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authority, and admitting the duty of the officer of the UNITED STATES SUPREME COURT ABUnited States, holding the prisoner under its process,

STRACT. to return the fact and show his warrant, the chief jus. tice continues: “But after the return is made, and the

COVENANT-TO ADVANCE MONEY TO TAKE UP COUState judge or court judicially apprised that the party

PONS- RAILROAD LEASE.-By a lease from one railroad is in custody under the authority of the United

corporation of its railroad to another railroad corporaStates, they can proceed no further. They then know

tion, subject to a previous mortgage, the lessee covthat the prisoner is within the dominion and jurisdic-enanted to pay as rent a certain proportion of the tion of another government, and that neither the writ

gross earnings, and to state accounts semi-annually, of habeas corpus nor any other process issued under and further covenanted, if the rent for any six months State authority can pass over the line of division be

should be insufficient to pay the interest due at the tween the two sovereignties. He is then within the

end of the six months on the mortgage bonds, then to dominion and exclusive jurisdiction of the United advance a sufficient sum to take up, and to take up, States. If he has committed an offense against their the balance of the coupons for such interest; and it laws, their tribunals alone can punish him. If he is

was agreed that for all sums so advanced the lessee wrongfully imprisoned, their judicial tribunals can re

should have a lien before all other liens except the lease him and afford him redress.''

No judi- mortgage. Eighteen months later, after the lessee had cial process, whatever form it may assume, can have accordingly paid and taken up some coupons, and had any lawful authority outside of the limits of the juris- declined to take up others, on account of the refusal diction of the court or judge by whom it is issued, and of the lessor to accept in payment of rent coupons so any attempt to enforce it beyond these boundaries is taken up, the two corporations executed a supplemennothing less than lawless violence." And in Tarble's

tal agreement, by which, in lieu of the rent reserved case, 13 Wall. 397, commenting on this language of in the lease, and of all advances of money to take up Chief Justice Taney in Ableman v. Booth, supra, Mr. coupons, the lessee covenanted to pay, and the lessor Justice Field points out that it was not intended merely to accept, as rent, « larger proportion of the gross to meet cases where the authority of the United States earnings, “all accounts being settled exactly, and all was undisputed, but cases where its validity was ques- liabilities and obligations between the two companies tioned, and it appeared that the prisoner was held un- being adjusted and discharged by and upon the semider claim and color of such authority, in good faith, annual statements provided in said lease;" the lessor and not by way of mere pretense and imposition. And released the lessee from any obligation to make future the exclusive authority of the court issuing the writ advances of money to take up coupons, and from liaextends, not only to the decisions of all questions af- bility for any previous neglect to make such advances, fecting its jurisdiction, and the form and force of the and from any obligation to pay money in the nature writ itself, and the validity of the proceeding in issu- of rent and advances, except the proportion of the ing and executing it, but also of all questions affecting gross earnings stipulated in the supplemental agreethe identity of the person or property seized and held ment; and all the provisions of the lease, except as so under color of its authority, and the right to exempt | modified, were ratified and confirmed, and “all causes them from its operation. It does not avail therefore of action for breach of any agreement therein conto say that as the writ commands the officer to take tained,” which had arisen since its execution, were the property of the defendant, he cannot under that mutually waived and released. The lesseo afterward claim to take and hold the property of another, because paid rent computed according to the supplemental the property which he does actually take he takes and agreement. Held, that any claim of the lessee against holds as the property of the defendant, claiming it to the lessor, or against the mortgaged property, for be such, and therefore he has it in his possession uuder

money paid to take up coupons, was released and discolor of process and claim of right.

charged. Stewart v. Hoyt. Opinion by Gray, J. In Lammon v. Feusier, 110 U. S., already [Decided April 21, 1884.] cited, it was said by Mr. Justice Gray, in reference to

JURISDICTION-FEDERAL QUESTION MUST APPEAR. the case of a common-law attachment, that “the taking of the attachable property of the person named in the

