Imágenes de páginas


of alien parents, during their temporary sojourn in was the proprietor of a hotel in Bellows Falls; that he that city, returned with them the same year to their kept a bar in his hotel, at which intoxicating liquor native country, and always resided there afterward. was sold, and that the defendant Sullivan tended the It was held that she was a citizen of the United bar for him; that Sullivan unlawfully sold said liquor States.

to one Peter Good, who drank such quantities of it After an exhaustive examination of the law, the that he died in consequence thereof. She also offered vice-chancellor said that he entertained no doubt that to prove that said Good was married to one Mary E. every person born within the dominions and allegi- | Marcy in 1854, and that she lived with him as his wife ance of the United States, whatever the situation of till the summer of 1867, when she left him, and at the his parents, was a natural born citizen; and added, time of his death, in 1881, she was living in Worcester. that this was the general understanding of the legal Mass., with another as his wife, between profession, and the universal impression of the public whom the ceremony of marriage was performed in mind. In illustration of this general understanding 1872; that no divorce had been granted to said Good he mentions the fact, that when at an election an in- or his wife; that the said Mary E. was not dependent quiry is made whether the person offering to vote is a on said Good for her support, and that she made citizen or an alien, if he answers that he is a native of no claim on his estate, and none on the defendants; this country the answer is received as conclusive tbat that soon after said Good's wife left him he procured he is a citizen; that no one inquires further; no one this plaintiff, Mary M., then about fourteen years of asks whether his parents were citizens or foreigners; age, to work for him as bis housekeeper; that she lived it is enough that he was born here whatever was the with him as his wife till the time of his death; that at status of his parents. He shows also that legislative that time she was the mother of seven children, and expositions on the subject speak but ove language, and two days after his death she gave birth to an eighth he cites to that effect not only the laws of the United child, and that said Good was the father of said chilStates, but the statutes of a great number of the States dren; that after the birth of the first child the cereand establishes conclusively that there is on this sub- mouy of marriage was performed between the said Good ject a concurrence of legislative declaration with and the said plaintiff, Mary M., aud that she underjudicial opinion, and that both accord with the gen- stood that he had been divorced from his first wife; that eral understanding of the profession and of the pub- said Good acknowledged the seven born previously to lic.

his death to be his children, and furnished a home and Whether it be possible for an alien, who could be support for them; that said Good treated and acnaturalized under our laws, to renounce for his chil- knowledged said plaintiff, Mary M., as his wife in the dren, whilst under the age of majority, the right of community where they lived; that he had supported citizenship, which by those laws he could acquire for her, and would have contined to do so had he lived; them, it is unnecessary to consider, as no such ques- and that she was dependent on him for support. Mary tion is presented here. Nor is the further question E. Good brought her action by her next friend, Mary before us whether, if he cannot become a citizen, he M. Good. In this suit the plaintiff offered to prove subcan, by his act, release any right conferred upon them stantially the same facts that Mary M. did in her suit; by the Constitution.

and that she was the child, about thirteen years old, of, As to the position of the district attorney that the the said Peter and Mary M. Good; that ever after her Restriction Act prevents the re-entry of the petitioner birth said Peter had acknowledged that he was her into the United States, even if he be a citizen, only a father, and treated her as his child, furnished her a word is necessary. The petitioner is the son of a mer- home, supported her, and would have continued to do chant, and not a laborer within the meaning of the so had he lived; and that she was dependent on said act. Being a citizen, the law could uot intend that he Peter for her support. should ever look to the government of a foreign coun

Bridgman & Weston and C. B. Eddy, for plaintiffs. try for permission to return to the United States. And no citizen can be excluded from this country ex

James Barrett and L. M. Reed, for defendants. cept in punishment for crime. Exclusion for any

ROWELL, J. The first point made by the defendother cause is unknown to our laws and beyond the

ant is that the statute* gives a right of action, not to power of Congress. The petitioner must be allowed

one dependent for support on the intoxicated person to land, and it is so ordered.

who dies or is disabled, but to one thus dependent on the person whom the intoxicated person kills or disa

bles; and such is the construction given to a similar CIVIL DAMAGE ACT LEGAL DEPENDENCY

statute in New Hampshire. Hollis v.Davis, 56 N. H.74. ESSENTIAL.

