« AnteriorContinuar »
the risk of accidentally deviating from the road, and vided for by law; nor can it be supposed from the naliable to an action for damages to one injured by rea- ture of the case that the stipulation was intended as son thereof; for the danger thus created may reason- security for any corporate interest of the city. The ably deter prudent persons from using the way, and proviso in the 6th section that the company shall conthus the full enjoyment of it by the public is, in effect, struct such suitable gates at crossings as thereafter as much impeded as in the case of an ordinary nuisance might be required by the common council to afford to a highway. This doctrine has always since been safe access to the lake, clearly designates the inhabitrecognized in England. Hardcastle v. South York- ants of the city as at least within the scope of this shire R. Co., 4 Hurl. & Nor. 67; Hounsell v. Smyth, 7 C. foresight and care, the safety of whose persons and B. (N. S.) 731; Dinks v. South Yorkshire R. Co., 3 B. property was in contemplation. & S. 244.
The prevention of animals from straying upon the It bas also been generally adopted in this country. tracks aud the security of persons and property from Noririch y. Breed, 30 Conn. 535; Beck v. Carter, 68 N. danger are two distinct objects, for both which the Y. 283; 23 Am. Rep. 175: Harmar v. Stanley, 66 Penn. requirement is made of suitable walls, fences or other St. 464; B. & 0. R. R. Co. v. Boteler, 38 Md. 568; Strut- protections; and the ordinance in these two particu: ton v. Staples, 50 Me. 94; Young v. Harvey, 16 Ind. 314; lars is to be referred to distinct legislative grants of Cogswell v. Inhabitants of Lexington, 4 Cush. 307 ; power to the municipal body. The general act to proalthough Howland v. Vincent, 10 Metc. 371, is an ex- vide for the incorporation of cities and villages, which ception.
constitutes the charter of the city of Chicago, confers The enforcement of this rule in regard to excava- upon its city council power: “Twenty-sixth. To retions made by proprietors of lots adjacent to streets quire railroad companies to fence their respective railand public grounds in cities and towns, in the prose- roads, or any portion of the same, and to construct cution of building enterprises, and in the construction cattle-guards, crossings of streets and puplic roads, of permanent areas for cellar ways, is universally re- and keep the same in repair within the limits of the cognized as an obvious and salutary exercise of the corporation. In case any railroad company shall fail common police powers of municipal government; and to comply with any such ordinance, it shall be liable the omission to provide barriers and signals, prescribed for all damages the owner of any cattle or horses or by ordinance in such cases for the safety of individuals domestic animal may sustain by reason of injuries in the use of thoroughfares, is a failure of duty, thereto while on the track of such railroad, in like charged with all the consequences of negligence, in- manner and extent as under the general laws of this cluding tbat of liability for personal injuries, of which State relative to the fencing of railroads." Cothran's it is the responsible cause. The true test is, as said by Rev. St. Ill., 1884, 2:27. By the general law of the Hoar, J., in Alger v. City of Louell, 5 Allen, 402, not State, requiring railroads to be fenced except within whether the dangerous place is outside of the way, or the limits of municipal corporations, the company whether some small slip of ground not included in the omitting performance of the duty is liable to the way must be traversed in reaching the danger, but owner for all damages to animals, irrespective of the whether there is such a risk of a traveller, using ordi- question of negligence. Cotbran's Rev. St. Ill., 1884, vary care in passing along the street, being throwu or 1151. falling into the dangerous place, that a railing is req- Whether this provision is limited to the protection uisite to make the way itself safe and convenient." of animals, and covers only the case of damage done
As the ground of liability in these cases is that of a to them, or whether a failure to comply with the ordipublic puisance, causing special injury, the rule of nance authorized thereby might be considered as evicourse does not apply where the structure complained dence of negligence in case of injury to person or of on the defendant's property, and the mode of its property, in any other case, it is not necessary for us use are authorized by law; and consequently what has now to decide; for in the same section of the statute been said is not supposed to bear directly and strictly there is this additional power conferred upon the city on the question in the present case, but rather as in- council: ducement, showing the ground of legislative authority “Twenty-seventh. To require railroad companies to implied in the ordinance, the breach of which is im- keep flagmen at railroad crossings of streets, and proputed to the defendant as negligence toward the vide protection against injury to persons and property plaintiff, and as serving to interpret the meaning and in the use of such railroads," etc. application of its provisions.