-From the beginning it has been held that to give us. writ is rightful, the taking of the property of another

jurisdiction in this class of cases it must appear affirmperson is wrongful; but each, being done by the mar

atively on the face of the record, not only that a

Federal question was raised and presented to the shal in executing the writ in his hands, is an attempt

highest court of the State for decision, but that it was to perform his official duty, and is an official act.” The same is true of a similar levy under an execution, as

decided, or that its decision was necessary to the

judgment or decree rendered in the case. Murdock we have shown that there is no difference relevant to the point between the two writs.

v. Memphis, 2 Wall. 636. The judgment in the State Property thus levied on by the attachment or

court was a bar to this action, and precluded the taken in execution is brought by the writ within the

court below as well as this court from reopening the

original litigation and considering again the quesscope of the jurisdiction of the court whose process it is, and as long as it remains in the possession of the

tions that were put at rest between the parties by the

decision in their former suit. It is apparent therefore officer it is in the custody of the law. It is the bare fact of that possession under claim and color of that

that no Federal question which there may have been

in the case was decided by the State court, and that authority, without respect to the ultimate right, to be

the decision of such a question was not necessary to asserted otherwise and elsewhere, as already suffi

the fival decree rendered. Choteau v. Gibson. Opinciently explained, that furnishes to the officer complete immunity from the process of every other juris

ion by Waite, C. J. diction that attempts to dispossess him. That was the

(Decided March 31, 1884.) defense made and relied on by the plaintiff in error in CONFLICT OF LAWS-ADMINISTRATION-POLICY OF the present case, and to which the Supreme Court of INSURANCE-WHERE ASSETS- LETTERS EVIDENCE OF Michigan refused to give its due and conclusive effect. AUTHORITY.-A policy of life insurance, issued by a For that error the judgment is reversed, and the cause company incorporated in one State, payable to the asis remanded, with directions to affirm the judgment of sured, his executors or administrators, is assets for the the Circuit Court for the county of Kent in favor of the purpose of founding administration upon his estate in plaintiff in error, and

another State, in which the corporation, at and since It is'so ordered. the time of his death, does business, and as required by the statutes of that State, has an agent on whom clusive of all others for the enforcement of that right. process against it may be served. The general rule is Farmers & Mechanics National Bank v. Dearing, 91 that simple contract debts, such as a policy of insur- U. S. 29. The surety has not any more than his prinance not under seal, are for the purpose of founding cipal the right to recover back the interest without the administration, assets where the debtor resides, with aid of a statute. Consequently, if his principal could out regard to the place where the policy is found, as not make this defense, he cannot. The forfeiture and this court has recently affirmed in Wyman v. Halstead, the remedy are creatures of the same statute, and 109 U. S. 654. But the reason why the State which must stand or fall together. The defense as stated in cbarters a corporation is its domicil in reference to the affidavit is not that interest stipulated for has been debts which it owes, is that there only can it be included in the note, but that interest actually paid sued or found for the service of process. This is now at the time of the discount and the several renewals changed in cases like the present; and in the courts of should be applied to the discharge of the principal. In the United States it is held that a corporation of one this particular, the case presents the same facts subState doing business in another is suable in the courts stantially as Driesbach v. National Bank, 104 U. S. 52. of the United States establisbed in the latter State, if To entitle the defendant to such relief as was given in the laws of that State so provide, and in the manner Farmers' & Mechanics' Bank v. Dearing, cited above, provided by those laws. Lafayette Ins. ('0. v. French, it should be made to appear by distinct averment that 18 How. 404; Railroad Co. v. Harris, 12 Wall. 65; the note sued ou includes interest stipulated for and Ex parte Schollenberger, 96 U. S. 369; Railroad Co. v. not paid, as well as principal. Stephens v. MonongaKoontz, 104 id. 5, 10; see also Bowdoin v. Holland, 10 hela National Bank. Opinion by Waite, C. J. Cush. 17; Memphis R. Co. v. Alabama, 107 U. S. 581. [Decided March 31, 1884. ] This case is not governed by the decision in Insurance Co. v. Lewis. 97 U. S. 682. The question there was as to the authority of a public administrator in Missouri, under a statute of that State, to bring an action on the