But in Richards v. Moore, heard at the January Term,

1882, in Franklin county, this court held that the statSUPREME COURT OF VERMONT.

ute gave a right of action to one dependeut on the in

toxicated person, and we are not disposed to overrule Good v. Towns.*

that decision. A legal dependency is necessary to constitute a right of action

The next question is, what is the character of the under the statute, R. L., 8 3833, giving an action to one de dependency that gives this right of action? Plaintiffs pendent on a person whose death was caused by intoxi

*"Wien a person, by reason of intoxication, commits or cating liquors illegally furnished; thus, if the action is

causes an injury upon the person or property of another, a brought by oneclaiming to be the widow of such person, person who by himself, cierk or servant, unlawfully sold or it is incumbent on her to prove that her marriage was law- furnished any part of the liquor causing such intoxication, ful; or if by a child, that he was legitimate.

shall be liable to the party injured for the damage occasioned The statute gives the right of action to one dependent on such by the injury so done," etc. “ In case of the death or disaintoxicated person for support.

bility of a person, either from such injury or in consequence

of intoxication from the use of liquors so unlawfully furtember Term, 1882, Wiudham county, Rowell, J.,

nished, a person who is in any manner dependent on such inpresiding. Verdict ordered for the defendants. The jured person for means of support, or a person on whom such plaintiff offered to prove that the defendant Towns injured person is dependent, may recover from the person un

lawfully selling or furnishing any such liquor the damage or * To appear in 56 Vermont Reports.

loss sustained in consequence of such injury." R. L., 2 3833.

contend that a dependency in fact is sufficient, though what class of persons could maintain the action. But it may not be a legal dependency, and that here was a Pollock, C. B., said it was beyond all doubt that in legal dependency in the case of the child at all events. the construction of that act the word "child” meant Defendants, on the other hand, contend that nothing legitimate child only; and a rule for a new trial was short of a dependency that the party depended upon refused. is legally bound to respond to is sufficient, and The result is in both cases, that here was no such dependency as to either plain

Judgment affirmed. tiff.

As to the plaintiff Mary M. Good, it needs no argument to show that Peter Good was under no legal ob

NEW YORK COURT OF APPEALS ABSTRACT. ligation to her to support her. His marriage to her was void; and as between the parties thereto it imposed

WILL--POWER OF SALE-DISCRETION OF EXECUTORS none of the legal obligations of lawful matrimony.

-WHEN COURT WILL NOT CONTROL.- The will of C. di. But as to third persons, a man who marries a woman,

rected and empowered her executors to sell her real and holds her out to the world as his wife, cannot dis

estate "for the best price that cau be obtained for the charge himself from liability for necessaries supplied

same, and at such time or times as shall in their judgher by proving a previous lawful marriage to another

ment be for the best interest of all concerned," and woman still living. Watson v. Threlkeld, 2 Esp. 637 ;

the proceeds were given them in trust for the benefit Robinson v. Nahon, 1 Camp. 245. But he is not liable

of certain beneficiaries. In an action brought about for necessaries furnished her after separation, and

five years after the death of the testatrix, the removal ceasing to hold her out as his wife. Munro v. De Che

of the only executor who qualified, because of alleged mant, 4 Camp. 215. So in Norwood v. Stevenson and

neglect of duty in omitting to comply with his provisWife, cited in a note to Munro v. De Chemant from

ion, the referee found that there had been no demand Andrews, 227, it was held that a plea by the husband

for the property, and its depreciation in value after the tbat "they were never joined in lawful matrimony"

death of the testatrix was due to the state of the real was no bar to an action against him and his wife for

estate market in the place where the property was sither debt contracted when sole, for that a marriage de

uated; that he had made all reasonable efforts to sell, facto made him liable.