The latter clause of this provision is general and unThe ordinance cannot, we think, be treated as a restricted. It confers plenary power over railroads mere contract between the city, as proprietor of the within the corporate limits, in order that by such reland over which the right of way is granted, and the quirements as in its discretion it may prescribe,and as railroad company, to which no one else is privy, and are within the just limits of police regulation, the muunder which no third person can derive immediately | vicipal authority may provide protection against inany private right, prescribing conditions of the grant, jury to persons and property likely to arise from the to be enforced only by the city itself. Although it use of railroads. And as we have shown by reference takes the form of a contract, provides for its accept- to analogous cases, the erection of a barrier between ance and contemplates a written agreement in execu- the railroad tracks and the public highways and tion of it, it is also primarily a municipal regulation, grounds, particularly such a resort as the Lake Park and as such, being duly authorized by the legislative is shown to be, in the present case, is a reasonable propower of the State, has the force of law within the lim- vision clearly within the limits of such authority. To its of the city. Mason v. Shawneetown, 77 Ill. 533. leave the space between the park and the breakwater,
Neither can the ordinance be limited by construc- traversed by the numerous tracks of the railroad comtion to the mere purpose of preventing animals from pany, open and free, under the circumstances in proof, straying upon or obstructing the tracks; because in was a constant invitation to crowds of men, women addition to that, it expressly declares that the walls, and children frequenting the park to push across the fences or other works required shall be suitable and tracks at all times to the breakwater for recreation sufficient to secure persons and property from danger. and amusement, at the risk of being run dowu by conThis cannot refer to persons and property in course of stantly-passing trains. A fence upon the line betransportation, and already in care of the railroad tween them might have served at least as notice and company as common carrier, for the duty to carry and signal of danger, if not as an obstacle and prevention. deliver them safely was already and otherwise pro- For young children, for whose health and recreation
the park is presumably in part intended, and as irre- the railroad company. Tallman v. Syracuse, Bingham sponsible in mauy cases as the dumb cattle, for whom ton & N. Y. R. Co., 4 Keyes, 128; Brooklyn v. Brooka feuce is admitted to be some protection, such an im- lyn City R. R. Co., 47 N. Y. 475; 7 Am. Rep. 469. pediment to straying might prove of value and im- It is further argued that the directiou of the court portance. The object to be attained-the security of below was right, because the want of a fence could not the persons of the people of the city-was, we think, reasonably be alleged as the cause of the injury. In clearly within the design of the statute and the ordi- the sense of an efficient cause, causa causans, this is nance; and the means required by the latter to be no doubt strictly true; but that is not the sense in adopted by the railroad company was appropriate and which the law uses the term in this conuection. The legitimate. Mayor, etc., of New York v. Williams, 15 question is, was it causa sine qua non, a cause which, N. Y. 502.
if it had not existed, the injury had not taken place, It is said however tbat it does not follow that when- an occasional cause; and that is a question of fact unever a statutory duty is created, any person, who can less the causal connection is evidently not proximate. show that he has sustain injuries from the non-per- Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469. formance of that duty,can maintain an action for dam- The rule laid down by Willes, J., in Daniel v. Metroages against the person on whom the duty is im-politan Ry. Co., L. R. 3, C. P. 216, 222, and approved posed; and we are referred to the case of Atkinson v. by the Exchequer Chamber, L. R., 3 C. P. 591, and by New Castle Water Works Co., L. R., 2 Excheq. Div. the House of Lords, L. R., 5 H. L. 45, was this: “ It is 441; 21 Eng. R. 541, as authority for that proposition, necessary for the plaintiff to establish by evidence cirqualifying as it does the broad doctrine stated by Lord cumstances from which it may fairly be inferred that Campbell in Couch v. Steel, 3 E. & B. 402.