KANSAS SUPREME COURI ABSTRACT. policy. It appeared affirmatively that the intestate

JULY TERM, 1883. resided in Wisconsin wbeu he died, and died there, and that there was already an administrator appointed

NEGLIGENCE-RAILROAD—EVIDENCE TO SHOW.-A in Wisconsin, so that the defendant could not be proportion of the evidence introduced on the trial tended tected against a future suit by a proper representative to show that the plaintiff's intestate, who was a yard of the estate. Under section 18, chapter 3, of the Re- switchman in the employ of the defendant railroad vised Statutes of Illinois, of 1874, a husband is entitled company, and whose duty it was to couple cars, and to administration on the estate of his wife, if she left who was a new man in the yard, and had but little property in Illinois. Letters of administration, which knowledge of the same, while attempting to couple a state that the intestate bad at the time of death per

flat car, loaded with projecting bridge timbers, and a sonal property in the State, are sufficient evidence of box car, properly went in between them to couple the authority of the administrator to sue in that them, and stepped into a ditch made by the railroad State, in the absence of proof that there was no such company, of which ditch he did not have previous property. Life Insurance Co. v. Woodworth. Opinion knowledge, and slipped, and in recovering himself so by Blatchford, J.

raised his head that it came between the projecting

timbers and the box car, and was so crushed that he [Decided March 31, 1884.]

immed iately died. Held, that such evidence tended ABATEMENT-PLEA IN- ACTION PENDING-APPEAL- to show negligence on the part of the railroad company USURY-SET OFF.-The plea of another action pending and did not necessarily show negligence on the part is a plea in abatement (Bao. Abr. Abatement M; Com of the plaintiff's intestate. Brown v. Atchison. OpinDig. Abatement H,24; 1 Chitty's Pl.[10th Am.ed.) 453; ion by Valentine, J. 3 id. 903, note y), and by section 1011 of the Revised Statutes, which is a re-enactment of a similar provis- In a chattel mortgage of certain peat cattle and other

CHATTEL MORTGAGE- SUFFICIENT DESCRIPTION.ion in the Judiciary Act of September 24, 1789, ch 20, $ property the descriptions of the neat cattle were gen22, 1 Stat. 84, 85, it is expressly provided that there erally correct, except that it described one of such shall be no reversal in this court or the Circuit Court cattle as “dark red,” when in fact it was dark red, for error in ruling any plea in abatement, other than a

with some wbite spots on it; and described another as plea to tie jurisdictior of the court. Under this statute, it was held in Piquignot v. Pennsylvania R. Co., belly and a little white on its back; and described two

“light red," when in fact it had some white on its 16 How. 104, which came from the same district as this case, that the Judgment of the Circuit Court, on pre- of them, in addition to the description given in the

others as “two spring heifer calves," when in fact one cisely such a plea as that contemplated by this affi- mortgage, was a roan heifer with an enlarged knee: davit of defense, was “not subject to our revision on

but taking the entire descriptions of such cattle, with a writ of error." The defense is one which merely the inquiries which the mortgage itself would suggest, defeats the present proceeding, and does not conclude any person could have ascertained the cattle that the plaintiff forever, either as to his right to sue in the Circuit Court of the United States, or as to the merits

were mortgaged; therefore held, that the descriptions of the matter in dispute. All the other defenses are

are sufficient, and the mortgage itself is valid. Adams covered by the decision of this court in Barnet v. Na- Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id.

v. Hill, 10 Kans. 627; Brown v. Holmes, 13 id. 482; tional Bank, 98 U. S. 555 The only difference between 246, Miller v. Kansas Lumber Co., 26 id. 574. Griffith v. that case and this is that there the defendant was the

Wheeler. Opinion by Valentine, J. maker of the note who actually paid the usurious interest, and here the defendant is the surety of the

TITLE-TAX SALE-WHAT PURCHASER MAY RECOVER maker. It is difficult to see how the surety stands, as

IF DEFECTIVE.-A purchaser at a tax sale whose title to the question now presented, in any better position titled to a recovery of all taxes paid by him and inter

in an ejectment action is adjudged defective, is enthan his principal. The ground of that decision was, that as without the statute there could be no recovery

est thereon, whether paid within three years before from the bank for usurious interest actually paid, and

the commencement of the action, or not.