without success, and that prior to the trial no offer had As to the plaintiff Mary E. Good, she is an illegiti

been made by any person to purchase. Held, that the mate child of the deceased ; and as to such a child it is

relief sought was properly denied; that while the diclear that the common law imposes no liability on the

rection to sell was imperative, the time of sale was in father as such to support it. But he is liable on his

the discretion of the executor, and his judgment, exexpress promise for its support. He is also liable on

ercised in good faith, was conclusive. The learned his implied promise, without an order of affiliation,

counsel for the appellants calls our attention to Dimes provided he has adopted the child as his own and ac

v. Scott, 4 Russell, 195, as decisive of this question. It quiesced in any particular disposition of it. But he

lacks however an essential element found in the case may renounce the adoption and terminate the implied

before us. In the case cited the executors were diassumpsit. This is the result of the cases, English and

rected by the testator to convert the personal estate American: Hesketh v. Gowing, 5 Esp. 131; Cameron v.

into money and invest the proceeds in a way stated. Baker, 1 C. & P. 268; Nichole v. Allen, 3 id. 36; Furil

The language of the will was imperative. In this the lio v. Crowther, 7 D. & R. 612; Moncrief v. Ely, 19

testatrix, as we have seen, directs her executors to sell Wend. 405. Otherwise than this the father is not lia

the real estate of which she shall die seized, but leaves ble except he be made so by an order of affiliation; and

the time of sale to be determined by their discretion. then his liability is not to the child, but is imposed

This clause cannot be disregarded. In both cases the by way of helping the mother or judemnifying the

intent to have tbe land sold is absolute, but in the town.

latter the testatrix relies upon the judgment of her exIt is true, as contended, that the language of the

ecutor as to the time of sale, aud whatever the court statute is broad, “in any manner dependent;' but af

might think as to the expediency of an immediate ter all, we think it should be construed to mean a legal

sale, or a sale at some fixed time, its opinion cannot

control the discretion of the executor in that respect. dependency ouly, the same as though it read “in any manner legally dependent." If it is given greater

His judgment upon the question is conclusive if exerscope than this there would be great difficulty in ad.

cised in good faith. 1 Story's Eq. Jur. (10th ed.), $$ ministering it. There would seem to be no stopping cox v. Meeker, 95 N. Y. 528.' In view probably of this

169-170 a; Bunner v. Storms, 1 Sandf. Ch. 357; Hanplace short of including all possible cases of actual dependency, whatever the relation of the parties, and

rule the complaint charges such acts and omissions on notwithstanding the absence of even a moral obliga

the part of the acting executor, as would, if true, subtion to support; and yet no one, we presume, would

ject him to the interference of a court of equity. But contend for so latitudinarian a construction of the

the allegations were put in issue, and the trial court statute. Shall we then stop at the utmost limit of

has found not only that they were not proven, but on moral obligations? But the law cannot determine

the contrary that the executor has at all times been wbat a moral obligation is, and takes no cognizance of

ready and willing to sell the property in question at a them. Again by what rule shall damages be as.

fair price, and has taken the usual means, by advertissessed in cases where, as here, no legal right has been

ing and otherwise, to make that disposition kuown. lost?

Haight v. Brisbin. Opiniou by Dauforth, J. This is not a question on which much authority can

[Decided May 9, 1884.] be adduced, but the case of Dickinson v. North-Eastern NEGOTIABLE INSTRUMENT — DIVERSION R. Co., 2 H. & C. 735, is worth referring to. That was MARKET OVERT - CONVERSION PRACTICE an action under the Civil Damage Act of 9 and 10 Vict., FACTS NOT FOUND.-(1) A promissory note made ch. 93, which provides that the action shall be for the by D., payable to his order at defendant's bank, benefit of the wife, husband, parent and child of the was for a valuable consideration indorsed by him and person killed. Price contended that "child,” as used delivered to B., at whose request it was discounted by in the statute, included an illegitimate child; that defendant upon pledge as collateral of a $500 govern. the Legislature intended the right of action to be co- ment bond belonging to plaintiff. At about the matuextensive with the moral obligation to support; and rity of the note defendant, without the consent or that the legal right to support could not be the test of knowledge of B. or plaintiff, upon receipt of a new



