Imágenes de páginas


Clabaugh, 1 Gilm. 26. And to the same effect is Mo 6 Mass. 37; Hall v. Cushing, 9 Pick. 395; Towne v. Cready

v. Sexton, 29 Iowa, 356. A party applying for Ammidown, 20 id. 535, 540; State v. Nichols, 10 Gil. & a mandamus must show a clear, legal right to have the J. 27; Lansing v. Lansing, 45 Barb. 182; Sheet's thing sought by it to be done, and if the granting of Estate, 52 Penn. St. 257. We think, on the authority the writ will do the party applying for it no good it of these cases, that Angell cannot be held to have diswill be refused. People v. Chicago & Alton R.Co., 55 Ill. charged himself from his liability as executor for the 95; Commissioners of Highways v. Bonker, 66 id. 339; $3,000, for the direction of the that he shall inPeople v. City of Elgin, id. 507; People v. Klokke, 92 id. vest it in his name as executor, which clearly imports 134; People ex rel. v. Dulaney, 96 id. 503; People ex rel. that at least until such investment he shall hold it as V. Johnson, 100 id. 637. And so the question of the executor. And see particularly Hall v.Cushivg, supra. sufficiency of the deed to convey the title, when made The only reason for doubt on this point which we see is as asked, would always be a pertinent question in such that the bequest is in the outset directly to Angell; cases. We think it is contrary to the policy of the law but notwithstanding this, we think it is clear that Anthat mandamus should issue where its sole purpose gell was intended to take simply as executor, for he and effect is, as it is here, to relieve from the conse- is directed to invest the $3,000 in his name as executor quences of the mistakes or omissions of the party ap- and to pay the interest to Fiske for life, and after the plying for it. Klokke v. Stanley. Opinion by Schol- decease of Fiske the principal is given, regardless of field, J.

the bequest to Angell, directly to the remainder-men. The testator merely does by express beguest what the

law would have done had he omitted it, namely, gives RHODE ISLAND SUPREME COURT

the money to the executor for the purposes of the will. ABSTRACT.*

If this be so the defendants are of course liable on the

bond. Elliott v. Sparrell, 114 Mass. 404; Sanford v. WILL-LEGACY-EXECUTOR OR TRUSTEE-RESIGNA- Gilman, 44 Conn. 461. We do not think their liability TION — BREACH OF BOND. - A legacy was given was affected by the “charging off.” It was no part of to A., wbo was also named executor, “to be the duty of the Probate Court to allow it. Arnold v. by him

invested in his name as executor of Smith, 14 R. I. . The “charging off" amounted to my estate, and the interest that may

nothing, even on the face of the account, for it simply mulate thereon to be paid by him to F.

showed the money still in the hands of the executor, during the term of his natural life," with remainder without showing any right in him to have it except as over. The executor's bond was conditioned “ well executor. This was therefore a manifest mistake, and and truly to administer" the personal estate of the the court afterward rightly corrected it. And see testator which should come into his hands “according United States v. Parker, 2 McArthur, 444. Indeed the to law and the provisions of said will.” A. never in- defendant, Angell, has himself admitted the propriety vested the legacy in his name as executor, but used it of the correction by paying the $3,000 over to the adin his business without objection from F., who duly ministrator de bonis non, with the will annexed. Proreceived the interest. A. in his first account to the bate Court of Scitrate v. Angell. Opinion by Durfee, Probate Court charged off the legacy as having been C. J. paid to himself. This was allowed, but the court sub

CREDITOR'S BILL-JUDGMENT MUST BE FIRST OBsequently revoked the allowance, and required A. to recharge himself with the amount as executor. A. af

TAINED-RETURN OF EXECUTION.-(1) It is a general terward resigned, settled his account, and turned over

rule that a creditor's bill cannot be maintained until the legacy to an administrator, with the will annexed.

judgment has been obtained at law and execution has

issued and been unsatisfied, the reasons being that In an action on A.'s bond as executor, in which the pleadings raised the one question of whether there had legal claims should be first adjudicated in courts of

law, the tribunals in which such claims are properly been a breach of the conditions of the bond. Held, that A. took the legacy as executor, not as trustee.