Smith F. as the statute which created the right to sucn a recov.

Smith, 15 Kans. 290; Hoffmire v. Rice, 22 id. 749; Jefery also prescribed the remedy, that remedy was ex

* To appear in 31 Kansas Reports.

fries v. Clark, 23 id. 454; Fairbanks v. Williams, 24 id. ILLIVOIS SUPREME COURT ABSTRACT.* i6; Morgan y. Comm’rs of Miami Co., 27 id. 89; Rus

JUNE TERM, 1883. sell y. Hudson, 28 id. 99; Flint v. Douglass, id. 414; Myers v. Coonradt, id. 211. A tax purchase is not PARTNERSHIP-RIGHT TO USE PATENT GRANTED BEprimarily a purchase of the lien, but a purchase of a FORE DISSOLUTION-RIGHT TO SHARE OF ROYALTIES. title. Upon the payment of taxes by a tax purchaser

A. and B. entered into a copartnership, the former to he acquires no liep which he can foreclose as an ordi

furnish $1,000, and the latter, as his capital, his patent nary lien. Corbin v. Young, 24 Kans. 198. (2) A party for the manufacture and sale of “incased glass ves. is not entitled to the benefit of the occupying-claimant sels,” the articles of copartnership providing that the act, or to a recovery for the value of improvements profits of the business and the proceeds arising from made by him, unless at the time of such improve

either the sale or leasing of any territory should be ments he has the full and actual possession. He may equally divided between them, either one of the partnot go upon land in the possession of another, and

ners having the right to sell or lease, and that the partmake improvements and receive compensation there- nership might be dissolved by either, on giving notice for, but must first acquire full and actual possession. thereof, at any time. The contract also provided that Coonradt v. Myers. Opinion by Brewer, J.

a division of the assets should be had in case of a dis

solution" without a sale of the business," in which JUDICIAL SALE-VOIDABLE - NO COLLATERAL AT

event each partner was to take back what he put into TACK.-The great weight of authority would seem to

the business. Prior to the dissolution of the firm and be that neither a sheriff's deed nor a sheriff's sale is

notice thereof, B., the patentee, granted to C. the exvoid, but at most only voidable; and that in order to

clusive right to manufacture and sell wares under the defeat either the sale or the deed, it must be attacked

patent, and all reissues of the same, for the entire by some direct and appropriate proceeding. See John

term it might run, reserving a certain royalty or li. son v. Hovey, 9 Kans. 65; Paine v. Spratley, 5 id. 525;

cense fee on all wares manufactured and sold by C. Bunker v. Rand, 19 Wis. 271; Raymond v. Pauli, 21 id.

Held, that as the transfer of the exclusive right under 531; Raymond v. Holborn, 23 id. 57; Tillman v. Jack

the patent to C. was the same as a sale, and was made son, 1 Minn. 183; San Francisco v. Pixley, 21 Cal. 56;

prior to the dissolution, A. was entitled to one-half of Williams v. Allison, 33 Iowa, 279; Cunningham v.

the royalty or license fees thereafter to be paid by C. Cassidy, 17 N. Y. 276; Mohawk Bank v. Atwater, 2

to B., and that if it was a mere leasing to C. the same Paige's Ch. 54; Van Valkenburg v. Trustees,66 Ill. 103;

result would follow. Norris v. Rogers. Opinion by Evans v. Wilder, 5 Mo. 313; Rector v. Hartt, 8 id. 448;

Scott, J.
Winters v. Heirs, etc., 6 Coldw. 328. See also Painev.
Spratley, 5 Kans. 525; Freeman on Exec., $S 311 and

TAXATION-WHEN COLLECTION ENJOINED--OWNER 343; Rorer on Judic. Sales, $ 1059. In Michigan and PERMITTING SALE OF LAND-TENDER TO HOLDER OF Indiana, the decisions are the other way under local