there is reasonable probability that the accident recepting the more limited doctrine admitted in sulted from the want of some precaution which the dethe language of Lord Cairns in the case cited, that fendants might and ought to have resorted to;'' and whether such an action can be maintained must de- in the case of Williams v. Great Western Ry.Co., L. R., pend on the “purview of the Legislature in the par- 2 Exch. 157, where the rule was applied to a similar ticular statute, and the language which they have there case to the present, it was said (p. 162): “There are employed,” we think the right to sue under the cir- many supposable circumstances under which the accicumstances of the present case clearly within its lim- dent may have happened, and which would connect its. In the aualogous case of fences required by the the accident with the neglect. If the child was statute as a protection for animals, an action is given merely wandering about, and he had met with a stile, to the owners for the loss caused by the breach of the he would probably have been turned back; and one at duty. And although in the case of injury to persons, least of the objects for which a gate or stile is reby reason of the same default the failure to fence is quired is to warn people of what is before them and to not, as iu the case of animals, conclusive of the liabil- make them pause before reaching a dangerous place ity, irrespective of negligence, yet an action will lie for like a railroad." the personal injury, and this breach of duty will be The evidence of the circumstances showing neglievidence of negligence. The duty is due, not to the gence on the part of the defendant, which may have city as a municipal body, but to the public, considered been the legal cause of the injury to the plaintiff, acas composed of individual persons; and each person cording to the rule established in Railroad Co. v. Stout, specially injured by the breach of the obligation is en- 17 Wal].657, and Randall v. B. & 0. R. Co., 109 U.S. 478; titled to his individual compensation and to an action should have been submitted to the jury; and for the for its recovery. "The nature of the duty,” said Cooley, error of the Circuit Court in directing a verdict for the J., in Taylor v. L. S. & M. S. Ry. Co., 45 Mich. 74; 40 defendant, the judgment is reversed and a new trial Am. Rep. 457, "and the benefits to be accomplished awarded. through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a
NEW YORK COURT OF APPEALS ABSTRACT. duty imposed wholly or in part for their especial benefit. See also Railroad Co. v. Terhune, 50 Ill. 151; MASTER AND SERVANT-KILLING BRAKEMAN-UNSchmidt v. Milwaukee & St. P. Ry. Co., 23 Wis. 186; SAFE APPLIANCES PROXIMATE CAUSE-SUBMISSION TO Siemers v. Eisen, 54 Cal. 418; Galena & Chicago Union JURY.-Action to recover damages for the death of R. Co. v. Loomis, 13 Ill. 518; 0. & M. R. Co. v. Mc- plaintiff's intestate, a brakeman employed by the deClelland, 25 id. 140; St. L. V. & T. H. R. Co. v. Dunn, fendant, who, seeing the imminence of a collision be78 id. 197; Massoth v. Railroud, 64 N. Y. 521; B. & 0. tween the freight train on which he was employed and R. v. State, 29 Md. 252; Pollock v. Eastern R., 124 Mass. one approaching it from the rear, went out of the 158; Cooley on Torts, 657.