cognizable, and that the legal remedies should first be

exhausted. The bill before us does not set forth that The law in this particular is excellently elucidated by Chief Justice Shaw in Newcomb v. Wil

judgment at law has been obtained by the complainliams, 9 Meto. 525. When personal estate is be

ant, and that execution has issued and been returned queathed in trust to some person other than the exec

unsatisfied, nor any sufficient reason for the absence utor, the executor remains liable for it on his bond

of those averments. In Merchants' National Bank v. until he turns it over to the trustee. When the be

Paine, 13 R. I. 592, a debtor had absconded, without quest is to the executor himself, then it is sometimes

leaving legal assets which could be attached, so that difficult to say, especially if the bequest be pecuniary,

no judgment at law could be obtained against him. It when the executor ceases to be an executor and begins against his equitable assets to satisfy their legal

was held that his creditors were entitled to proceed to be a trustee. It is settled however that the change claims. The doctrines of that case are as applicable to must be evinced by some open and notorius act, and

a non-resident debtor, having no legal assets within can not be effected by a mere mental determination; and in Massachusetts, where trustees are required to

the State, and on whom service of legal process cannot give bond before assuming the trust, it is held that

be made for the purpose of bringing suit and obtainthe executor will remain liable as executor until be

ing judginent at law as to an absconding debtor. Scott gives bond as trustee. Dorr v. Wainwright, 13 Pick.

v. McMillen, 1 Litt. 302, 305; Kipper v. Glancey, 2

Blackf. 356, 357, 358; Peay V. Morrison's Exrs., 10 328; Prior v. Talbot, 10 Cush. 1; Miller and Wife v. Congdon, 14 Gray, 114; Probate Court of Newport v.

Grat. 149, 157, 158. (2) Mere insolvency therefore does Hazard, 13 R. I. 1; Depeyster v. Clendining, 8 Paige,

not dispense with the necessity of obtaining a judg295, 310. It has also been held that a trust, if not ex

ment before a resort to equity. Whether or not it will pressly created, will not necessarily be implied, be

dispense with the necessity for the issue and return of

an execution is a question upon which the cases are cause the will imposes duties different from what are ordinarily required of executors, but the duties will

conflicting. The affirmative is held by Tabb v. Wilbe regarded as duties superadded by the will, and the

liams, 4 Jones Eq. 352, 353; Turner v. Adams, 46 Mo. executor and his sureties will be liable on their bond

95, 99; MoDowell v. Cochran, 11 Ill. 31, 33; Postlewait for the performance of them. Saunderson v. Stearns,

v. Howes, 3 Iowa, 366, 383. The negative by Brinker

hoff v. Brown, 4 Johns. Ch. 671, 687; McElwain v. *To appear in 14 Rhode Island Reports.

Willis, 9 Wend. 548, 560, 566; Screven v. Bostick, 2

Bon, J.



McCord Ch. 410, 416. Parish v. Lewis, 1 Freem. when so applied than when it is applied to a grant of Miss.) 299, 306. Ginn v. Brown. Opinion by Matte- realty. But the deed contains no such language; on

the contrary, the settler claims in the preamble of the PLEADING-COMPLAINT FOUNDED ON STATUTE-AL

deed, as his reason for making it, that he has "certain LEGATIONS. When a new right of action is given by stat

property, real and personal, which he is desirous of ute subject to a condition it is incumbent on the plaintiff having conveyed in trust for the sole benefit and use suing under the statute to allege the fulfillment of the

of himself." Therefore “in a case like the present, condition, and to prove it if denied. 1 Chitty Plead. *386:

to use the language of Judge Bigelow in Hall s. Priest, Drowne v. Stimpson, 2 Mass. 441, 444; Williams v.

6 Gray, 18, 22, "where personal and real estate are Hingham, etc., Turnpike, 4 Pick. 341, 345; Inhabitants given in the same clause and in the same words, and of Bath v. Ivhabitauts of Freeport, 5 Mass. 325;

there is nothing to indicate a different intent in reBrown v. Adams, 1 Stew. 51; Greer v. Bumpass, Mart. lation to the personal from that manifested respecting & Y. 94; Bayard v. Smith, i7 Wend. 88. “It is a uni- the real estate, we are of opinion that the words are to form rule of law,” said Parsons, C. J., in Drowne v.

be construed in the same manner as applicable to both Stimson, 2 Mass. 441, 444, “ that'when a statute gives species of property." Our decision is that it is the a remedy under particular circumstances, the party duty of the trustce to transfer the personal property seeking this remedy should in his plaint or informa

to the administrator, to be administered and distribtion allege all the facts necessary to bring him within uted by him according to law, as the personal estate of the statute." Baker & Slater Mill and Power Co. July

his intestate. Taylor v. Lindsay. Opinion by Durfee, 5, 1884. Opinion by Durfee, C. J.