note, executed and indorsed by D. for the same do not think the case of Campbell v. Beaumont amount, which contained the statement, “U. S. bond | 91 N. Y. 464, properly considered, at all conflicts with $500 collateral security," and upon payment of the in- our view of the question now presented. In that case, terest cancelled the first note and surrendered it to D. as in this, the intention of the testator was sought Before maturity of the second note D. absconded; it after by an examination of the scope and meaning of not having been paid when due, defendant, without all the provisions of the will, and the first devise was notice to B. or plaintiff, sold the bond in open market, there in terms given for the “sole use benefit" of the appropriating sufficient of the proceeds to pay the primary devisee. In view of that fact, and from the note. In an action for the conversion of the bond, held, indefinite and inconclusive character of the language that defendant was liable; that before retaining the used in framing the provision, which was claimed to bond upon a new contract it should have required the have created a remainder, it was held that it was not consent of B. (2) Much of the argument of the learned the intention of the testator to limit the absolute charcounsel for appellant is founded upon the evidence in acter of the primary devise. See also McLean 5. Freerelation to facts not found by the referee, and as to which man, 70 N. Y. 81; Downing v. Marshall, 23 id. 366. The no finding was requested. In such a case they cannot following additional cases may be cited as supporting be considered for the purpose of reversing the judg- the general principle by which we have been conment. Thompson v. Bank of British North America, trolled. Norris v. Beyea, 13 N. Y. 273; Smith v. Van 82 N. Y.1. With the facts before us found upon suffi- Ostrand, 64 id. 278; Smith v. Bell, Pet. 68, distin. cient evidence (Potter v. Carpenter, 71 N. Y. 75; Stil- guished. Wager v. Wager. Opinion by Ruger, C. J. well v. Mutual Life Ins. Co., 72 id. 385) there is no error

[Decided Jane 3, 1884.] of law in the judgment appealed from. Burnap v. National Bank of Potsdam. Opinion by Danforth, J.



of the Code of Civil Procedure, providing for the subWILL-REPUGNANT CLAUSES-LIMITATION OVER- stitution of the sureties to an undertaking indemnifyDEVISE OF ABSOLUTE ESTATE.-The will of W. gave ing a sheriff against a levy made by him as defendant to his wife the use of $4,000, which was about one-third in an action against him because of such levy, are not of his estate, during life, with privilege in case the in-violative of the constitutional provision, prohibiting come therefrom should not be sufficient to support her the taking away of the private property of a citizen to use sufficient of the principal for that purpose. To without "due process of law." Amendment to U. S. his daughter S. was given the residue of his estate. Const., art. 4; State Const., art. 1, § 6. They simply What remained of the $4,000 at the wife’s death, the change the form of the remedy of the owner of the will, in case of the death of the daugther be- property, which is nevertheless left substantial and ef. fore the death of the wife thus provided : “All the fectual. The power belonging to the State Legislature property, both real and personal, that shall be left by to regulate the civil procedure for the enforcement of my daughter at her death, which shall belong to me at rights authorizes it to say when an officer, acting unmy death, I give, together with what shall remain

der the requirements of that procedure may, and when from the above mentioned $4,000, devise and bequeath he may not, be sued, provided only the citizen is not to my beloved wife, to her use, her heirs and assigns deprived of adequate remedy for any trespass or forever.” The testator's daughter S., which was his wrong. The doctrine of'the Federal courts has gone only child, died before him. Iu an action brought by so far as to hold that a tax may be assessed witbout 10collateral relatives, the heirs and next of kin of the

