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In Sutherland v. North more, 1 Dick. 56, a feme “To constitute such unsounduess of mind as should covert had a power under her marriage settlement, to avoid a deed at law the person executing such deed create a term and to raise money after the death of must be incapable of understanding and acting in the her husband. Her execution thereof during her hus- ordinary affairs of life." This statement of the rule is band's life-time was, on the case being sent to the given in the opinion of the House of Lords in Ball v. King's Bench, held to be good; and this holding the Maruin, 1 Dow. & C. 380, and is quoted with apparCourt of Chancery confirmed. See Wandesforde v. ent approval by the Supreme Court of the United Carrick, L. R., 5 Irish Eq. 486.

States in Dexter v. Hall, 15 Wall. 9. In the former of In Duke v. Palmer, 10 Rich. Eq. 380, & testator ap- these cases the court below refused to charge that the pointed his wife and son executors, and gave to his unsoundness of mind must amount to idiocy; and this wife several slaves during her life, and at her death to ruling was sustained first by the Court of King's Bench be sold and equally divided among his lawful heirs. in Ireland, afterward by the Exchequer Chamber, and The son alone qualified as executor, and afterward finally by the House of Lords. The rule is thus stated with his mother's co-operation, sold one of the slaves in Dennett v. Dennett, 44 N. H. 531: “The question for a full consideration. The mother survived eleven then in all cases where incapacity to contract from de. years tbereafter. Held, that one of testator's heirs fect of mind is alleged, is not whether the person's could not, after the mother's death, set aside the sale mind is impaired, nor if he is affected by any form of as against a bona fide purchaser of the slave from the insanity, but whether the powers of his mind have original purchaser, but that his only remedy was been so far affected by his disease as to render him inagainst the executor for the proceeds of the sale. capable of transacting business like that in question."

In Bazemore v. Davis, 48 Gn. 339, lands were held in And again: “Every person is to be deemed of unsound trust for A. for life, and at her death to her children, mind who has lost his memory and understanding by The trustee sold and conveyed the whole estate, as old age, sickness or other accident, so as to render him trustee, A. entering on the deed a written consent to incapable of transacting his business and of managing its execution. Held, that A. did not thereby forfeit his property. When it appears that a grantor bas tiot her life estate in the premises, so that a right of action strength of mind and reason to understand the nature immediately accrued to the remaindermen. See also and consequences of his act in making a deed, it may Champlin v. Champlin, 3 Edw. Ch. 571; Styer's Ap- be avoided on the ground of insanity." Re Barker, 2 peal, 2 Grant's Cas. 453; Loomis v. MoClintock, 10 Johns. Ch. 232. In Converse v. Converse, 21 Vt. 168, it Watts, 274; Bartles' case, 6 Stew. Eq. 46; Greeue v. is said that a person is of unsound mind if "the mind Aborn, 10 R. I. 10.

is iuert, the memory is unable to recall and the mind The court has no jurisdiction to order a sale before to retain in one view all the facts upon which the the time designated in the power, on the ground that judgment is to be formed for so long a time as may be it would be beneficial to the parties, Johnstone v. required for their due consideration." The rule as to Baker, 8 Beav. 233; Bristow v. Skirrow, 27 id. 590; the responsibility of a lunatic or person non compos Blacklow v. Laws, 2 Hare, 40; Troy v. Troy, Busb. Eq. mentis upon his coutracts, is the same in equity as in 85; Simpson v. Cook, 24 Minn. 180; 27 id. 147; nor the law; and if this court is bound to follow the ruling in Legislature, Rodman v. Munson, 13 Barb. 63; Ervine's Dexter v. Hall it is conclusive of the question now Appeal, 16 Penn. St. 256; see Clarke v. Hayes, 9 Gray, under consideration. It is insisted however that a dif426; Mohr v. Porter, 51 Wis. 504; Forster v. Forster, ferent doctrine has been established in this State by 129 Mass. 564; Cooley's Const. Lim. (4th ed.) *97.-J. several decisions of its Supreme Court, and that these H. STEWART REP.

decisions constitute a rule of property here, which this [See also 17 Am. Rep. 709; 13 id. 23; 25 Eng. Rep. court should adhere to. It is true that the Supreme 792.]

Court of this State has held that “equity will not in. terfere to set aside a conveyance, on the ground of the

insanity of the grantor, to one who shall have purUNITED STATES CIRCUIT AND DISTRICT

chased in good faith, and for value, in ignorance of the COURT ABSTRACT.*

mental condition of the grantor.” Ashcraft v. De Ar.

mond, 44 Iowa, 229. And also that “persons of unMORTGAGE-COVENANTS-AFTER-ACQUIRED TITLE

sound inind will be bound by their executed contracts, MARRIED WOMAN-CAPACITY TO CONTRACT-RULE OF

where such contracts are fair and reasonable, and PROPERTY-FOLLOWING STATE COURTS.-A mortgage

were entered into by the other parties without knowl. containing covenants of general warranty will, as be

edge of the mental unsoundness, in the ordinary course tween the mortgagor and mortgagee, pass an after-ac

of business, and where the parties cannot be placed in quired title. Rice v. Kelso, 7 N. W. Rep. 3; 10 id. 335;

statu quo." Abbott v. Creal, 56 Iowa, 175; 8. C., 9 N. Jones Mort., $$ 561, 682, 825, and cases cited. But this

W. Rep. 115. And see, to the same effect, Behrens v. rule does not apply to covenants in the deed of a mar

McKenzie, 23 Iowa, 333. These cases undoubtedly hold ried woman, for they amount to nothing more than a

a different doctrine from that laid down in Dexter v. release of dower, and do not estop her to claim au after