PARTNERSHIP - ASSIGNMENT BY ONE PARTNER PERSONAL.-L. conveyed certain property, real and

– We think it is well estabpersonal, in trust to pay his debts from the income, if lished now that one of two or more co-partners bas no sufficient; if otherwise, from the principal, and there- authority simply as such to assign the entire partnership after to pay the income to himself or order for his effects to a trustee for the payment of the partnersbip benefit or his family's, and if the trustee should think creditors without the consent of his co-partners it more needed for Li's comfort, to pay to L. or order they are present or at hand where they can be consuch amounts, not to exceed one-half of the principal,

sulted. Ormsbee v. Davis, 5 R. I. 446; Welles F. as the trustee thought proper. The preamble of the March, 30 N. Y. 344; Deming v. Colt, 3 Sandf. 284, 22; deed stated that L. had “certain property, real and

Fisher v. Murray, 1 E. D. Smith, 341; Kirby v. Inger. personal, which he is desirous of having conveyed in soll, 1 Doug. (Mich.) 477, 490: Hughes v. Ellison, 5 Mo. trust for the sole benefit and use of himself." The 463; Bull v. Harris, 18 B. Mon, 195, 199. But on the deed further provided, “and in case of the decease other hand, if the other partners be not present, or of L. this trust is to terminate, and the said property where they can be consulted, we think it established remaining in the hands of the trustee to be conveyed that an assignment of the partnership effects to a trusas he shall by his last will and testament direct,and in

tee for the partnership creditors is valid without their default thereof to his heirs at law.” L. died intestate, consent, if made by the partner in charge in good leaving a widow and a daughter. Held, that accord | faith, to meet a crisis or exigency of the business, and ing to the former decisions of this court L. took under

that it is none the less valid for being made in the the trust deed an equitable fee simple in the real es

firm's name under seal so far as the personal effects tate conveyed by it. See Angell, Petitioner, 13 R. I. 630,

are concerned. Anderson v. Tompkins, 1 Brock. 456; and cases cited; Rogers v. Rogers, 10 id. 556; Nightin- Harrison v. Sterry, 5 Cranch, 289; McCullough v. Somgale v. Nightingale, 13 id. 113; Sprague v. Sprague, id.

merville, 8 Leigh, 415; Robinson v. Crowder, 4 Mo701; Burges v. Thompson, id. 712; Pierce v. Pierce,

Cord, 519; Deckard v. Case, 5 Watts, 22; Welles . 14 id. 63. It follows that it is the trustee's duty to March, 30 N. Y. 344; Kemp v. Carpley, 3 Duer, 1; convey the real estate which he still holds in trust,

Palmer v. Myers, 29 How. Pr. 8; 1 Am. Lead. Cas. subject to the widow's right of dower in it, to the 446-7. We think the case at bar falls under the authordaughter, in fee simple, together with the rents which ity of the cases last named. (2) When an actual delir. may have accrued from it since the decease of L. We ery cannot be made, a symbolical delivery will be suffiare also of the opinion that the same words which cient. In the case at bar the assignment, which was gave to L. the equitable fee in the real estate must be

duly delivered and recorded, was on the express trust construed to have given him the entire equitable inter- that the assignee should forthwith take possession of est in the personal property. This view is well sup

the goods assigned, and under the circumstances we ported by authority. Garth v. Baldwin, 2 Ves. Sr. 646;

think he did all that was necessary to perfect his title. Tothill v. Pitt, 1 Madd. 488; Earl of Verulam v. Bath

Whipple v. Thayer, 16 Pick. 25; Mann v. Huston, 1 urst, 13 Sim. 374; Kinch v. Ward, 2 Sim. & Stu. 409; Gray, 250 ; Mitchell v. Cunningham, 29 Me. 376, 385; Simmons v. Simmons, 8 Sim. 22. It is the view which Arnold v. Brown, 24 Pick. 89. Matter of Daniels. this court has taken sub silentio in several cases. Eaton