tice to the property-owner, and collected, although ildeceased for a construction of the will, held, that it legal, and his possible remedy by an action in equity to was the manifest intent of the testator to give to the restrain the collection of the tax was sufficient to save survivor of the two legatees named his entire estate the enactment complained of from the condemnation remaining undisposed of upon the death of the other, of the fundamental law. McMillen v. Anderson, 95 whenever that event should occur; that the gift to U. S. 37. Here a wider and more abundant remedy the wife, in case of her surviving the daughter, was exists, and we do not feel safe or justified in saying not dependent upon the taking effect of the primary that the right to sue a specific individual is a constitugift to the daughter, and while the language employed tional right which cannot be taken away, although adin making the latter gift would generally import an equate and complete protection to the right of propabsolute estate, yet as such a construction would ren erty is left. Foule v. Mann, 53 Iowa, 42; Craig v.Fowder inoperative the limitation over, and would defeat | ler, 59 id. 200; Sunberg v. Babcock, 16 N. W. Rep. 716, the manifest intent as above stated, it was the duty of distinguished. Hein V. Davidson, Opinion by the court to limit so as to render the whole will oper- Fiuch, J. ative and to effectuate the intent, and that therefore [Decided June 3, 1884.) the widow was entitled to the whole estate. It was said by Andrews, J., in Taggart v. Murray, 53 N. Y. 236, “If upon a comparison of the different provisions UNITED STATES SUPREME COURT AB. of a will it is found to contain dispositions which are

STRACT. repugnant to each other, then it is the office of judicial interpretation to preserve, if consistent with the

RAILROAD-RECEIVER-CURRENT EXPENSES-MORTrules of law, the paramount intention of the testator,

.-When a court of chancery, in enas disclosed by the instrument, although in so doing it forcing the rights of mortgage creditors, takes possesmay defeat his purpose in some subordinato and less sion of a mortgaged railroad, and thus deprives the essential particular.” In accordance with this princi- company of the power to receive future earnings, the ple it was held in Terry v. Wiggins, 47 N. Y. 512, where current earnings being used for the benefit of morta will devised to the testator's wife "all ther real and gage creditors before current expenses are paid, the personal estate and effects that I may die possessed of, mortgage security is chargeable in equity with the for her own personal and independent use and main- restoration of the fund thus improperly diverted and tenance, with full power to sell or otherwise dispose of applied to the use of the mortgage creditors. Fosdick the same,” with a devise of the residue after his v. Schall, 99 U. S. 252. We do not now hold any more wife's death, to trustees for purposes named, that the than we did in Fosdick v. Schall, or Huidekoper v. wife took a life estate only with power of disposition, Locomotive Works, 99 U. S. 260, that the income of & and that the last clause created a valid remainder. We railroad in the hands of a receiver, for the benefit of


mortgage creditors who have a lien upon it under in fee of the real property owner by the other party at their mortgage, cau be taken away from them and the time of the decree, in addition to a decree for used to pay the general creditors of the road. All we maintenance under section 497, and that it shall be then decided, and all we now decide is, that if current the duty of the court to enter a decree accordingly, a earnings are used for the benefit of mortgage creditors wife obtaining a decree of divorce in a court of another before current expenses are paid, the mortgage security State, having jurisdiction of the cause and of the is cbargeable in equity with the restoration of the parties, acquires no title in the husband's land in fund which has been thus improperly applied to their Oregon. Bamford v. Bamford, 4 Oreg. 30; Wetmore use. Burnham v. Bowen. Opinion by Waite, C. J. v. Wetmore, 5 id. 469; Hall v. Hall, 9 id. 452: Weiss y. [Decided May 5, 1884.]

Bethel,8 id.522; Oregon Code of Civ.Pro., $$ 376,377,383.

In Barrett v.Barrett, 5 Oreg. 411, the suit was not to asMARRIAGE - DIVORCE — DOWER-LEX REI SITÆ, OREGON CODE, SS 495, 497.-A divorce from the bond

sert a title in real estate, but to enforce,out of the land of matrimony bars the wife's right of dower, unless

fraudulently couveyed by the husband to his daughter, preserved by the lex rei sitie. Barber v. Root, 10 Mass.

payment of the alimony awarded to this appellant by 200; Hood v. Hood, 110 id. 463; Rice v. Lumley, 10

the California decree of divorce, which was held in acOhio St. 596; Lainkin v. Knapp, 20 id. 454; Gould v.

