Imágenes de páginas

new trial, with leave to amend pleadings. The situa- have bond for bond in any event; it was a matter of tion of the case at this time, for the purposes of re- great moment to the purchasers, for every dollar almoral, was precisely the same as it would be if the lowed to the trustees was so much less for them. trial, instead of being on an issue of law involving the Swann v. Wright's Exrs., 110 U. S. 590. Williams v. merits, bad been on an issue of fact to the jury, and Morgan. Opinion by Bradley, J. the court had, in its discretion, allowed a new trial [Decided May 5, 1884.] after verdict. We can hardly believe it would be claimed that a removal could be had in the last case, and in our opinion, it cannot in the first. The case of MARYLAND COURT OF APPEALS ABSTRACT. Vannever v. Bryant, 21 Wall. 43, arose under the act

OCTOBER TERM. 1883*. of March 2, 1867, ch. 196. which allowed a removal at any time "before the final hearing or trial of the suit,”

NEGLIGENCE CROSSING RAILROAD TRACK-CONand what is there said is to be construed in connec- TRIBUTORY-QUESTION FOR JURY.-(1) Where a pertion with that fact. The same is true of Insurance Co. son attempts to cross the track of a railroad at a point v. Dunn, 19 Wall. 214. In King v. Worthington, 104 where no public crossing has been established, and U.S. 44, and Hewitt v. Phelps, 105 id. 393, the ques

where the individual, having no right to cross, takes tions were as to the time when a case could be re- upon himself the hazard of the attempt, the track moved that was begun before the act of 1876 was itself is a warning of danger, and no other evidence of passed. In Lewis v. Smythe, 2 Woods, 117, the ques- its existence is necessary. (2) But all persons have a tion here presented was not involved, and the remo- right to use as a place of transit an established crossval was decided to be too late because it was not ap- ing; and in approaching such places it is incumbent on plied for antil after a trial on the issues of fact had those having control of a train to observe proper care begun. In Miller v. Tobin, 18 Fed. Rep. 609, the ex- and caution, and a disregard for so plain and apparent perienced District judge for the District of Oregon did a duty may render them obnoxious to the charge of hold that a removal, applied for after hearing upon a the grossest negligence. (3) Notwithstanding the most demarrer to a complaint, because it did not state facts culpable negligence on the part of the defendant, the sufficient to coustitute a cause of action, could be had; plaintiff is not entitled to recover in the action if the but on full consideration, we are unable to reach that

evidence demonstrates that the infliction of the injury conclusion. Alley v. Vott. Opinion by Waite, C. J.

would have been impossible had the injured party ob[Decided April 21, 1884.]

served due care and caution. ln 39 Md. 449, it is

said, that “cases may and sometimes do occur, in CORPORATION—TRUSTEES OF RAILROAD-RIGHT TO which the uncontradicted evidence proves such a glarAPPEAL--EXCESSIVE ALLOWANCE.--Where trustees and ing act of carelessness on the part of the plaintiff as to receivers of a railroad under a first mortgage sell it un- amount in law to contributory negligence, and in such der contract that the purchasers will recompense them it is the duty of the court, when requested, to decide their expenses and services in caring for the road, the the question without the intervention of the jury. sale being made through agents of the purchasers, the But in no case ought the court to take the question of agents being themselves bondholders, and interested negligence from the jury unless the conduct of the in a second mortgage, these agents or brokers are plaintiff, relied on as amounting in law to contribuquasi parties in the case, and have such an interest, tory negligence, is established by clear and uncontraand are so situated, that they have a right, by leave of dicted evidence." Mo Mahon y. North. Cent. Railthe court, to except and object to charges and allow- way Co., 39 Md. 449. See also Pittsburg, etc., R. Co. ances presented by the trustees and receivers; and V. Andrews, 39 Md. 343; P. & R. R. Co. v. Killip, 88 upon their objection being overruled, and an order Penn. St. 412;

29 Md. 38. Penn. R. Co. made allowing the charges, they have the right to ap- v. State. Opinion by Yellott, J. peal, the order being final in its nature, and in a mat