Opinion by Durfee, C. J. May, 1884. v. Tillinghast, 4 R. I. 278; Rogers v. Rogers, 10 id. 556; Nightingale v. Nightingale, 13 id. 113. These cases may not be very authoritative as prece- VERMONT SUPREME COURT ABSTRACT.* dents, though they cannot be ignored as precedents even, but they show that this is the natural con


REDEMPTION – Istruction, the construction instinctively given, and it

PROVEMENTS CHARGEABLE TO MORTGAGOR.- While it ought not therefore to be put aside without good reason. Such a reason would exist if the trust deed here

is a general rule that a mortgagee in possession with

out foreclosure cannot improve the mortgagor out of contained any language from which it could be satis- his estate, and that permanent improvements cannot factorily inferred that the settler intended to have the words of the grant less technically applied to the per- is not an inflexible rule, but it is suspended in excep

be made at his expense, if he elects to redeem, yet it sonal than to the real property; for it is doubtless true that the rule in Shelley's case is applied to grants of question was covered with sprouts and bushes, the

tional cases, if justice requires it; thus the land in personalty rather by way of analogy for the purposes large timber having been taken off, and in no condiof construction than as a rule stricti juris, and that it therefore yields more readily to an apparent intention

* Appearing in 56 Vermont Reports.


tion to yield income; the mortgagee was in possession, the public welfare, is the highest law. Hence if a and supposing that he was the absolute owner, cleared public highway be out of repair and impassable, a the land, built fences, and erected a small barn-all traveller may lawfully go over the adjoining land, such as good husbandry required, and done in good since it is for the public good that there should be at faith; the mortgagor stood by in silence, making no all times free passage along the highways for all the objections, asserting no right or wish to redeem until subjects of the State. In such case, an interference the improvements were substantially completed. A with private property is obviously dictated and justibill baving been brought to redeem, held that the rule fied summa necessitate, by the immediate urgency of that he who seeks equity must do equity applies; and the occasion, and a due regard to the public safety or that the improvements were chargeable to the mort- convenience. Broom Leg. Max. 2; Lord Mansfield, C. gagor. A grantor has an equity of redemption under J., in Taylor v. Whitebead, Dougl. 749; Lord Ellena deed absolute in form, but in reality a mortgage. borough, C. J., in Bullard v. Harrison, 4 M. & S. 393. Morgan v. Walbridge. Opinion by Powers, J.

But such obstruction must be from sudden and temSTATUTE OF LIMITATION — RESIDENCE — ABSENCE

porary causes, and of such a character as to render the FROM STATE.-If a debtor residing out of the State

road founderous and impracticable. The leading case when a cause of action accrues against him, comes into

in this country on the subject is Campbell v. Race, 7 the State temporarily, with no intention of residing

Cush. 408, in which the highway was obstructed and here, the creditor not knowing thereof, the statute of

rendered impassable by snowdrifts. But such a right, limitations is not thereby set in operation. Mazozon

having its origin in necessity, must be limited by the v. Foot, 1 Aik. 282; Hill v. Bellows, 15 Vt. 727. But

necessity that creates it, and does not exist from conwhen the “coming" is to dwell and reside perman

venience merely, por when by the exercise of due ently, it is not necessary in order to set the statute in

care, after notice of obstructions, other ways may be operation that the creditor should have knowledge

used and travelling extra viam thereby avoided. It is thereof; it is enough if he can acquire such knowledge

to be confined to cases of 'necessity arising from sudby the exercise of reasonable diligence. Skinner, C.

den and recent causes that have occasioned tempoJ,, in Mazozon v. Foot, 1 Aik. 282; Redfield, C. J., in

rary and impassable obstructions in the way. Morey v. Hall v. Nasmith, 28 V t. 791; Fowler v. Hunt, 10 Johns.

Fitzgerald. Opinion by Rowell, J. 464; Didier v. Davison, 2 Barb, Ch. 477; S. C., 2 Sandf.

HABEAS CORPUS-INSOLVENT LAW--R. L., $S 1794, Cb. 61; Little v. Blunt, 16 Pick. 359; Whitton v. Wass,

1839.-A debtor imprisoned on a warrant issued by the 109 Mass. 40; Angell Lim., SS 206, 207. Duvis v. Field.