cordance with the decisions of other courts to be so Crow, 57 Mo. 200; 4 Kent Com. 54; 2 Bish. Mar. &

far in the nature of a debt, that the wife might sue the

husband for it in another State, and might contest the Div. (6th ed.), 88 706, 712, and cases cited. In each of the Massachusetts cases just referred to, the divorce

validity of a conveyance of property made by him was obtained in another State. The ground of the de.

with the fraudulent intent of preventing her from recision of the Court of Appeals of New York in Wait

covering the alimony. Barber v. Barber, 21 How. 582; v. Wait, 4 N. Y. 95, by which a wife was held not to be

Livermore v. Boutelle, 11 Gray, 217; Bouslough v. deprived of her right of dower in her husband's real

Bouslough, 68 Penn. St. 495. In De Godey v. De estate by a divorce from the bond of matrimony for

Godey, 39 Cal. 157, and in Whetstone v. Coffey, 48 Tex. nis fault was, that the Legislature of New York, by

269, the point decided was that land acquired by the expressly enacting that “in case of divorce dissolving

husband or the wife during the marriage, the title in

which by the local law vested in neither separately, the marriage contract for the misconduct of the wife, she shall not be endowed," had manifested an inten

but in both in common, continued to belong to both tion that she should retain her right of dower in case

after the divorce, and that a division thereof between of a divorce for the misconduct of the husband. See

them, if not made by the decree of divorce, might be also Reynolds v. Reynolds, 24 Wend. 193. The decis.

obtained by a subsequent suit for partition in the State ions of the Supreme Court of Pennsylvania in Colvin

in which the divorce was granted and the land was . Reed, 55 Penn. St. 375, and in Rcel v. Elder, 62 id.

situated. Barrett v. Failing. Opinion by Gray, J. 308, holding that a wife was not barred of her dower

[Decided May 5, 1884.] in land in Pennsylvania by a divorce obtained by her FRAUD JUDICIAL SALE OBTAINED BY, VOID husband in another State, proceeded upon the ground CREDITORS.-When a scheme is entered into to circuthat in the view of that court, the court which granted | late a fact that a large indebtedness of the succession the divorce had no jurisdiction over the wife. And see to an estate exists in favor of the heirs, being suffiCheely v. Clayton, 110 U. S. 701. Whether a statute of cient to absorb the estate, and being secured by a one State, securing or denying the right of dower in mortgage; to depreciate the value of the estate so that case of divorce, extends to a divorce in a court of the supposed indebtedness would cover it; to put forth another State, having jurisdiction of the cause and of claims to the estate which would complicate the title the parties, depends very much upon the terms of the and affect the salable value of the land ; and to procure statute, and upon its interpretation by the courts of judicial sale by which the title might be cleared of inthe State by the Legislature of which it is passed, and cumbrances, and the land divided among the heirs in which the land is situated. In Mansfield v. Mc- free from liability for the debts of the estate, and the Intyre, 10 Ohio, 27, it was held that a statute of Ohio, sale is so accomplished, the property being appraised which provided that in case of divorce for the fault of by incompetent persons at a grossly inadequate value, the wife she should be barred of her dower, was inap- the sale is in fraud of creditors, and null and void. plicable to a divorce obtained by the husband in The most solemu transactions and judgments may, at another State; and the wife was allowed to recover the instance of the parties, be set aside or rendered dower, upon grounds hardly to be reconciled with the inoperative for fraud. The fact of being a party does later cases in Ohio and elsewhere, as shown by the au- not estop a person from obtaining in a court of equity thorities before referred to. In Harding v. Alden, 9 relief against fraud. It is generally parties that are the Greenl. 140, a wife who had obtained a divorce in victims of fraud. The court of chancery is always

another State recovered dower in Maine under a stat- open to hear complaints against it, whether commit, ute, which upou divorce for adultery of the husbard, ted in pais or in or by means of judicial proceedings.