front door of the caboose attached to the end of his It is said however that in the present case the fail- train and attempted to escape, but was caught beure or omission to construct a fence or wall cannot be tween the caboose and the next car and received fatal alleged as negligence against the company, because as injuries. It is claimed that the result was due to the the structure was to be, as described in the ordinance, fact that the “buffer "on the caboose was so much of suitable materials and sightly appearance, and of lower than that of the preceding car that the caboose such height as the common council might direct, no was driven under the bumper block of the car ahead, duty could arise until after the council had directed and thus the theory of the action was that the cars the character of the work to be constructed, of which and appliances furnished the deceased by the defend no proof was offered. But the obligation of the com- ant were unsafe and unsuitable, and that this act conpany was not conditioned on any previous directions stituted negligence that would authorize recovery. to be given by the city council. It was absolute to Held, that it was the duty of the defendant to provide build a suitable wall, fence or other sufficient work as a car properly fitted, not only with running apparawould prevent animals from straying upon the tracks tus-as wheels,stopping apparatus, as a brake-but with and secure persons and property from danger. The buffers of some kind, to protect the car and its serright of the council was to give specific directions if it vants, necessarily or lawfully thereon, from the effect saw proper, and to supervise the work when done, if
of a collision. Ordinary and usual care in the equip• necessary; but it was matter of discretion, and they
ment and running of a road requires this last appliwere not required to act in the first instance, por at ance or some equivalent contrivance as much as it does all, if they were satisfied with the work as executed by either of the others. There was in effect no buffer nor
any thing to take its place on the car upou which the ther saw the child nor heard the call of the by-standers, intestate was employed. Upon the evidence it may be nor knew of the accident until he was stopped by the said that its absence was the proximate cause of in- officer. His conduct was sufficient to justify the conjury; it was literally the causa causans. The death of clusion of the jury that he failed in both particulars, the decedent was therefore caused by the omission of because he was unobservant, and the learned trial the defendant to place buffers where they belonged. judge committed no error in charging them, to say For any useful or usual purpose the ones in question whether, under all the circumstances surrounding the might as well have been placed on the top or at the transaction, he was negligent in not discovering the sides of the car as where they were. If we assume child in time to prevent the injury. Barker v. Sav. with the defendant that the persons in charge of the age, 45 N. Y. 194. Murphy v. Orr. Opinion by Dansecond train were negligent, or wrong-doers, still the forth, J. primary or essential cause of the injury was the negli- [Decided April 29, 1884.] gence of the defendant itself, and it is not competent for it to say that it is absolved from the consequences
NEGLIGENCE-INJURY TO CONVICT-STATE NOT LIAof its wrongful act by what those persons did. It is
BLE-RESPONDEAT SUPERIOR.-The claimant Lewis, an euough however if its fault or omission merely con
inmate of the Elmira Reformatory, and while engaged tributed to produce the injury complained of, or if it
in carrying molten iron in a ladle discovered a crack failed to exercise the care of an ordinarily prudent
in the sbank which connected the bowl with the ban
dle. He called the overseer's attention to the defect, person in supplying cars reasonably safe for the purpose for which they were required.
but no attention was paid to his complaint, and when aspect of the case there was evidence upon these ques
next used by him the bowl separated from the shank, tions which should have been submitted to the jury.
and the melted iron coming in contact with irou on Canfield v. B. &0. R. Co., 93 N. Y. 532; 45 Am. Rep.
the floor exploded with such effect as to cause him se268; Dana v. N. Y. C. R. Co., 92 N. Y. 639; Sheehan
rious injury. After his discharge he presented a claim
to the board of audit, and his claim was transferred to v. Same, 91 id. 332; Darkin v. Shoup, 88 id. 225; Booth v. B. & A. R. Co., 73 id. 38; 29 Am. Rep. 97; Plank v.
the board of claims (Laws of 1883, ch. 205, § 12), and N. Y. C. & H. R. Co., 60 N. Y. 607; Flike v. B. &. A.
tbere disinissed, on the ground that the facts were not
sufficient to constitute a cause of action against the R. Co., 53 id. 550; 13 Am. Rep. 515. Ellis v. New York,
State. Lake Erie, etc. Opiniou by Danforth, J.
On appeal to the court, held, that upou no
principle of law, nor of any adjudged case can the doc[Decided April 15, 1884.)