Court of Insolvency is entitled to be discharged on Opinion by Rowell, J.

habeas corpus, when it appeared by the return that the TRESPASS--DAMAGES-USE OF PROPERTY-PLEADING debtor was committed to jail because he refused to -AMENDMENT-EVIDENCE.-(1) The defendant as con

submit to an examination on oath upon matters restable attached the plaintiff's ox, which was exempt; lating to his trades, dealings, the disposal of his esand after the executions were paid, the ox was re

tate, eto., and to surrender his books to a messenger, turned. Held, that the measure of damages was the

when it did not appear, that an assignee or a messeuuse of the ox; that if the defendant was at the ex- ger had been legally appointed; or that the relator bad pense of keeping the ox, it was the value of the use

been declared an insolvent debtor; and his rights are less such expense; that a failure to raise crops by rea- to be determined by the return. In re Brainerd. Opinson of being deprived of the use of the ox was not the ion by Rowell, J. natural and proximate result of the attachment; that

ANIMALS-DAMAGES BY TRESPASSING-FENCE-NEGthe plaintiff could not allow his land to go unculti

LIGENCE.—The defendaut's bull escaped from his pasvated and then ask the jury to speculate as to his loss;

ture into the plaintiff's adjoining pasture, and there and that evidence was inadmissible to show it. (2) A part of the property attached was exempt, and a part

injured his horse. The plaintiff's fence was insuffinot exempt, and the question being wbether the ex.

cient and out of repair; and the bull escaped through

a gap in that portion which the plaintiff was bound to empt was turned out for attachment, held, that evi

maintain. It was not proved that the defendant knew dence that the non-exempt property was turned out

that the animal was vicious. Held, that the bull was by its owner for attachment, was not admissible to prove tbat which was exempt was also turned out;

in the plaintiff's field through his own neglect to build end that the court properly refused to allow the offi.

a legal division fence, and that the defendant was not cer to state whether, in his opinion, the interview be.

liable; and that the statute, R. L., $ 4003, against altween himself and the owner at the time of the at

lowing a bull “to run at large out of the icclosure,',

etc., has no application, as the bull was in the defendtachment was friendly or not. (3) The plaintiff brought

ant's “inclosure" when in his pasture. The bull, as an action of trespass merely declaring for the unlawful taking of his ox; he afterward filed an amended

regards the defendants, had an excuse for being in the

plaintiff's pasture. In the language of Parke, B., in declaration averring that it was his only team, and that he had been prevented from planting his crops, etc.

Sharrod v. N. W. R. Co., 4 Welsb. H. & G. 584, and

adopted by this court in Hurd v. R. & B. R. Co., 25 The defendant then pleaded, and justified the tres

Vt. 116, “that if the cattle had an excuse for being passes charged in the amended declaration. Held, that the amendment was proper, as it simply ampli

on the road, as if they escaped through defects of

fences which the company should have kept up, the fied the cause already declared for; but if pot, that the

cattle were not wrong-doers, they had a right to be there defendant had precluded himself from raising the

and their damage is a consequent damage from wrong question on the trial of issues thus tendered. (4) The

of the defendants in letting their fences be incomdefendant claimed on trial that he settled for the tak

plete, or out of repair, and may accordingly be recoving when he returned the ox to the plaintiff. But subsequently to the returu, he took a bond of indemnifi

ered by action." On this doctrine the defendant's

bull was not a wrong-doer, or trespasser, in the plaintcation from the execution creditors. Held that the bond was admissible as evidence to disprove the claim

iff's pasture, because there through the fault or negof settlement of the unlawful attachment. Luce v.

lect of the plaintiff. The plaintiff could not maintain Hoisington. Opinion by Ross, J.

trespass for his entry into his pasture on that occasion.

It was expressly decided in Page v. Olcott, 13 N. H. HIGHWAY, OBSTRUCTION- EXTRA VIAM.— It is a 399, that one adjoining land owner could not mainmaxim that private mischief shall be endured rather tain trespass quare cluusum fregit against another for than a public inconvenience. That regard be had to damages done by the latter's sheep upon the close of