directed “her dower to be assigned to her in the lands In such cases the court does not act as a court of reof her husband in the same manner as if such husband view, nor does it inquire into any irregularities or was actually dead;" but the point was not argued, errors of proceeding in another court; but it will soruand in the case stated by the parties it was conceded tinize the conduct of the parties, and if it finds that that the demandant was entitled to judgment if she they have been guilty of fraud in obtaining a judghad been legally divorced. The statute of Missouri, ment or decree, it will deprive them of the benefit of which was said in Gould v. Crow, 57 Mo. 205, to ex- it, and of any inequitable advantage which they have tend to divorces obtained in another State, was ex- derived under it. Story's Eq. Jur., $S 1570-1573; Kerr pressed in very general terms: “If any woman be di- on Fraud and Mistake, 352-353. This subject was disvorced from her husband for the fault or misconduct cussed in Gaines v. Fuentes, 92 U. S. 10; and Barrow of such husband, she shall not thereby lose ber dower; v. Hunton, 99 id. 80. In the latter case, speaking of but if the husband be divorced from the wife, for her the proceeding in the Louisiana practice to procure fault or misconduct, she shall not be endowed.” Under nullity of a judgment, we said, “if the proceeding is section 495 of the Oregon Code of Civil Procedure, as merely tantamount to the common-law practice of amended by the statute of December 20, 1865, provide moving to set aside a judgment for irregularity, or to ing, that whenever a marriage shall be declared void or a writ of error, or to a bill of review on appeal, it would dissolved, the party at whose prayer the decree shall belong to the latter category" (that is, a supplemenbe made shall be entitled to an undivided third part | tary proceeding, connected with the original suit),

"and the United States court could not properly en- MUNICIPAL CORPORATION-ORDINANCES- DELEGAtertain jurisdiction of the case. * * * On the other TION OF POWER—LEGISLATIVE ACT-CERTIORARI.—The hand, if the proceedings are tantamount to a bill in city council of Minneapolis has power to make reasonequity to set aside a decree for fraud in the obtaining able regulations as to where, or within what parts of thereof, then they constitute an original and inde- the city, the business of vending, dealing in, or dispospendent proceeding; * * a new case arisinging of spirituous, vinous, fermented, or malt liquors upon new facts, although having relation to the valid.

may be carried on. This is a legislative power, which ity of an actual judgment or decree, etc." In Jack- they must exercise themselves by ordinance passed in son v. Ludeling, 21 Wall. 616, it is said: “A sale may

the manner prescribed by the city charter. They can. have been conducted legally in all its process and not delegate this power to the mayor. A mere legie forms, and yet the purchaser may have been guilty of lative act of municipal corporations cannot be reviewed fraud, or may hold the property as a trustee. In this on certiorari. Cases from New Jersey have been cited case the complainants rely upon no irregularity of as going that far. The courts of that State have probproceeding, upon no absence of form. The forms of ably extended the application of this writ furtber than law were scrupulously observed. But they rely upon

those of any other State; but our attention has pot faithlessness to trusts and common obligations, upou been called to any case, even from that State, which combinations against the policy of the law and fraudu- goes as far as counsel claim. The cases of Camden . lent, and upon confederate and successful efforts to

Mulford and Carron v. Martin, 28 N. J. Law, 49, 594, deprive them wrongfully of property in which they cited by petitioner, do not go to any such length. All had a large interest, for the benefit of persons in whom that was decided in the first case was that an ordinance they had a right to place confidence. Johnson v.

authorizing a new improvement to be made, such as Waters. Opinion by Bradley, J.

opening and paving new streets, and constructing [Decided May 5, 1884. ]

sewers, by which the property of specific individuals may be directly taxed to defray the expense, was a judicial act. In the second case it was merely held

that the Supreme Court had a right to review on cerMINNESOTA SUPREME COURT ABSTRACT

tiorari the proceedings of corporations that do acts af

fecting the rights and property of individuals, which NEGLIGENCE-CAUSING DEATH- PERSONAL REPRE

are judicial or quasi judicial in their nature. Dill SENTATIVE MUST SUE.-The action is brought by a