DAMAGES — BREACH OF CONTRACT.- By contract ter distinct from the general subject of litigation. We

under seal, dated 13th, Nov., 1879, A. F. F. agreed to think that the position of Williams and Thomson

sell all the wood on his farms in Back River Neck to made them quasi parties in the case, and brought L. F., for seventy-five cents per cord standing, to them within the reason of the former cases decided by

mark out such grounds and on such farms as he this court in which persons incidentally interested in

wanted the wood cut from, and to give L. F. full coal some brauch of a cause have been allowed to inter

privileges; and L. F. on his part agreed to take all vene for the purpose of protecting their interest, and

kinds of wood that will do for charcoai, and to leave even to come into this court, or to be brought here on

no wood standing at all that can be made into charappeal, when a final decision of their right or claim

coal; to pay for it as soon as taken from the choppers, bas been made by the court below. We refer to the

or as soon as it is corded and measured, and to receive cases of Blossom v. Milwaukee R. Co., 1 Wall. 655,

and haul away from said farms all the wood as above where a purchaser at a foreclosure sale was admitted

specified, within two years from the date of this agreeto appeal; Minnesota Co. v. St. Paul Co., 2 Wall. 634,

ment. In an action of covenant brought by A. F. F. to the same effect; Hinckley v. Gilman R. Co., 94 U.

against L. F. for a breach of this contract, the court S. 467, where a receiver was allowed to appeal from a

said, “We must be governed by the rule recently apdecree against him to pay a sum of money in the

proved by this court in Camden Consolidated Oil Co. cause in which he was appointed receiver; Sage v. R. Co., 96 U. S. 712, where parties interested were al

v. Schlens & Co., 59 Md. 45; accordingly, held, (1) that

the contract constituted a sale by the owner of the lowed to appeal from an order confirming a sale;

land, of the growing wood or timber upon it, at a cerTrustees v. Greenough, 105 U. S. 527, where an appeal

tain sum per cord, the purchaser agreeing to cut and from an order for allowance of costs and expenses to a

haul away all of it that was suitable for charcoal, and complainant suing on behalf of a trust fund, was sustained; and Hovey v. McDonald, 109 U. S. 150, where

to pay the stipulated price therefor; the same to be an appeal was allowed to be brought against a receiver

done within two years. (2) That it did not follow be. from an order made in his favor. An allowance by a

cause of the failure of the purchaser to cut down and court to the receivers and trustees of a railroad for

carry away all such wood, or because he left some of

the wood standing, that the land itself was thereby services and expenses in managing considered held and excessive. It was a matter of no moment to the bond- permanently injured or deteriorated in value. (3) holders what allowances were made, for they were to

*To appear in 61 Maryland Reports.




That if the plaintiff, immediately after default made, negligence on the part of both parties, and they find had proceeded as he might have done, to cut, haul and that the negligence of the plaintiff was only slight sell this wood in the market at the defeudant's risk, compared with that of the defendant, their verdict he would have been entitled to recover the difference, must be for the plaintiff," is erroneous. Railway Co. if any, between what he would have realized from v. Peavey, 29 Kans. 169; Railway Co. v. Young, 19 id. such sale, after deducting the cost of cutting and haul- | 488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, ing, and the contract price. Masterton & Smith v. supra. Atchison, Topeka, etc., R. Co. v. Morgan. OpinMayor, etc., of Brooklyn, 7 Hill, 61; Eckenrode v. ion by Horton, C. J. Chemical Co. of Canton, 55 Md. 51. (4) That having

ATTACHMENT-OMISSION OF NAME OF PARTNER failed to do this, and the wood remaining standing ou



of the land, he could only recover the difference in value attachment is brought in the name of a firm, of the wood thus left on the land, between the rate of and in the papers as originally filed the name of one seventy-five cents per cord, and its market value as it of the partners is omitted, which omission is subsethus stood, and if it were of equal or greater value in quently cured by amendment, the omission is not the whole than seventy-five cents per cord, then be

such a defect as vitiates the levy or can be taken adcould recover no damages whatever on this account.

vantage of by subsequent attaching creditors, or post(5) That as one of the inducements on the part of the plaintiff to enter into the contract, and one of the ob

pones the lien of the levy to that of such creditors.