the former, wbich had escaped from the latter's in- derous words spoken by defendant, for such sum as closure through a defect in tbat portion of the divis- would compensate her for the injury. This was her ioa fence which the former was bound to maintain. cause of action, and this is what was presented to her The gist of the action of trespass upon the freehold is by the statute at his death. But she had no personal the wrongful entry. What is done after such entry is interest in the question of his punishment. So far as but an aggravation of the wrong in making the entry. he was concerned, the punitory powers of the law As the entry of the bull into the plaintiff's pasture ceased when he died. To allow exemplary damages was through his negligence in discharging a duty he now, would be to punish his legal and personal repreowed the defendants, the defendants are not respon-sentatives for his wrongful act; but the civil law never sible for any injuries which he occasioned while there, inflicts vicarious punishment. Our holding as to the although such injuries arose from a vicious act, unless object of assessing exemplary damages in any case is the defendant knew of such vicious propensity. In the abundantly sustained by the authorities, both in this well.considered case of Decker v. Gammon, 44 Me. State and elsewhere. We content ourselves however 322, cited by the plaintiff's counsel, the court say: "If with citing the following cases in this State: Hendomestic animals, such as oxen and horses, injure any dricksou v. Kingsbury, 21 Iowa, 379; Garland v. Wholeone, in person or property, if they are rightfully in the ham, 26 id. 185; Ward v. Ward, 41 id. 686. Shirk v. place where they do the mischief, the owner of such Hobson. Opinion by Reed, J. animals is not liable for such injury, unless he knew [Decided June 11, 1884.] they were accustomed to do mischief; and in suits for

EXECUTOR AND ADMINISTRATOR-SALE OF PERSONAL such injuries, such knowledge must be alleged and proved." The court cite extracts from May v. Bur

PROPERTY-DISTRIBUTION OF PROCEEDS dett, 58 E. C. L. 101; 1 Hale P. C. 430; Buxendin v.

RENT.-Where executors sell the personal property of Sharp, 2 Salk. 662; Mason v. Keeling, 12 Mod. Rep. 332;

an estate to pay the debts, the proceeds become a fund

to be distributed under the order of the court, and if Vrooman v. Lawyer, 13 Johns. 339, supporting the proposition. The court also say: The owner of do- vided pro rata. (2) The purchase money from the sale

it is insufficient to pay them all fully, it should be dimestic animals, if they are wrongfully in the place of the personal property of an estate belongs to the where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so

executors, regardless of any claim which the purchaser before." We think these extracts are a correct state

may have against the estate; but if in an action by the ment of the law upon this subject. The other cases

purchaser against the estate to enforce his claim, the cited by the plaintiff's counsel, Dunckle v. Kocker, 11 executors set up the purchase-money due as a counterBarb. 387, Chunot v. Larson, 43 Wis. 536; S. C. 28 Am.

claim against the purchaser, a court is justified in Rep. 567, note; Dolph v. Ferris, 7 Watts & Serg. 367;

treating the purchase-money claim precisely as the Ellis v. Iron Co., 11 Eng. Rep. 214, to show that the

executors pleaded it. (3) Where a lease was made, rent owner of a domestic animal is liable for injuries aris-fee, there being other consideration for giving it, and ing from its vicious act, although he did not know it

with the provision that it should not be assigned, an had such vicious propensity, are cases in which it is assignment of it did not work a forfeiture, in the shown, or found by the jury, that the animal was un

absence of a declaration of forfeiture, and so long as

the lease subsisted, the right to collect rent was gor. lawfully and wrongfully in the place where tẶe act was committed. Scott v. Grover. Opinion by Ross, J.

erned by it. Shattuck v. Lovejoy, 8 Gray, 204. Eld. redge. Opinion by Adams, J.

[Decided June 10, 1884.) IOWA SUPREME COURT ABSTRACT.


parties chargeable with notice of it, dates from the DEED-WARRANTY-CORRECTING MISTAKE.-A war

time tbe labor or material was provided. The intenranty deed that omits to mention by name a certain

tion of the Legislature, in enacting the thirty-days incumbrance, although the amount appears in the ag- limitation, was that there should be reasonable gregate of all the incumbrances, subject to which the time to allow the sub-contractor to serve notice. It grantee takes the land, and proof can be had of the

was said in Winter v. Hudson, 54 Iowa, 339: “While grantee's kuowledge of its existence before the con

it is true that the owner may make such contract as veyance, will not require the grantor to make the title he may see proper, and the sub-contractor is bound good to that extent, but the deed may be corrected by thereby, yet if the contract recognizes that there may leave of the court. Zack v. Krall. Opinion by Seev-be sub-contractors whom the owner may be required

to pay, and such owner has knowledge that certain [Decided June 9, 1884.]