CERTIFICATE.-(1) A court of equity will never interstatutes, though the following decisions in Indiana fere to enjoin the collection of taxes unless they are are in accordance with the general rule: West v.

void or levied without authority on the part of the offiCooper, 19 Ind. 1; Patten v. Stewart, id. 233. See

cers executing the revenue laws. As long as such offialso upon this subject, Freeman on Exec., $ 296; cers are acting under the law in imposing and collectRorer, on Judic. Sales, $749, et seq. The proper

ing taxes the courts will not interfere, except where way to attack a sheriff's sale for irregularities is by

they transcend their powers and act without legal warmotion, in the same case and before confirmation of

rant. Ottawa Glass Co. v. McCaleb, 81 Ill. 556. Nor the sale, to set aside the sale. There may be other

for the reason that the assessment is not strictly ac. proper modes of defeating irregular sheriff's sales and cording to the letter of the law. Chicago, B. & Q. R. sheriff's deeds, but we do not think it is necessary now

Co. v. Siders, 88 Ill. 320. Numerous other cases in this to refer to them. Pritenard v. Madren. Opinion by

court announce the same doctrine. (2) If the owner of Valentine, J.

land lies by and permits judgment to go against his
land for taxes, and the same to be sold and paid for, it
is the settled law of this court that he must tender or

offer to pay the holder of the certificate the purchaseTEXAS COMMISSION OF APPEALS AB

money and all taxes he has paid, with interest thereon, STRACT.

before he can have relief. Reed v. Tyler, 56 Ill. 288;

Reed v. Reber, 62 id. 240; Farwell v. Harding, 96 id. AGENCY-DECLARATIONS TO PROVE AUTHORITY TO 32; Barnett v. Cline, 60 id. 205. Other cases announcRELEASE DEBT.-It is a general rule that the declara- ing the same rule might, if necessary, be cited. It is tions or admissions of one who assumes to be agent for based on the fundamental rule that he who seeks another, are not of themselves admissible to prove equity must do equity. Moore v. Wayman. Opinion such agency, but such declarations, or admissions, by Walker, J. when taken in connection with other facts tending to establish the agency, are admissible. Latham

MICHIGAN SUPREME COURT ABSTRACT. Pledge, 11 Tex. 440. Ordinarily an agent having authority to collect a debt, has no authority to como

MASTER AND SERVANT-RISKS OF EMPLOYMENT pound or release it, and when such authority is claimed for the agent it devolves upon the party so claiming it

SERVANT MUST USE ORDINARY CARE.- A railroad com. to prove it. Wheeler & Wilson Co. v. Crossland. Opin

pany does not owe to its employees the duty of having ion by Hurt, J.

its side tracks perfect, and the risk of imperfections (Decided Dec., 1883.]

there is one of the risks of the employment. The com

pany has a right to expect that every brakeman will use LANDLORD AND TENANT-RENT-SUB-TENANT.-It is

ordinary care in examining his footing and surroundwell settled that a sub-tepant is not responsible to the

ings, and cannot be held liable for not guarding landlord for the rent due by the tenant, nor can the

against an occurrence likely to happen in any place crop of the sub-tenant be taken for the payment or

where the ground was uneven. It is not true, as often the same. W. & W.'s Con. Rep., § 607; Hewey v. Mc

imagined, that as between the employer and employee Grew, 44 Tex. 412. Knight v. Old. Opinion by

all mishaps arising from defects of appliances or premHurt, J.

* To appear in 107 Illinois Reports.

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NOT

DECREED

ises are taken out of the category of accidents. In of the corporation to which it there succeeded, and of our opinion the case comes within the same principle its members, and consequently to be a citizen of that with Mich. Cent. R. Co. v. Austin, 40 Mich. 247. (2) State for many purposes, while in the other State it Where railroads consolidate the new company is sub- would stand in the place of the other corporation in reject to the duties and liabilities of its predecessor as if spect to citizenship there. Ohio, etc., R. Co. y. Wneeoriginally incurred by it. Batterson v. Chicago, etc. ler, 1 Black, 286; C. & N. W. R. Co.v. Whitton, supra; Opinion by Campbel, J.