It was too slight a matter to affect or postpone the lien jects in the contemplation of both parties it, was

secured by the priority of levy. Stout v. Folger, 34 to have the land cleared for cultivation within two

Iowa, 71; Ward y. Howard, 12 Ohio St. 158. Henderyears, and a failure to clear it was to deprive the

son v. Stetler. Opinion by Brewer, J. plaiutiff of the use of it, for a time at least, as arable or tillable land, he was entitled for this deprivation,

RECORD NOT COLLATERALLY IMPEACHABLE to such damages, if any, as the jury upou proper evi

AGGREGATION OF FINES - HABEAS CORPUS. - The deuce should find he actually sustained thereby. (6)

records of court import absolute Terity; and That damages on this account however could ouly be

where jurisdiction over the

person is

conrecovered for such reasonable time after the expira- ceded, parol testimony is inadmissible in a col. tion of the two years as would have enabled the plaint-lateral proceeding, to prove that what the record shows iff to clear up his land by cutting and hauling away the

was done by the court was not in fact done. In re wood thus left uncut by the defendaut. Warren v.

Watson, Petitioner, 30 Kans, 753. A justice of the Stoddard, 15 Otto, 224. Furstenburg v. Fawsett. Opin

peace has jurisdiction to try a misdemeanor case ion by Miller, J.

although several counts, each charging a separate offense, are united in the same complaint, providing the

offenses are all of the same general nature, and are KANSAS SUPREME COURT ABSTRACT.*

each taken separately within the limits of his jurisdicREMOVAL OF CAUSE--DENIED

tion. In re Donnelly, 30 Kans. 191, 424. Where upon WATER-COURSE

the trial of a complaint containing several counts the DAMAGES FOR DIVERTING.-In an action against a railroad corporation to recover damages for the destruc justice finds the defendant guilty on each count, and

imposes a fine as to each count such as would be tion of a field of rye by the diversion of a uatural water-course, the corporation filed a petition for re

proper if the defendant had been tried upon that moval to the Federal court on the ground solely that

count separately, and no portion of the judgment has

been satisfied, held, that although the aggregate of the it was a corporation organized under the act of Con

fines exceeds five hundred dollars,a mittimus issued on gress to aid in the construction of a railroad to the

such judgment and sentence is not void, and the de. Pacific. Held, that the petition was properly denied.

fendapt is not entitled to a discharge in habeas corpus. (2) The rule laid down in Palmer v. Waddell, 22 Kans. 352; and Gibbs v. Williams, 25 id. 214, as to what con

It is not pretended that any part of the sentence has stitutes a natural water-course, reaffirmed. (3) Where

been complied with, so that even upon the authorities a railroad company, by the digging of a ditch along

most favorable to the petitioner, he is legally ip cusits track, diverts the flow of a natural water-course,

tody. People v. Liscomb, 60 N. Y. 572; People v.

Baker, 89 id. 467; People v. Wolf, 66 id. 10; Ex parte wholly or in part, to the injury of an adjoining land

Van Hagan, 25 Ohio St. 426; People v. Shattock, 45 N. owner, it is no defense to an action to recover for

H. 211. Matter of Macke. Opinion by Brewer, J. such damages that the diggiog of the ditch was necessary for the protection of its track, or that the ditch was wholly on land owned by it in fee. Union

PENNSYLVANIA SUPREME COURT Pacific R. Co. v. Dyche. Opinion by Brewer, J.


BANKRUPTCY-DISCHARGE-NEW PROMISE TO PAYomission to sound the whistle of an engine in accord

CONSIDERATION.-The effect of a discharge in bank. ance with the provisions of $ 60, ch. 23, Comp. Laws of 1879, is negligence. Railroad Co. v. Rice, 10 Kans. 426;

ruptcy is absolutely to extinguish a debt, and not Railroad Co. v. Phillipi, 20 id. 12; Railroad Co. v. Wil

merely to bar the remedy for its recovery. Hence the son, 28 id. 639. But in an action to recover damages bankruptcy therefrom, however clear, distinct and un

mere acknowledgment of a debt after a discharge in for stock injured on the crossing of a high way over the railroad track, if it appears by facts and circumstan

ambiguous it may be in its terms, is not sufficient to ces proved that the injuries complained of were not

restore the debt so that suit can be maintained

thereon. caused by or attributable to such omission or neglect,

Yoxtheimer v. Keyser, 11 Penn. St. 364;

Caufield's Appeal, 1 Week. Notes, 67; Allen v. Ferguthe negligence is immaterial, and creates no liabili against the railroad company for a recovery for dam

son, 9 Bank. Law Jour. 481. The promise to restore a

debt from which the debtor had been discharged by ages to the stock upon the track. Railroad Co. v. McDaniel, 63 Ill. 122; Railroad Co. v. Blackburn, id.