persons as sub-contractors have furnished materials DAMAGES-SLANDER-VINDICTIVE-PERSONAL REP- which were used in the construction of the building, RESENTATIVE.-Vindictive damages are awarded as a he cannot pay the contractor with impunity during punishment against a wrong-doer, and not as compen- the thirty-day period." The case at bar differs from sation for the injured person. In an action against that in this, that it does not appear that the contract the personal representative of a decedent for damages recognized that there might be sub-contractors whom on account of slanderous words spoken by the de- the owner might be required to pay. But it was not ceased, exemplary or punitory damages may not be held in that case that such fact was of controlling imawarded against the personal representative. Such portance. The fact was in the case, and there was no damages are awarded as a punishment of the man who reason for determining what the rule would be in the has wickedly or wantonly violated the rights of absence of it. Where the contract expressly recoganother, rather than for the compensation of the one nizes the fact that there may be sub-contractors, the who suffers from his wrongful act. It is true they are owner becomes apprised at once that the contractor awarded to the one who has been made to suffer, but has some expectation of procuring labor or materials,or not as a matter of right; for while he is entitled under both upon credit. The recognition is a circumstance the law to such sum as will fully compensate him for to be considered with others, in a proper case, in dethe injury he has sustained, the question whether termining whether the owner was not put upon inpunitory damages shall be assessed and the amount quiry. But where, as in this case, the owner admits of the assessment is left to the discretion of the jury. that he had knowledge that the material was being Plaintiff had a right of action, on account of the slan- furnished by the person claiming as a sub-contractor,

ers, J.

he must be deemed to have had knowledge of the lien

RECENT ENGLISH DECISIONS. (Gilchrist v. Anderson, 59 Iowa, 276; S. C., 13 N. W. Rep. 290), and we cannot think that we should be WILL-EXECUTION ACKNOWLEDGMENT OF SIGNAjustified in holding that he could properly pay before TURE-FORGETFULNESS OF WITNESS.-.When & will is the end of the thirty days, even though his contract

ex facie duly executed, and there is no suggestion of called for payment before that time, and made no ref

fraud, probate ought not to be refused merely because erence to sub-contractors. Notice served after the

the persons whose names appear as attesting witnesses thirty days, with statements filed, gives a lien upon cannot, when examined, recollect either having seen the balance, if any, due the contractor. We cannot the testator sign the document, or that his signature hold that notice served before that time has no greater was there before they signed, and did not know the effect. Though a mere stipulation on the part of a nature of the document which they were siguing. Ct. contractor not to claim a mechanic's lien would not

of App., Feb. 27, 1884. Wright v. Sanderson. Opinpreclude a sub-contractor from making such a claim, ions by Selbourn, L. C., Colton and Fry, L. JJ. [See nevertheless such sub-contractor is precluded when 95 N. Y. 329; 83 id. 582; 52 id. 517.-ED.] (50 L. T. Rep. the contractor, at the outset, stipulates for a mode of [N. S.] 769.) payment inconsistent with the mechanic's lien. Jonez & Magee Lumber Co. v. Murphy. Opinion by Adams. J.


REMOVAL OF BUILDING.-In an action brought to ob

tain a mandatory injunction to compel the defendAGENCY-CONTRACT-MEMBERS OF CLUB.-As to the ants to pull down a goods station and cattle sheds contracts of an unincorporated organization, the in

which they had erected 140 yards from Bala station, dividual members are liable either because they held in the face of sub-section 6 of section 6 of an act which themselves out as agents of a principal that had no ex- provided, “that at that station there should be no istence, or because they are themselves principals, goods or cattle station, etc.," the plaintiff had not obsince there are none other in existence. It is insisted jected to the buildings till they were nearly comthat there is no known legal principle or rule under pleted, owing to his being abroad at the time, and igwhich the defendants can be made liable. It is said norant of their erection until his return. The defendthey are not parties. This is true; that is to say, ants contended that the buildings in question had not these defendants could not bind any other members been erected "at" the station, as they were 140 yards of the organization as a partner in a joint enterprise off; that if they had been, it was for the public conon a contract as to which he had no knowledge and venience they should be there, and that the plaintiff did not assent to. But we think “those who engaged was precluded by his acquiescence from now obtainin the enterprise (that is, became members of the or- ing a mandatory injunction to remove. Held, that by ganization) are liable for the debts they contracted, sub-section 6 the defendants had made a statutory and all are included in such liability who assented to contract not to do what the court was of opinion they the undertaking, or subsequently ratified it.” It was had done, so that the question of public convenience so held in Ash v. Guie, 97 Penn. St. 493; Fredendall v. did not apply, and that the acquiescence of the plaintTaylor, 26 Wis. 286; and is supported to some extent iff was not such as wonld preclude him from obtaining by what was said by this court in Keller v. Tracy, 11 the injunction, but that the court would grant one, Iowa, 530; and Drake v. Board of Trustees, id. 54. compelling the defendant to remove the buildings as Lewis v. Tilton. Opinion by Seevers, J.