Allegheny Co. v. Cleveland, etc., R. Co., supra; Texas, [Decided March, 1884.]

etc., R. Co. v. McAllister, 12 Am. & Eng. Ry. Cas. 289. MORTGAGE-FORECLOSURE BY ADVERTISEMENT-NO

Chicago, etc., v. Auditor-General. Opiniou by Cooley, TICE-ESTOPPEL.-Where a party procures an assign

C.J. (See 5 Am. Rep. 344.] ment of a mortgage to himself, and by advertising it

[Decided March, 1884.) in a newspaper, not circulated in the neighborhood, succeeds in foreclosing without the knowledge of a

MARYLAND SUPREME COURT ABSTRACT.* half-owner of the land, who is its occupant, such partowner has an equitable claim to have the mortgage set

SPECIFIC PERFORMANCE - WHEN aside; but if with a knowledge of the fraud perpe

EQUITABLE MORTGAGE FOR MONEY ADVANCED.-G. trated upon him, he purchases the equity of redemption having purchased with his own money a vacant lot of or accepts half of the surplus money paid at such sale, ground, conveyed the same to his wife, who had no he is not in position to be entitled to the relief asked property of her own before marriage, and acquired for, nor willany tender less than the whole amount

none afterward, except what she received from her which was paid at the foreclosure sale be effectual.

husband. Desiring to build a house on the vacant lot, Norton v. Sharp. Opinion by Champlin, J.

G., by the authority of his wife, applied to a building [Decided March, 1884.]

association to borrow money for that purpose, agreeTAXATION-CONSOLIDATION OF CORPORATIONS OR

ing to mortgage the property to secure the same. FindGANIZED IN DIFFERENT STATES-STATUS.-It is famil

ing that he could obtain the money from his sister, iar law that every corporation has its existence and

who was then unmarried and living with him, negotiaresidence, so far as the term can be applicable to the

tion with the building association was discontinned. artificial person and within the territory of the sover. The sister had a mortgage of $3,325, not due, eignty creating it (Marshall v. Baltimore, etc., R.

which was paying her seven per cent interest. Co., 16 How. 314; Chicago, etc., R. Co. v. Whitton, 13

To accommodate her brother, she sold this mortgage Wall. 270; Miller v. Dows, 94 U. S. 444; Vose v. Reed,

at considerable loss, and out of the proceeds paid to 1. Woods, 647 ; Allegheny Co. v. Cleveland, etc., R. Co. him the sum of $2,965, all of which was applied to the 51 Penn. St. 228; Lake Shore, etc., Ry. Co. v. People, building of the house. The sister with her husband 46 Mich. 193; 9 N. W. Rep. 249), it comes into exist

filed a bill to have the lot with the improvements ence there by an exercise of sovereign will; and thereon made responsible for and charged with the though it may be allowed to exercise corporate func

payment of whatever was due and owing to her. The tions within another sovereignty, it is impossible to

testimony showed that the wife of G. knew the money conceive of one joint act, performed simultaneously by

was borrowed from his sister; that it was borrowed two sovereign States, which shall bring a single corpo

for the purpose of building a house on the lot, and that ration into being except it be by compact or treaty.

it was so applied. It also showed that she knew the There may be separate consent given for tbe consolida

money was borrowed on the faith of tbe property. tion of corporations separately created; but when the

Held (1st), that the agreement to give a mortgage, as two unite they severally bring to the new entity the alleged in the bill, was not so satisfactorily established powers and privileges already possessed, and the con

by the proof as to authorize a decree for specific exesolidated company simply exercises in each jurisdiccution; (22) that inasmuch as the money was borrowed tion the powers the corporation there chartered had

for the improvement of the wife's property, with her possessed, and succeeds there to its privileges. It may knowledge, and was so applied, the sister was entitled well happen, as indeed it often has, that the consoli.

to be compensated to the extent of the amount actually dated company will be a corporation possessing in one

abvanced, and the property was answerable therefor, but State very different rights, powers, privileges and im

not for the loss she sustained on the sale of the mortmunities from those possessed in another, and subject

gage. The well-considered cases of Bowie v. Stoneto very different liabilities. Del.Railroad Tax, 18 Wall.

street, 6 Md. 418; Green v. Drummond, 31 id. 71; and 206, 228; Lake Shore, etc., Ry. Co. v. People, supra.