trine of respondeat superior be made applicable to the WILL-UNDUE INFLUENCE-QUESTION OF FACT-NOT State, except when it has through its Legislature volREVIEWABLE HERE.—The deceased was seventy-two untarily assumed it. The contrary is well settled years of age at the time of his death, and had been a upon grounds of public policy, and the doctrine is so man of great bodily vigor and sound mind. Two uniformly asserted by writers of approved authority days before its execution he had been attacked with and the courts, that fresh discussion would be superinflammation of the bowels, and expressed his belief fluous. Story on Agency, $ 329, 7th ed. The claimant that "it was his last call." He lived five days after was not a voluntary servant for hire and reward, nor the will was executed. The chief grounds urged was the State his master in any ordinary sense. The against the probate of the will was the relation exist- decision of the board of claims is affirmed. Lewis y. ing between the deceased and John Foley, who for a State. Opinion by Danforth, J. long time had been his legal counsellor and adviser,
[Decided May 6, 1883.] and who was made a donee of nearly half of the estate, which amounted to nearly $70.000 or $80,000. Foley did not draw the will, but gave instructions to the per
UNITED STATES SUPREME COURT ABson who did draw it. It does not appear what these
STRACT. instructions were. The deceased left him surviving a widow, married some two years before his death, to DAMAGES-BREACH OF CONTRACT-FRAUD AND DEwhom he left a legacy of $8,000, and brothers and sis- CEIT-EXCEPTION TO CHARGE.-A manufacturer havters, and children of deceased brothers and sisters, to ing contracted to limit his sales within a certain numsome of whom he left small legacies, and to others ber of tous in order to maintain the high price of steel none at all. Foley was not present when the will was is not responsible for a reduction in the market price executed, and so far as appears he did not see the in- occasioned by causes other than his selling more than strument before his death, and never conversed with what he had agreed to sell. Where a person is induced the deceased ou the subject, and that it does not ap- by false representations to buy an article, at an agreed pear that the deceased was in any respect under his in- price, to be delivered on his future order, he can recover fluence. Held, that the facts might lead to contradict- as damages for the deceit the diminution caused ory inferences and point to hostile conclusions. Upon thereby in the market price at the time of delivery. them the surrogate decides in favor of the will. The Where a charge embraces several distinct propositions General Term, wbich might have sent the case to a a general exception is of no effect if any one of them is jury if doubtful about it, has affirmed the decision. correct. Lincoln v. Claflin, 7 Wall. 132, 139. Cooper v The question is wholly one of fact, beyond our reach. Schlesinger. Opinion by Blatchford, J. Matter of Ross, 87 N. Y. 514; Marx v. McGlynn, 88 id. [Decided March 31, 1884.) 357. Matter of Darrow's Will. Opinion by Finch, J.
LIMITATIONS-UNDISCLOSED PRINCIPAL-TRUST.-If [Decided April 15, 1884.)
a cause of action against an agent whose principal is NEGLIGENCE-DRIVING OF TEAM-RUNNING OVER undisclosed is barred by the statute of limitations, and CHILD-QUESTION FOR JURY.-Whoever drives horses the principal be afterward discovered, an action canalong the streets of a city is bound to anticipate that not be maintained against him. Certain shares of travellers on foot may be at the crossing, and must stock were placed in the hands of a debtor as a fund take reasonable care not to injure them. He is negli. for the payment of his debt, but it was shown that the gent whenever he fails to look out for them, or when intention was that they were merely intended as in. he sees and does not so far as in his power avoid them. demnity to bim. Held, that no trust was created in The evidence is sufficient to show that if the driver favor of the creditor. Ware v. Galveston City Co. had looked he would have seeu the child in season to Opinion by Matthews, J. avoid him. His owu testimony is that he nei- [Decided March 31, 1884.]