Mun. Corp., $ 926, is also cited as authority that courts father to recover for the killing, through the alleged

will on certiorari examine the proceedings of munici. negligence of defendant, of his son, a child 17 months

pal corporations, whether legislative or judicial. But old, whereby the plaintiff, as he alleges, has been and

that learned author does not say so. He is simply will be deprived of the services of said son. The stat

stating the rule that certiorari will lie to review the ute provides: “A cause of action arising out of an in

proceedings of such corporations. But that be did jury to the person dies with the person of either

not intend to convey the idea that mere legislative or party." Gen. St. 1878, ch. 77, $1. This is only deola- ministerial acts could be thus reviewed is evident, for ratory of the rule at common law. Insurance Co. v.

at least two reasons: First, not a single autbority Brame, 95 U. S. 754, and cases cited; Carey v. Berk.

cited in support of the text sustains such a proposishire R. Co., 1 Cush. 475. The statute (Gen. St. 1878, S

tion. Second, the author immediately adds, by way 2, ch. 77) creates a cause of action when death is caused

of illustration: “Thus if no appeal or other mode of by the wrongful act or omission of any party, and

review be given, and if there be no statute to the convests it in the personal representative, to wit, the exec

trary, the legality of convictions in municipal courts utor or administrator. No one else can sue upon it.

will be reviewed on certiorari. So under the same cir Nash v. Tousley, 28 Minn. 5. Scheffer v. Minneapolis,

cumstances, and in the same way, the proceedings of etc., R. Co. Opinion by Gilfillan, C. J.

municipal corporations in opening streets, in making [Decided May 31, 1884.]

local assessments, in levying taxes, in contested elecGARNISHMENT-ASSIGNEE IS NOT SUBJECT TO-CUS- tion cases, and the like will be examined and reTODIA LEGIS.—Under our statute, the assignee is not, viewed to ascertain whether they are regular and leby virtue of an assignment, garnishable in a suit gal,” all of which it will be found from an examination against the assignor, unless at the date of service of of the cases cited, have been held to be judicial acts. the garnishee summons he has in his hands or under Matter of Wilson. Opinion by Mitcbell, J. his control property, money, or effects belonging to [Decided June 3, 1884 ) the assignor, or owes the assignor some indebtedness

DAMAGES-CONTRACT-ASSUMING TO ACT AS AGENT absolutely, and without depending on any contin

---IMPROVEMENTS MADE IN GOOD FAITH.-Defendant, gency. Gen. St. 1878, ch. 66., SS 167, 170-172. After the

wrongfully assuming to be the authorized agent of the property, money, or effects are assigned they no longer

real owner, induced the plaintiff to enter into the conbeloug to the assignor, for the assignment passes the

tract of purchase in question. In such cases the ineutire legal and equitable interest therein to the as

jured party has a remedy in the nature of an action signee. Donohue v. Stearns, 17 N. W. Rep. 381. That

on the case against the agent. 2 Kent Comm. *632; the assignment creates no such indebtedness as the

Story Ag., & 264. The pleadings are, we think, sutistatute cited speaks of, on the part of the assignee to

cient to support the action on this ground. The conthe assignor, is apparent. To these statutory grounds tract which is annexed to the complaint shows that defor holding that the assignee is not garnishable is to be

fendant assumed to act as the duly authorized agent added the further insuperable objection, that under

of the owner in making the sale, which is also alleged the assigument the property is in custodia legis, and in the complaint and admitted in the answer; and the therefore not to be reached by levy or garnishment.

complaint also sufficiently shows that plaintiffs were Upon the wbole subject of the non-garnishability of

thereby misled to their damage. It is not material the assignee, we refer to In re Mann, 19 N.W. Rep. 347 ;

that the contract fails to disclose the name of the Legrise v. Pierse (Texas Sup. Ct.), 17 Reporter, 477;

owner. It is clear enough that defendant assumed to Colby v. Coates, 6 Cush. 558; Dewing v. Wentworth,

sell as agent, and not as owner. The plaintiffs took 11 id. 499; Drake Attach., $ 50; Donohue v. Stearns,

nothing by such unauthorized contract; and having supra. Lord v. Meacham. Opinion by Berry, J.

been ejected from the premises at the suit of the [Decided May 1, 1884.]

owner, with the loss of improvements made in good

« AnteriorContinuar »