proceedings in bankruptcy upon which suit can be 167 ; Stoneman v. Railroad Co., 58 Mo. 503; Holman v.

brought must be clear, distinct and unequivocal

promise to pay the specific debt (not the expression of Railroad Co., 62 id. 562; Karle v. Railroad Co., 55 id.

a mere intention to pay), and must be without qualifi483. An instruction to the jury that“ if there was

cation or coudition. The moral obligation to pay, *To appear in 31 Kansas Reports,

coupled with the fact of the pre-existing liability, is suficient consideration for such a promise. A state- held for the tax upon the mineral strata, after a sevment in the following terms, "We owe her the money, erance, than cau the owner of the mine be held for the will pay it some day; can't say when," is a sufficient taxes upon the surface. Sanderson v. City of Scranton. promise upon which to bring suit for a debt discharged Opinion by Clark, J. by proceedings in bankruptcy. Where plaintiffs de- [Decided April 7, 1884. ] clare against a firm for a debt which has been discharged by proceedings in bankruptcy, and on the trial prove a sufficient promise by one partner subse- VERMONT SUPREME COURT ABSTRACT.* quent to the discharge to pay the debt, the narr. may be so amended after vordict as to declare against that


LIMITATION-FROM WHAT TIME RUNS-KNOWLEDGE partner only. Bolton v. King. Opiuion by Clark, J.

OF PROPERTY.-The defendant without leave took the [Decided July 16, 1884. ]

plaintiff's iron; in the following year he promised to MINES AND MINING-LEASE OR SALE-TAXES.-(1)

pay for it. Held, that the statute of limitations comWhere the surface of lands and minerals in place there

menced to run at the time of the promise. Before the under have been severed by the agreement of convey

statute had run on the promise, the defendant left the ance of the owner, and the respective divisions have

State, leaving attachable property here; but the plaint

iff had no actual knowledge of it; and there was no become vested in different owners, the municipal authorities are bound to levy their taxes according to

lack of reasonable diligence in not finding it. Held, the ownership and value of these divisions. And each

that the claim was not barred. It was not necessary owner can be made responsible only for the tax on his

tbat the plaintiff should have had actual knowledge of interest, whether underlying strata or surface. (2) A.

the property and the defendant's title to it, Tucker v. made an agreement with B., leasing to him all the coal

Wells, 12 Vt. 240; but the defendant's ownership of it beneath the surface of a certain tract of land of wbich A.

must have been notorious to such an extent that the was the owner. The lessee was to mine and remove in

plaintiff would have found it by reasonable search and each year at least a certain number of tons, which he was inquiry. Wheeler v. Brewer, 20 Vt. 113. Farnham v. to pay for monthly at a certain rate per ton, whether

Thomas. Opinion by Taft, J. mined or not, unless mining should be prevented by PARTNERSHIP-PROMISE BY ONE PARTNER-RATIFIcertain specified contingencies. In case of neglect for CATION.-One member of the defendant firm promised thirty days to pay the said royalty, it might be dis- to pay the debt due to the plaintiff from a certain martrained for. And for continued default the lease ble company. The firm owned one-fourth of the stock of might be forfeited. The letting however was not for the company,controlled its financial operations until it a term certain with reversion to the grantor, but with- became hopelessly involved; and the consideration of ont reversion and to be perpetual, until all the coal un- the promise was forbearance to attach its property, der the surface had been mined. And the rights and The partner making the promise managed the busiprivileges therein conferred were extended to the ness of his firm; all his operations and negotiations heirs, executors, administrators and assigns of the re- indicated a purpose to absorb and get title to the propspective parties. Held, that this agreement was not erty of the marble company; and this purpose was acmerely a license or lease to mine coal to become the complished. It did not appear but that the transaclessee's when mined, but that it operated as such a tions were within the scope of the partnership. Held, severance of the surface and subjacent strata, and a that a receipt of the benefit in obtaining title to and sale or assigument of the coal in place as would relieve possession of the property by the firm was a ratificathe owner of the surface from responsibility for taxes tion of all acts done in obtaining it; and that such a levied upon the coal. The language of this lease is in ratification was equivalent to antecedent authority most respects similar to that referred to in the case of from the firm. Lynch v. Flint. Opinion by Ross, J. Scranton y. Phillips, 8 Week. Notes, 425, which was "of all the coal in and under said lot and other lands