MISTAKE ASSUMPTION CLAUSE INSERTED Gee v. Bolton, 17 id. 604. Thus construed, it is apGRANTEE RELEASED BY GRANTOR-BONA FIDE PUR- parent that the power given by the instrument was CHASER OF MORTGAGE NOTES TAKES SUBJECT TO EQUI- fully exercised and exhausted by the mutual conveyTIES. - Where in a recorded deed of land subject to a ance made in 1866 for the express purpose of such parmortgage, an agreement of the grantee to assume aud tition. The partition of the lauds having thus been pay it is inserted by mistake of the scrivener and made by virtue of the power of attorney, and that beagainst the intention of the parties, and on the discov- ing the sole purpose and object of the power, it is eriery of the mistake the grantor releases the grantee dent that any subsequent attempt by the attorney to from all liability under the agreement, a court of convey the land for his own private benefit would be equity will not enforce the agreement at the suit of wholly unauthorized and necessarily treated as a nul. one who, in ignorance of the agreement, and before lity in ejectment. Campbell v. Campbell, 57 Wis. 288; the execution of the release, purchases the notes se- 15 N. W. Rep. 138; Meade v. Brothers, 28 Wis. 689. (3) cured by the mortgage, although the grantee, after the A party who conveys land by a deed containing wardeed of conveyance to him, paid interest accruing on ranties of title, and to defend the same from the law. the notes. The appellee, by her purchase of the notes ful claims of all persons, is estopped from setting up secured by the second mortgage, doubtless acquired against his grantee, or those claiming under him, any all the rights of the mortgagee. New Orleans Canal Co. after-acquired title to the same land. Such title inuresv. Montgomery, 95 U. S. 16; Swift v. Smith, 102 id. eo instanti by way of estoppel to the use and benefit of 442. But haring purchased in ignorance of the sup- the grantee. Rogers v. Cross, 3 Pin. 36; Wiesner v. posed agreement of Drury in the deed of conveyance Zanni, 39 Wis. 188; House v. McCormick, 57 N. Y. 310. from Daggett to him, and having done nothing upon (4) In case of voluntary partition between joint tenthe faith of that agreement, she has no greater right ants or tenants in common by mutual conveyauces, by estoppel against Drury than the mortgagee had. their right to recompense in case of loss depends The mortgagee had no part in obtaining, and paid no solely upon the covenants contained in the deed, consideration for that agreement, and upon the most and not upon any implied warranty. Weiser v. favorable construction had no greater right under it Weiser, 5 Watts, 279. Rountree v. Davidson. Opinthan Daggett, with whom it purported to have been ion by Cassoday, made. On the facts of this case, Daggett, in a court [Decided Feb. 19, 1884.) of equity at least, never had any right to enforce that agreement against Drury. The payment of interest
SCHOOL-CONTRACT-BOARD TO MAKE-NOT INDIVIDon the mortgage notes would naturally be made by
UAL MEMBER.– Where wood is bought under con Drury to prevent a foreclosure of the mortgage on his
tract for use of the district, the basis of an order for land, and cannot be held to be an affirmance of an
payment is the ascertainment of the fulfillment of the agreement of which he had no actual knowledge. The contract by the district board. The county treasurer, clause containing the agreement being conclusively
as one of the board, has the legal right to know if the proved to have been inserted in the deed by mistake
contract has been complied with before paying for the of the scrivener, without the knowledge and against
The law requires the action of all memthe intention of the parties, a court of equity, upon a
bers if present, and all must be notified to be present. bill filed by Drury for the purpose, would have decreed
Church of New Loudon v. Vandusen, 37 Wis. 54. a reformation of the deed by striking out that clause.
Every thing that was done by the clerk or director in Elliott v. Sackett, 108 U. S. 133. The release executed
acceptance of the wood, if any thing was done to that by Daggett to Drury has the same effect, and no more.
effect, was by their individual and separate action. Drury v. Hayden. Opiniou by Gray, J.
The order was drawn and signed by the clerk, aud [Decided April 7, 1884.]
then carried to the director, who was elsewhere, to be countersigned by him. The defendant was never con
sulted on the subject or notified of any action by the WISCONSIN SUPREME COURT ABSTRACT.
board or any of its members in reference to the mat
ter. He had a legal right to be consulted about the EJECTMENT--RECOVER OY OWN TITLE-POWER OF
acceptance of the wood, for he was as much responsi
ble in relation to it as the other two members of the ATTORNEY-GENERAL POWER FOR PARTICULAR PUR
board. He knew that the order had been issued unPOSE - ESTOPPEL - AFTER-ACQUIRED TITLE - JOINT
lawfully, and he bad a right to refuse to honor it Doyle TENANTS--PARTITION-COVENANTS IN DEED. - (1) In an action of ejectment the plaintiff must recover on
v. Gill. Opinion by Orton, J. (20 Eng. Rep. 522.
ED.) the strength of his own title, and not on the weakness of the defendant's title. Gardiner v. Tisdale, 2 Wis.
