- facts of the case and the terms of the will. The court
a more or less extended meaning, according to the ton, supra; Cook v. Lamotte, 15 Beav. 234. As remarked by Lord Eldon, the crucial question in cases
is bound however to put upon the word its ordinary of this kind "is not whether she knew what she was
and literal meading unless the context shows that a doing, had done, or proposed to do, but how the inten- larger meaning should be put upon it. In 1874 a testation was produced; whether all that care and prudence trix made her will appointing executors, and directing was placed around her, as against those who advised her payment of her debts and other expenses, and giving which from their situation and relation with respect
"all her moneys” to her brothers and sisters in equal to her they were bound to exert in her behalf.” Hu- shares. She then proceeded specifically and minutely guenin v. Baseley, 14 Ves. 273; Hoghton v. Hoghton, to dispose of her furniture and triukets, without how supra. Ashton v. Thompson. Opinion by Berry, J.
ever expressly referring to any stocks or investments, [Decided April 9, 1884.)
or residuary real or personal estate. By a codicil made in August, 1883, she bequeatbed all her furniture and
effects in the house in which she and a named sister MISSOURI SUPREME COURT ABSTRACT.* might be living together at the time of her death to
such sister for life, with remainder to the persons to PARTIES-POINT CONTRACT.-All the joint obligees she confirmed her said will in all other respects. In
whom such effects were bequeathed by her will; and of a bond are necessary parties plaintiff in an action for its breach ; one of them cannot be made a co-de- New Three per cent Annuities, Great Northern Rail
September, 1883 the testatrix died, leaving (inter alia) * Appearing in 78 Missouri Reports.
way Consolidated and Preference stooks, and Chilian
Gerernment Bonds (payable to bearer) as well as cash sary for payment of the legacies not otherwise suffiin the house, and debts due to her, and furniture and ciently provided for; that when the legacies were paid trinkets, including some small articles not specifically or provided for the direction as to carrying on the bequeathed. Held, on originating summons, that business till the huir was thirty was inoperative, and although the gift of “all my moneys” could not be that if there were any surplus profit they must be ditreated as a residuary bequest, yet that under the cir- vided between the heir and next of kiu in proportion cumstances such gift in fact passed all the items, other to the respective values of the real and personal estate than furniture and trinkets, of which the testatrix employed in the business whilst the profits were being died possessed. Lowe v. Thomas, 5 De G. M. & G. 315, made. Ct. of App., Feb. 4, 1884. Nixon v. Cameron. distinguished. High Ct. Just., Chan. Div., March 5, Opinion by Selbourne, Lord Chan. (50 L. T. Rep. (N. 1884. Townley v. Townley. Opinion by Pearson, J. S.] 339. (See 17 Am. Rep. 422.- ED.)
MASTER AND SERVANT-NEGLIGENCE-LIABILITY OF TRUSTEE-DELEGATION OF
MASTER-SCOPE OF EMPLOYMENT-LORD CAMPBELL'S WENT OF BROKER-USUAL COURSE OF BUSINESS.-(1) A
ACT (9 & 10 VICT., CH, 93).-M. was a cloak-room clerk trustee cannot delegate to others the execution of his
in defendants' employ, and assisted at the parcels trust, but he may in the administration of the trust
office; he “ used to take up parcels for passengers from fund avail himself of the agency of such persons as
the cloak-room to the train, when there was no porter bankers and brokers in the regular course of business, there, and that was a regular thing for him to do." A and will not be liable for any loss which may be oc
passenger had asked him to take a parcel to the train, casioned to the trust fund thereby, if he has acted which he did, and as he was running back, he ran with the reasonable care and prudence with which a
against another porter, who in turn came against the man would act in his own business, and has not been ticket-collector, and the ticket-collector upset the guilty of any negligence or default. (2) A trustee, at plaintiff's wife, causing injuries which resulted in her the request of the cestui que trust, employed a broker
death. Field, J., nousuited the plaintiff, holding that to purchase certain securities authorized by the trust.
there was no evidence to go to the jury of any negliThe broker presented a bought-note to the trustee,
gence on the part of the defendants or their servants, and on his representation that the purchase had been
and that there was no evidence, that at the time of made subject to the rules of the London Stock Ex
the accident, M. was acting within the scope of his change, and that the money payable the employment. It was agreed at the trial, that if the next day, which was the accouut day, the trus
court should be of opinion that the nonsuit was wrong, tee gave him a check for the money.