HIGHWAY-WHEN TOWN NOT BOUND TO KEEP IN REfor and during the term and period of time as shall be PAIR-ADOPTION-EVIDENCE.—The use of a road for required therefor to mine and remove all said coal.”

public travel however extensive that use may be, is The further stipulations bear a close analogy to the

not sufficient to constitute such road a highway by contract now before us. In delivering the opinion of adoption so as to impose the duty upon the town to the court in Seranton v. Phillips the present chief jus- keep it in repair. There must be in addition evidence tice says, although called a lease, it was virtually a sale

of some act of the town recognizing it as a highwayof all the coal, with unlimited time to remove it, with

as putting the same in the rate bills of the highway the right at their election to yield it up after the ex

surveyor, expending money thereon, shutting up the piration of ten years, etc. It is certainly true that a

old road, leaving no other avenue for travel, etc.; lease, properly so called, always conveys an interest in

hence the plaintiff failed to prove that the highway land, and in this respect it is to be distinguished from

upon which the accident happened was one that the a mere license (11 Casey, 287), but where that which

town was legally bound to keep in repair, by proving purports to be a lease conveys the interest of the les

that the road was used, that it was the direct thorsor it differs in no respect from a sale. Palmer v. Ed

oughfare from one street to another, that there were wards, 1 Doug. 187, note; 2 Black. Com. 317. (3) The

sidewalks upon both sides of it, and a lamp post on liability of the owner of coal or mineral in place for

one corner; and although the defendant did not obtaxes levied thereon, results from the nature of his es

ject to the admission of this evidence, it did not tate or interest, and therefore he is not relieved from

thereby waive its right to claim legal proof that it was this responsibility, on the principle inclusio unius est

bound to keep the highway in repair. In Blodgett v. exclusio alterius, by an express covenant in the instru- Royalton, 14 Vt. 288, it was held that the consent ment of severance that he shall pay all taxes levied

merely of the selectmen that any person should travel upon the coal mined, with recourse to the lessor to re

on any path whether a public or private road was no fund the same. A mineral right is taxable as land;

act recognizing such road as a high way for which the the owners of the surface and of the mine are each

town was responsible; and that their knowledge that taxable, according to the value of their respective in

a traveller supposed it to be a public highway was of terests; where there is a divided ownership there must

no importance, unless by some act of theirs it could be be a divided taxation. Logan v. Washington Co., 5

inferred that they had opened the road or adopted it Casey, 373. The owner of surface land can no more be

* To appear in 56 Vermont Reports.

as a highway to be repaired by the town. In the opinion that that question could be better, passed upon in ion, Judge Williams specifies acts of the town or se- the trial to the jury. The institution and proseculectmen which would constitute the adoption of a tion of proceedings under Rev. Stat. U. S., $ 4285, in a highway by a town-such as the shutting up an old District Court of the United States, followed by a deroad, leaving no otber avenue for travel except on a cree, is a bar to an action in this court to recover damroad which they had made, and putting the same into ages for personal injuries received in the marine colthe rate bills of the highway surveyor. The same lision which was the basis of the proceedings in the learned judge says, in Page v. Weathersfield, 13 Vt. District Court. Rounds v. Prov. & Stonington 8. S. Co. 424, that a public highway may be proved by showing Opinion by Durfee, C. J. that the town had recognized it as such by doing labor

MECHANICS' LIEN-ASSIGNABILITY-PRIORITY OVER thereon, or authorizing the highway surveyors to expend money thereou. In Folsom v. Underhill, 36 Vt. SUBSEQUENT MORTGAGE.-A. by special contract, made 580, it was held that neither the fact of a dedication of July 29, 1880, engaged to build a house for B. Decemland to the public as a highway, nor the use of the

ber 1, 1880, A. assigned the contract to C. At the time land hy the public as a road for public travel, would

of the assignment A. had taken no steps to secure a be sufficient to impose upon the town a duty to keep ceed under the contract and finish the house. Held (1)

mechanics' lien. B. consented tbat C. should prothe road in repair as a bighway. The use of a road for public travel however extensive that use may be, is

that B.'s consent to C.'s proceeding under the contract not sufficient to constitute such road a highway by That C. was entitled to perfect and enforce a mechan

was a consent to the transfer of the contract to C. (2) adoption so as to impose the duty upon the town to keep it in repair. The plaintiff claimed that her horse

ics' lien, using the name of the assignors. Caldwell v. became frightened at a dump-cart "tipped-up” on the