[Decided Feb. 19, 1884.] 152. (2) The power of attorney herein to “accept ser- LIFE TENANT-WHEN NOT WASTE TO CUT TIMBER.vice or convey land, or do any other thing necessary
This action was brought to restrain defendant, widow, for procuring partition of the same," does not author
from committing waste by cutting and selling timber ize the conveying of the land for any other purpose. from the homestead occupied by her as, and to recover The rule is universal “that when there is a power of damages for what she had already cut. The lands in attorney to do a particular act followed by general question were not disposed of by the testator's will. words, these general words are not to be extended be
In some of tbe States the widow is not dowable of yond what is necessary for doing that particular act
land in a wild state, unconnected with any cultivated for which the power of attorney is given.” This is the
farm or occupied lands. Connor v. Shepherd, 15 Mass. language of Lord Campbell in Perry v. Holl, 2 De 161; White v. Cutler, 17 Pick. 248; Clark v. Holden, 7 Gex, F. & J. 48. To the same effect are Esdaile v. La
Gray, 8; Johnson v. Perley, 2 N. H. 56; Chase v. HaNauze, 1 Younge & C. 394; Attwood v. Munnings, ñ gelton, 7 id. 171; Dickinson v. Jones, 36 Ga. 97. In our Barn. & C. 278; and many other cases which might be State the widow every deceased person is entitled cited. In this last case it was held by the King's
to a dower, or use for her natural life, of one-third Bench “that the general words in the power of attor- part of all the lands whereof her husband was seised ney were not to be construed at large, but as giving of an estate of inheritance at any time during the margeneral powers for the carrying into effect the special riage, unless she is lawfully barred thereof, eto. Seopurposes for which they were given." These cases are
tion 2159, Rev. Stat. As the deceased left a widow in harmony with the decisions of this court. Chilton
and issue, his homestead descended to his widow durv. Willford, 2 Wis. 1; Dodge v. Hopkins, 14 id. 630;
ing her widowhood, and upon her marriage or death,
to his heirs. Section 2271, Rev. Stat. For the pur- execution and delivery of the deed. Had the title poses of this case, the widow may be regarded as the been made in fee simple to the father, and had he then life tenant of the lands in question. In some States executed a transfer to his daughter, there would be where wild land is connected with and included in force in the position that a further act, by delivery, or the lands assigned to the widow as dower, she is only at least by putting on record such transfer, would be entitled to cut such wood and timber as may be neces- necessary to complete the daughter's title. But here sary for the supply of the dower estate, to be actually everything was done which was uecessary to be done used and consumed thereon, or for purposes connected in order to vest the fee simple title of the grantor in with the proper occupation and enjoyment thereof. the daughter; surely the father could not divest the White v. Willis, 7 Pick. 143; White v. Butler, supra; title of his daughter by any act of his. His gift was of the Miller F. Shields, 55 Ind. 71; Cannon v. Barry, 57 Miss. money which paid for the land, and when it was paid 289; Parkins v. Coxe, 2 Hayw. 339. It has been sub- the gift was consummated and irrevocable. How then stantially held in many States, and we are inclined to could he become clothed with his daughter's fee-simhold the rule to be substantially correct, that it is not ple estate? Not by way of resulting trust, because waste for the life tenant to cut down wood or timber, that would not arise upon a mere presumption as in 80 as to fit the land for cultivation or pasture, pro- the case of a stranger. Not by adverse possession, beFided this does not damage or diminish the value of cause the possession was not adverse, but in accordthe inheritance, and is conformable to the rules of ance with the title. Not upon the theory of an uncongood husbandry; and this is so, even where the wood summated gift, because the father never owned the or timber so cut is sold, used, or consumed off the land, and never assumed to convey it, and there was premises. Keeler v. Eastman, 11 Vt. 293; Alexander no such thing as an imcomplete conveyance in the case. v. Fisher, 7 Ala. (N. S.) 514; Hastings v. Crunckleton, His gift was of money, and that was completed. 3 Yeates, 261; Givens v. McCalmont, 4 Watts, 460; Wheeler v. Kidder. Opinion by Green, J. Williard v. Williard, 56 Penn.St. 119; Drown v. Smith, [Decided Feb. 18, 1884.] 52 Me. 141; Davis v. Gilliam, 5 Ired. Eq. 308; Owen v. Hyde, 6 Yerg. 334; Findlay v. Smith, 6 Munf. 148; Ap
RECENT ENGLISH DECISIONS. peal of Campbell, 2 Doug. (Mich.) 141; Jackson v. Brownson, 7 Johns. 227; Van Deusen v. Young, 29 N.