Powell v. Young, 45 id. 494, fully establish that where And after the consolidation each State legislates in re

specific performance cannot be decreed, because of unspect to the road within its own limits, and which was

certainty in the terms of the agreement, insufficiency constructed under its grant of corporate power the

of proof to clearly establish the precise contract alleged same as it did before. Peik v. C. & N. W. Ry. Co., 94

or by reason of the statute of frauds being relied on in U. S. 164. And it cannot follow the new organization defense, a court of equity will, when there is no with its legislation into another) State. Chicago & N. remedy at law, render relief by way of compensation W. R. Co. v. Whitton, 13 Wall. 283. It has been said

to the extent of money actually paid upon the alleged that the consolidated company exists in each State

contract. An unreported case in this court, decided under the laws of that State alone (Miller v. Dows, 94

in July, 1858, Jacob Eackle v. George W. Smith et al., U. S. 444, 447), and this is the effect of the decision in also maintains this doctrine. We agree with the CirDelaware Railroad Tax, 18 Wall. 206, and in many

cuit Court that it is perfectly competent for a husband other cases. It also follows necessarily from the doc- and wife to make a binding agreement for the improvetrine maintained by the Federal Supreme Court in re

ment of the wife's estate; and if it is performed by the spect to the citizenship of corporations. That doc

other party the money actually advanced ought to be trine is that a corporation is deemed to be a citizen of charged to the wife's estate. To justify a court of the State which has created it, and an organization of equity in so charging the estate it is not indispensably members who are citizens of that State. When there

necessary that the intention to charge the separato fore two corporations created in different States con

estate should be evidenced in writing. It may appear solidate, though for most purposes they are not there

aliunde. Koontz v. Nabb, 16 Md. 549; Jackson v. Cole, after to be separately regarded, yet in each State the

29 id. 71. Girault v. Adams. Opinion by Irving. J. consolidated company is deemed to stand in the place

*To appear in 61 Maryland Reports.

CRIMINAL LAW.

IS

PRIVILEGE.—

109 Mass. 449; Mobile R. Co. v. Ashcraft, 48 Ala. 15; Galena R. Co. v. Fay, 16 111. 558; People v. McCrew, 32 Cal. 98; State v. Reed, 62 Me. 129: Martin v. State, 39 Ala. 523. Sup. Ct. Missouri. State v. Walker. Opinion by Sherwood, J. (78 Mo.) [See 28 Eng. Rep. 592; 31 id. 741.-Ed.]

THE COUNSELLOR AND HIS JESTERS.

A SCENE IN COURT. (F. J. Parmenter, Troy Press, June 28, 1884.) A lawyer one day stalking into the court Weighted with precedents, papers and port, Marched up to the table, and casting thereor His burden-or all sare the heaviest one, That would not be laid like the rest at his side, How eager soever the counsellor triedAnd then with the lofty and dignified air That gentlemen placed in such circumstance wear, Proceeded to say to his Honor: “May't please Y'onor!"-but ere he could steady his knees Or hammer his thought into speech, the rude bar Roared with a laughter was echoed afar.

JUROR-EXEMPTION PERSONAL Exemption from jury duty is not a disqualification to act as juryman. It is a personal privilege which may be claimed or waived. This, so far as we know, is the opinion which has always prevailed in this court as a matter of practice, although there is no reported decision. The opinion is however in accordance with the reported decisions of other States. Munroe v. Brigham, 19 Pick. 368; State 7. Forshner, 43 N. H. 89; State v. Wright, 53 Me. 328; Davis v. People, 19 Ill. 74; Murphy v. People, 37 id. 447. Sup. Ct. Rhode Island. State v. O'Brien. Opinion per Curiam. (To appear in 14 R. I. Rep.)