Lawrence, 10. Wis. 331 ; Pearsons v. Tincker, 36 Me. side of the street opposite a carriage shop. Held, that

384; Murphy v. Adams, 71 id. 113. Held further, that what one of the selectmen said immediately after the

a mechanics' lien, though inchoate, is assignable, passaccident, namely, the road was always full of some

ing in equity with the debt or contract for which it is thing there,” was not admissible, as the admissions of security. It is not for the debtor to say that it shall selectmen unconnected with any official act cannot be

not follow the debt; and evidently it is greatly to the used to charge the town with liability. The cart was

advantage of the creditor to have it to do so; for if it left at the shop for repairs at about ten A. M., and the

follows the debt, it enhances its value, because of the accident happened about two P. M., of the same day; security which it affords. Phillips on Mechanics' aud the

Liens, $ 55; Tuttle v. Howe, 14 Minn. 145; laege v. ion being where the cart stood and whether the selectmen knew of it, held, that evi

Bossieux, 15 Gratt. 83; Skyrme v. Occidental Mill & dence was inadmissible to prove that customers, when Mining Co., 8 Nev. 219; Rogers v. Omaha Hotel Co., 4

Neb. 54; Mason v. Germanie, 1 Mont. 263; Davis F. bringing their carriages to this shop for repairs, were accustomed to leave them on the margin of the bigh-Goff v. Papin, 34 Mo. 178; Murphy v. Adams, 71 Me.

Bilsland, 18 Wall. 659; Kerr v. Moore, 54 Miss. 286; way and sometimes outside the sidewalk. Tower v. Rutland. Opinion by Royce, C. J.

113. The defeudant contends that the lien did not pass because McDonald & Co. had taken no steps to perfect it before making the assignment. He refers

to Brown v. 'Smith, 55 Iowa, 31, and Langan v. RHODE ISLAND SUPREME COURT

Sankey, 55 id. 52. These cases hold that a mere right ABSTRACT.*

to a mechanics' lien, before the lien has been per

fected by the filing of the claims, is not assignable. SHIP AND SHIPPING UNITED STATES REVISED These cases were decided under a statute which deSTATUTES, SECTIONS 4283-5-APPLICATION-BAR.-The clared that “Mechanics' liens are assignable and shall United States Limited Liability Act of March 3, 1851, follow the assignment of the debt.” It not appearing in favor of ship owners, etc., Rev. Stat. U. S., SS 4283- | that C. entered into any contract with B. or that A. 4285, applies to injury to the person as well as to was ever released by B., held, that C. proceeded propinjury to property. In the case of the Epsilon, 6 Beu. erly in using the name of A. A mechanics' lien bas, 378, this point was carefully examined by Judge Bene- under Pub. Stat. R. I., ch. 177, § 1, precedence over diot, of the Eastern District of New York, and his any other lien which originates after the work has conclusion was that the sections prescribing procedure begun, hence over a mortgage given after the work has could not be held “to engraft any restriction upon the begun. McDonald v. Kelly. Opinion by Durfee, C. J. language" of the section granting the limitation. His opinion was that the United States District Courts

CRIMINAL LAW - ARSON - CONVICTION FOR LESSER have power to carry the limitation into effect under

OFFENSE -- PRESUMPTION AS TO CHARGE OF COURT their general admiralty jurisdiction independently of MOTION IN ARREST. - The indictment charged the the provisions for procedure. The construction ap- respondent with having set fire to and burned "a cerplied by Judge Benedict was approved and followed tain barn of one" B., *

“it being an outby Judge Choate, of the Southern District of New building adjoining the dwelling-house of the said " B. York, in the case of the Seawahnaka, 5 Fed. Rep. 599, The offense charged was punishable by $ 4126, R. L., as 624, in which he held that claims for damages for per

amended by the act of 1882, No. 84; the offense proved sonal injuries “cannot be distinguished from claims

was punishable by $ 4128, R. L. Both sections are to arising out of loss of cargo." See also Norwich Co. v.