prayed. High Ct. of Justice, Ch. Div., May 6, 1884. [Decided June 14, 1884.]

Price v. Bala, etc., R. Co. Opinion by Chitty, J. [See

5 Allen, 221; 1 Gray, 340, 367.-ED.] (50 L, T. Rep. (N. AGENCY-PURCHASE PRICE-IMPLIED AUTHORITY- S.) 787. RATIFICATION-RECOURSE TO AGENT-DEMAND.- An authority to make a contract for the sale of lands will WILL-EXECUTION-ALIEN.-A will made according authorize the agent to receive so much of the pur

to the forms of English law by an alien, who though chase-money as is to be paid in hand on the sale as an

her domicile of origin was English was domiciled incident to the power to sell. Story Ag., $ 58; John

abroad at the time of making her will and of her sou v. McGruder, 15 Mo. 365; Yerby v. Grigsby, 9

death, is not entitled to probate in this country. 8 P. Leigh (Va.), 387; Higgins v. Moore, 6 Bosw. 344; Good

Div. 101, affirmed. Ct. of App., Feb. 13, 1884. Bloxam ale v. Wheeler, 11 N. H. 424; Peck v. Harriot, 6 Serg.

v. Favre. Opinions by Lord Selborne, L. C, Lord Cole& R. 149; Hoskins v. Johnson, 5 Sneed, 469. A land-ridge, C. J., and Cotton, L. J. (50 L. T. Rep. [N. owner having suffered others to hold, occupy, and cul- S.] 766. tivate land under deeds prima facie good, and for

WILL ANNUITY DIRECTION TO APPROPRIATE adequate consideration actually paid by them, cannot

FUND-DEFICIENCY IN INCOME-RESORT TO CAPITAL after three years impeach the sale on the ground of

OF ESTATE.- A testator after giving various pecuniary his attorney's defrauding him in the transaction. Hayes v. Steele, 32 Iowa, 44; Cooper v. Schwartz, 40

legacies, bequeathed to various persons annuities of 1l.

a week, and he directed sufficient funds to be approWis. 57; Hawkins v. Lange, 22 Minn. 557; Cairnes v.

priated in the name of his trustee out of his personal Bleecker, 12 Johns. 300; Benedict v. Smith, 10 Paige,

estate to answer by means of the income the payment 127. As against the attorney, plaintiff asks for no specific relief, and we are not certain that as against

of the annuities, and he directed that on the dropping

of the annuities the appropriated funds should follow him he claims relief of any kind. We have seen that

the distribution of his residuary personal estate. The by ratification the payment to Palmer became a valid

income of the personal estate, after payment of the payment, and he received the money as the plaintiff's duly-authorized agent. The rule is that where money

pecuniary legacies, was insufficient to pay the annuihas been properly received by an agent for his princi

ties. Held, that the annuities were payable, so far as pal be is not liable in an action until a demand has

necessary, out of the capital of the estate. Ch. Div., been made by his principal. Bedell v. Janney, 9 Ill.

May 8, 1884. Matter of Taylor. Opinion by Pearson, 193; Cockrill v. Kirkpatrick, 9 Mo. 697 ; Armstrong v.

J. (50 L. T. Rep. [N. S.] 717.) Smith, 3 Blackf. 251; Waring v. Richardson, 11 Ired. FRAUD-MISREPRESENTATION IN PROSPECTUS-AM Law, 77. Alexander v. Jones. Opinion by Ad. BIGUOUS EXPRESSION - MATERIALITY- BURDEN OF ams, J.

PROOF.-In order to succeed in an action of deceit, the Decided June 13, 1884.)

plaintiff must prove actual fraud, and that such fraud


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