CORPORATION-COSTS OF FORMATION WHEN NOT Y. 30; Allen v. McCoy, 8 Ohio, 418; Crockett v. Crock
LIABLE TO ATTORNEY.-A company was formed for ett, 2 Ohio St.
the purpose of purchasing M.'s business, and the artithe question of waste depended some the
cles provided that all expenses incurred about the forproportion of woodland to the cultivated land. mation of the company should be paid by the company. Owen v.
Hyde, supra; Findley Smith, M. had employed P. as his solicitor in the formation supra ; Drawn v. Smith, supra; Hastings v. Crunck- of the company, and after its formation he acted as its letou, supra. So it has been held that
solicitor, M. being one of the directors. At a meeting may cut and sell timber sufficient to raise the of the directors, M. being present, P. asked that his amount of money necessary to pay the taxes already costs might be paid, and the chairman said they were due upon the laud. Crockett v. Crockett, supra. Of all agreed that the company would pay these costs; but course she had no right to injure or depreciate the nothing concerning this appeared on the minutes. At value of the inheritance, for that belonged to the re- a later meeting a resolution was passed on the propomaiuder-men. Robinson v. Kime, 70 N. Y. 151. sal of M. that a check should be given to P. to disWilkinson v. W inson. Opinion by Cassoday, J. charge a certain part of these costs. The company being [Decided Feb. 19, 1884.]
afterward wound up, P. carried in a claim for his bill of costs, but the taxing master disallowed all items in
curred before the formation of the company. Bacon, PENNSYLVANIA SUPREME COURT
V. C., affirmed his decision. Held, that P., having ABSTRACT.
been retained by M., the company were not bound to LIMITATION-CLAIM OF ATTORNEY.-The claim of an
pay for his services, though they had had the benefit
of them. Held, also that there was not evidence of an attorney for professional services rendered in an action pending at the death of the client becomes due at such
agreement by the company to pay P. Lindley, L. J.,
said: “If he had brought this action against the comtime, and consequently the statute of limitations commences to run from that date. MoClintock's Appeal,
pany with no materials except proof that he had done
the business and the provisions in the articles he could 5 Casey, 360; MoCandless' Estate, 11 P. F. Sunith, 9,
not bave succeeded. This is shown by many cases, and Campbell v. Fleming, 13 id. 242. The statute will not operate as a bar in proceedings in the Orphan among which I may refer to Eley v. Positive GovernCourt for the distribution of a decedent's estate. This (N. S.) 190 ; 1 Ex. Div. 20, 88, where it was held that
ment Security Life Assurance Company, 34 L. T. Rep. is not so in actions at law. In the latter case it acts on
articles of association do not constitute a contract bethe remedy and takes away the right of action unless suit is brought within the time limited by the statute;
tween the company and an outsider. A provision in but it does not extinguish the debt nor affect the trust
act of Parliament may enable an outsider to sue. There
is in such a case a statutory obligation of which the created for its payment as long as the trust subsists.
person named can take the benefit, an action for debt Campbell v. Maple. Opinion by Sterrett, J. (See 6 Am. Rep. 90; 26 Eng. R. 52; id. 326 ; 7 Allen, 274; 55
on a statute being a well-known old form of action at Penn. St. 434.-ED.]
common law; but an agreement between A. & B. that
B. shall pay C. gives C. no right of action against B. (Decided Feb., 1884.]
I cannot see that there is in such a case any difference GIFT-PARENT TO CHILD-RESULTING TRUST.-A. between equity and common law, it is a mere question purchased real estate, and had the deed from the of contract. It is eaid that Mr. Pease has an equity grantor drawn so as to pass the absolute title to his against the company because the company has had the daughter B., with the reservation of the use of the benefit of his labor. What does that mean? If I orpremises to himself during the minority of B. Held, der a coat and receive it, I get the benefit of the labor that the delivery of this deed to A. was sufficient to of the cloth manufacturer; but does any one dream pass the fee to B. We cannot regard the transaction that I am under any liability to him? It is a mere as inchoate as between the father and daughter. It was fallacy to say that because a person gets the benefit of completed entirely when the land was conveyed by the work done by somebody else he is liable to pay the