prevent the unlawful burning of buildings; the former Wright, 13 Wall. 104. Providence & New York Steam

to protect the dwelling-house; the latter, every ship Co. v. The Hill Manf. Co., decided in the Supreme building by one section the offender, could be imprisCourt of the United States, October Term, 1883. We

oned for life; by the other, not more than ten years. therefore decide that the limitation of liability ex

Held, that a conviction under the indictment can be tends to personal injuries. The case of Wallace v.

had for the lesser offense. That it is to be presumed, Providence & Stonington Steamship Co., 14 Fed. Rep. in the absence of any statement to the contrary, that 56, is not in conflict with this decision; for in that case

the court properly instructed the jury to return a verthe court held simply that it was not necessary to de

dict for the lesser offense, the charge of the court, the termine on demurrer whether the limitation of liabil sentence, and the evidence, being appropriate to such ity extended to personal injuries, being of the opin-conviction State v. Downer, 8 Vt. 424 : State v. Burt, 25

id. 373; State v. Carpenter, 54 id. 551, and in many other *To appear in 14 Rhode Island Reports.

cases. This iudiotment on its face is sufficient; hence

the motion in arrest was properly overruled, as such a adopter signed a paper stating that she could “have motion is addressed to errors apparent upon the record. her son (the adopted child) at any time she calls for Sup. Ct., Vermont, Jan., 1884. State v. Thornton. Opin- him.” Held (1), that under the statute (Rev. Stat. ion by Ross, J. (60 Vt. 35.)

1879, $ 601), by joining in the deed she relinquished her INDICTMENT-CHARGING COMMISSION OF OFFENSE ON parental rights over the child; (2) that the subsequent PARTICULAR DAY –CONTINUANDO-EVIDENCE — BILL paper could not be construed to work a revocation of OF PARTICULARS, DISCRETIONARY.- An offense may the deed; it was evidently intended to allow her only be charged to have been committed either on some the temporary custody and society of the child. Matter one particular day, or if it have continuance, on a of Berenice S. Scarrett, 76 Mo, 565; Reinders v. Kopseries of days, under a continuando. A charge in the pelman, 68 id. 499. Matter of Clements. Opinion by latter form is usually made by charging the commis- Hough, C. J. sion on two days, more or less widely separated, the CORPORATION- ASSIGNMENT FOR BENEFIT OF CREDlatter generally being designated as the day of the ITORS-ULTRA VIRES-LIABILITY OF STOCKHOLDERS.finding of the indictment or of the making of the com- (1) An assigument of all the assets of an insolvent corplaint, and on divers days and times between them. poration for the benefit of creditors, if made by the When it is so made, testimony is admissible to prove board of directors without the consent of the stockthe commission of the offense at any time within the holders, is ultra vires and void, but only as against the period alleged. It has been held that the offeuse of stockholders. A creditor of the corporation cannot illegally keeping intoxicating liquors for sale may make the objection. Field on Corp., $ 151; Abbott v. properly be charged under a continuando. Common- American Hard Rubber Co., 33 Barb. 580. (2) An inwealth v. Snow, 14 Gray, 20; Commonwealth v. Chis- solvent corporation may include in an assignment for holm, 103 Mass. 213. When the offense is alleged to the benefit of its creditors the liability of its stockhave been committed on some one particular day, it is holders for unpaid stock for which no call has been well settled that testimony may be adduced to prove made. Ex parte Stanley, 4 De G. J. & S. 407; In re the commission either on the day mentioned or on any Sankey Brook Coal Co., L. R., 10 Eq. Cas. 381; Ohio other day before the finding of the indictment or the Life Ins. Co. v. Trust Co., 11 Humph. 1; Sagory v. Dumaking of the complaint, within the period of limita- bois, 3 Sandf. Ch. 466; Terry v. Anderson, 95 U. 8. 628; tion, but not to prove the commission on more than Marsh v. Burroughs, 1 Woods, 463; Lionberger v. one day. Commonwealth v. Kelly, 10 Cush. 69; Whar-Broadway Sav. Bank, 10 Mo. App. 499. (3) A deed of ton on Crim. Ev., $ 103. When the offense is charged assignment, which makes no reference to a schedule of as having been committed on a particular day, and the assets accompanying it, will not be limited in its opprosecutor has testimony which he wishes to intro-eration to the assets embraced in the schedule, but duce applying to other days, it is advisable for him, in will pass any which come within its terms. Eppright order to avoid any misunderstanding, to specify be- v. Nickerson. Opinion by Henry, J. forehand the day on which he undertakes to prove the offense. If he neglects to do this, and begins by in