He had judgment should be entered for the plaintiff for 2361. not in fact purchased the securities, and he misappro- and costs. Held, that there was evidence to go to the priated the money to his own use, and became insol- jury that at the time of the accident M. was acting vent. Held (affirmite une judgment of the court be
within the scope of his employment, that the nonsuit low, Lord Fitzgerald dubitante) that there being noth
was wrong, and that judgment should be entered for ing in the form of the bought-note to excite any sus
the plaintiff as agreed. High Ct. Just. Q. B. Div., picion in an ordinary prudent mun of business, and March 6, 1884. Milner v. Great Northern Railway Co. the whole transaction having been carried out in the Opinions by Lopes, Stephen and Cave, JJ. (50 L. T. usual course of business, the trustee was not liable for Rep. [N. S.] 367.) the loss incurred. Ex parte Belchier, Amb. 218, approred. House of Lords, Nov. 26, 1883. Spright v.
FINANCIAL LAW. Gaunt. Opinions by Selbourne, Lord Chan., Black
NEGOTIABLE INSTRUMENT-PRODUCTION OF NOTE AT burn and Fitzgerald, JJ. (50 L. T. Rep. [N. S.] 330.) (See 20 Eng. Rep. 523.-ED.]
TRIAL.-A person who seeks to recover upon a nego
tiable instrument must be prepared to produce it, and WILL,"ESTATE”—DIRECTION TO CARRY ON BUSI have it before the court on the trial, as controlling it, NESS.—(1) A testator made no express devise of his unless the instrument is lost, and the owner brings real estate, but gave a legacy of 5001. “to be paid out himself within the exemption afforded by equity or of his estate," and after giving other legacies, directed the statute. It is not enough to show that the note is that his executors might realize such part of his estate in the possession of or claimed by some one else. Sup. as they thought right and in their judgment, and pay | Ct. Mich., Apr. 30, 1884. McKinney v. Hamilton. the afore-named legacies. The personal estate was Opinion by Campbell, J. (19 N.W. R. 263.) suficient to pay the legacies. Held, that "estate". NEGOTIABLE INSTRUMENT-TRANSFER TO ONE PARTmeant personal estate only. (2) A testator at the time NER--PAYMENT TO ANOTHER.-- When a note payable to a of his death carried on business as a mechanical engi- partnership firm is indorsed by the firm in blank and neer on certain freehold land of his own, a part of the transferred to one of the partners before maturity, the machinery used in the business being fixtures attached maker, if he has notice of the transfer, is not disto the land. By his will the testator made no express charged of his liability to the transferee by payment devise of the freehold land, but directed his executors of the amount of the note to another member of the to carry on the business until M. (heir-at-law) attained firm. Cir. Ct., W. D. Texas, 1884. Stevenson v. Woodthe age of thirty. Subject to payment of the funeral hull. Opinion by Turner, J. (19 Fed. Rep. 575.) and testamentary expenses, debts, and legacies, the general personal estate of the testator was undisposed of, but the will directed that the executors might rea
THE AMERICAN BAR ASSOCIATION, lize such part of the estate as they might think right
THE Seventh Annual Meeting of the Association
will be held at Saratoga Springs, on Wednesday, same property, whether real or personal, which was Thursday and Friday, August 20, 21, and 22, 1884. The employed therein at the testator's death, and that the sessions will be held at 10 o'clock A. M. and 7:30 P. M. execators were entitled to the use of all such property on Wednesday and Thursday, and at 10 o'clock A. M. without paying any rent to the heir in respect of the on Friday, at Putnam's Musio Hall, corner of Broadlaud and fixtures; but that there was no gift of the way and Phila street, nearly opposite the United real estate by implication to the prejudice of the heir States Hotel. ju favor of the next of kin. Held also, that the busi- Wednesday morning.-The President's Address, by ness ought only to be carried ou so long as was ueces- Cortlandt Parker, of Newark, N. J.; Nomination and
to pay the legacies. Held, that the business was to THE