ASSAULT - PISTOL - WILLFUL OR 'ACCIDENTAL EVIDENCE-DOLI CAPAX.- A boy some twelve years of age was indicted for an assault with a pistol. He testified at the trial that he thought the pistol was unloaded when he fired it. Held, that the State in crossexamination could inquire into his knowledge and experience of the weapon and hence could ask him how many times he had fired it before that day. Two other boys testified that the defendant had fired at them the day before the assault charged. Held, that the evidence was admissible as tending to show the assault to be willful, not accidental, and as tending to affect the defendant with knowledge of the criminal nature of his act. Regina v. Dossett, 2 Carr. & K. 306; Rex v. Voke, R. & Ry. 531. We think it was also admissible for the purpose of showing, in connection with the other testimony, that the defendant was doli capax, or had such a knowledge of the nature of the act as would make him criminally responsible. Roscoe 'Crim. Ev. 92-98; Wharton ,Crim. Ev., $ 46; Rex v. Mogg, 4 Carr. & P. 364; Bottomley v. United States, 1 Story, 135, 144. The prosecution called a witness who after stating his acquaintance with the defendant testified that the defendant was an "intelligent boy." Held, that this testimony, though vague and of not much value, was still admissible. A defendant under fourteen years of age is presumably incapable of crime; the presumption is not conclusive unless he is under seven; if over seven his capability when evidence is adduced to prove it becomes a question of fact for the jury. Sup. Ct. Rhode Island. State v. McDonald. Opinion by Durfee, C. J. (To appear in 14 R. I. Rep.)

The judge-if I may be permitted to write Somewhat of his weakness, somewhat of his

mightSo intent to be just, hesitating too long, He oft missed the right through his ear of the

wrong; Endowed with a temper so even 'twould take Earth's aggregate evils its balance to shake; And while too complaisant his foe to offend, Too weak in the back to stand firm by a friend; Poring over all matters with patience and care, Most active, obliging, refined, debonair; Now hearing the hubbub convulsing the court, Nor fully aware what occasioned the sport, Looked up with his pleasantest smile: "Pray pro

ceed, And let there be order in court." The bruis'd reed, Though bent, was not broken; from which you'll

conclude The counsellor, stung by the laughter so rude, Struck back with a vengeance. He possibly might, For he turned not the left cheek when smote on

the right; Yet he did nothing vulgar - unless you should

think Refinement and graces inconsistent with drinkAnd be looked an archangel-aye, “ ruined,” you'll

add, But I cannot subscribe to a judgment so sad, For he had great virtues, and eke was a man, Albeit immoderately fond of the can, Retained our respect even when he had grown So lost to himself as to forfeit his own. His head, in its fine classiq contour sat well On his athletic shoulders; and, quick to repel Any insult or sneer when occasion arose, He spared not his friends, but he tortured his foes. His thin, bloodless face, full of character, drew Attention at once, and your sympathy, too; His greatest tormentor, and weakness--aside From the one I have mentioned - -- was family

pride. He never forgot that ancestral renown More bright from the distance, o'ershadowed his

ATTEMPT TO COMMIT CRIME-LOCUS PENITENTIÆ.— Defendant having made preparations for burning a building, left his supposed accomplice at the building, saying he would go and get some matches, but did not return, and an hour or so afterward was arrested, held, that his failure to return was not proof that he had abandoned his purpose. Anywhere between the conception of the intent and the overt act toward its commission there is room for penitence, and the law in its beneficence extends the hand of forgiveness. But when the evil intent is supplemented by the requisite act toward its commission, the offense is complete. Sup. Ct. Mo. State v. Hayes. Opinion by Philips, Com. (To appear in 78 Mo.)

EVIDENCE-RES GESTÆ.—The moment after a shot was fired resulting in death, defendant's right hand fell to his side and he struck out with his left at the deceased, when a bystander exclaimed, “ Don't strike him, for you have shot him now.Held, that such exclamation was admissible in evidence as part of the res gesta; that it was called out by, and was illustrative of, the affray while still in progress. 1 Wharton Ev., $ 259; Newton v. Ins. Co., 2 Dill. 154; Insurance Co. v. Mosley, 8 Wall. 397 ; Parker v. Steamboat Co.,

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