DOGGEREL FOR DOG-DAYS. troducing testimony which directly tends to prove the charge on some particular day, he will be held to have

HE elected that day as the day on which he is to prove the

a faithful report of State v. Harriman, 75 Me. 562 ; offense, though he may prefer a different day. State

S. C., 46 Am. Rep. 423, holding that dogs are not "dov. Bates, 10 Conn. 372; People v. Jeuness, 5 Mich. 305,

mestic animals." We have heretofore given much of 321 ; Stante v. Bricket, 1 Camp. 473; Sedly v. Suther

Chief Justice Appleton's dissenting opinion-(may it land, 3 Esp. 202; Pierce v. Pickens, 16 Mass. 470. A

be a distant day when we have to write bis obituary) motion for a bill of particulars is a motion addressed

in a chapter of “Common Words and Phrases." to the discretion of the court, and as such is not reFisable for error on a bill of exceptions. Common- A dog Miller had, that was well-bred and knowing, wealth v, Giles, 1 Gray, 466; Commonwealth v. Wood,

Worth a hundred or more as good dogs are going. 4 id, 11; Chaffee v. Soldan, 5 Mich. 242; State v. Hood,

He lived in Wiscasset, a quiet old town; 51 Me. 363. Sup. Ct., Rhode Island. State v. Nagle.

The dog in his back yard patrolled up and down,
Opinion by Durfee, C. J. (14 R. I.)

And guarded his house from burglars and thieves-
If aught worth the stealing any believes

Could be found in the quiet old burg of Wiscasset-
MISSOURI SUPREME COURT ABSTRACT.* Though for ruinous beauty no town can surpass it.

This well-behaved creature, in no mischief caught,
MARRIAGE-WIFE ABANDONED BY HUSBAND MAY In the peace of the State, one Harriman shot.
SUE ALONE.-A married woman may sue as a femme Provoked at the outrage, the owner then cited him
sole in all cases where her husband has abandoned or

To court, and the jury for malice indicted him. deserted her, and taken up his abode in another State

of the criminal law 'tis a prominent feature or jurisdiction. This was the rule of the common law

That whoever with malice a domestic creature and the statute has not changed it. 2 Wag. St. 1001, $ Shall kill, poison or maim, or only disfigure, 8; Rev. St. 1879, S 3468; Co. Litt. 132, 133; Viner By stabbing or beating or drawing of trigger, Abridg. 151, 152; 1 Black. Com. 443; Rose v. Bates, 12 of grave misdemeanor shall guilty be held, Mo. 33; Musick v. Dodson, 76 id. 624; Danner v. Ber

And be fined for the crime, or in prison be celled. thold, 11 Mo. App. 351; Gallagher v. Delargy, 57 Mo.

The dog-killer hied him to Counsellor Moore, 37: Abbott v. Bailey, 6 Pick. 89; Gregory v. Pearce, 4

A lawyer well-versed in juridical lore, Met. 478: Gregory v. Paul, 15 Mass. 31; Bean v. Mor

To make a defense with skill and with tact gan, 4 McCord, 148; Rhea v. Rhermer, 1 Pet. 100;

That should forefend the pains of his treacherous act. Cornwall v. Hoyt, 7 Conn. 427; Clark v. Valentine, 41

"The killing the dog, you cannot deny?" Ga. 143; Love v. Moynehan, 16 I1l. 277; Roland v. Logan, 18 Ala. 307; Osborn v. Nelson, 59 Barb. 375.

"I can't," said the man, "I can't tell a lie. Phelps v. Walthen. Opinion by Martin, Comr.

By daylight I shot him, provoked at his howling, PARENT AND CHILD ADOPTION. – A widowed

That kept me nights long, mad sleepless and owling." mother joined in executing a deed of adoption of her

"Well then we'll admit the killing the cur," child. A day or two afterward, at her request, the

Said the lawyer, "and to the indictment demur.

To the court we will plead--this gets rid of the jury*Appearing in 78 Missouri Reports.

That a dog is a creature feræ naturæ.”

« AnteriorContinuar »