Hall; and the question is whether they establish a acquired interest. Bish. Mar. Wom., $ 603; Childs v.

rule relating to land titles within the State of Iowa MoChesney, 20 Iowa, 431; Iowa Code, $ 1937. There is upon the face of the mortgage no express statement

which this court should follow, notwithstanding a con that the wife shall be bound by the covenants con

trary decision by the Supreme Court of the United tained therein. O'Neil v. Vanderburg, 25 Iowa, 104;

States. It is true that wbere any principle of law esThompson v. Merrill, 10 N. W. Rep. 796. In order to

tablishing a rule of real property has been settled in set aside a contract upon the ground of unsoundness of

the State courts that rule will be applied by the Fed.

eral courts within the same State; and it makes no mind it must appear that there was a total deprivation

difference whether such rule of property grows out of of reason. Ex parte Barnsley, 3 Atk. 168; Stewart's Ex'r v. Lispenard, 26 Wend. 255. The more modern

the Constitution or statutes of the State, or out of rule is that it is only necessary to show that the party

the principles of the common law adopted and applied

to such titles. Jackson v. Chew, 12 Wheat. 153. It executing the contract was of such weak and feeble mind as to be incapable of comprehending its nature.

may be doubted whether the question here presented Tbis rule is sometimes stated in another form, thus:

is not a question of equity law, and if it is, this court

is not bound by the decision of the State court. Ner. *Appearing in 20 Federal Reporter.

es v. Scott, 13 How. 268; United States v. Howland,

4 Wheat. 115; Boyle v. Zacharie, 6 Pet. 658. The de. is sufficient to give the injured party a right to recisions of the highest court of a State may be said to dress." Nor need the resemblance be such as would coustitute a rule of property when they relate to and deceive persons seeing the two trade-marks placed settle some principle of local law directly applicable to side by side (Manuf. Co. v. Trainer, 101 U. S. 64), or titles. A rule of property is oue thing; a rule respect- such as would deceive experts, persons, because of ing the validity of a class of contracts which may or their peculiar knowledge from their being wholesale or may not affect titles to property is another and a dir retail dealers, or in any other way specially conversant ferent thing. It has been held that the Federal courts with the trade-mark simulated. But the tradesman are not bound by the decisions of the State courts de- brings his privilege of using a particular trade-mark termining whether au justrument is a promissory note under the protection of equity if he proves, or it is ap(Bradley v. Lill, 4 Biss. 473), and I suppose it would parent or manifest to the court by inspection, that the make no difference it such an instrument were secured representation employed bears such a resemblance to by mortgage. The Federal courts would still maintain his as to be calculated to mislead the public generally, the right to decide for themselves all questions as to who are purchasers of the article, to make it pass with its validity, and its force and effect, except such as are them for the one sold by him. If the indicia or signs determined by local statute. Again let us suppose that used tend to that result the party aggrieved will be the State courts establish a rule respecting the right of entitled to an injunction. This principle is sustained purchasers and assiguees of negotiable paper, which is by the cases above referred to; by Walton v. Crowley, contrary to a rule upon the same subject established 3 Blatcbf. 440; 2 Story Eq. Jur. 951; 2 Kent Comm. by the Supreme Court of the United States. It is 453, and a long and unbroken line of authorities, well settied as a general proposition that this being a American and English. See also Filley v. Fassett, 44 rule of general commercial law the Federal courts de- Mo. 173. Liggett & Myer Tobacco Co. v. Hynes. Dist. cide upon it for themselves. Would the rule be oth-Ct., W. D. Ark., May, 1882. Opinion by Parker, J. erwise in a case where such an instrument happens

EJECTMENT-POSSESSION OF DEFENDANT-TRESPASS. to be secured by a mortgage? The case of Thomas v.

-In Arkansas, before the plaintiff can recover in Hatch, 3 Sumn. 170, is instructive upon the question, ejectment, he must show that at the time of the comwhat is to be understood by the phrase "rule of prop- mencement of the action the defendant was in posseserty?" The case turned largely upon the construc

sion. Tyler Ej. & Adv. Euj. 472; Owen v. Fowler, 24 tion of a deed. The Supreme Court of the State

Cal. 192; Owen v. Morton, id. 373; Pope v. Daltou, 31 (Maine) had in another case construed the same instru- id. 218; Williamson v. Crawford, 7 Blackf. 12; Pope v. ment; but Mr. Justice Story refused to adopt that Pendergrast, 1 A. K. Marsh. 122. The mere act of cutconstruction, saying: “If this were a question of ting timber on land and hauling it off is not such pospurely local law we should not hesitate to follow the session of the land as will entitle the owner to maindecision of that learned court, for which we entertain tain ejectment against the trespasser, and occasional the greatest respect. But the interpretation of a deed intrusions of this sort do not constitute possession, of this sort is in no just sense a part of the local law. whether done under claim of title or not. Such acts It must be interpreted everywhere in the same man

are mere trespasses against the true owner, whoever be per; that is to say, according to the force of the lan

may be.

* But it never was supposed that the guage used by the grantor, and the apparent intentions | hunter had possession of the forest through which he of the parties deducible therefrom." Edwards v. Dav- roamed in pursuit of game; and no more can a woodenport. Cir. Ct., 8. D. Iowa, May, 1883. Opinion by chopper be said to possess the woods in which he euters McCrary, J.

to cut logs. Thompson v. Burhaus, 79 N. Y. 93; Austin TRADE-MARK-INFRINGEMENT-SIMILARITY-INTEN

v. Holt, 32 Wis. 478, 490; Washburn v. Cutter, 17 Miun. TION TO DECEIVE.-The question to be considered in (Gil.) 361; 3 Washb. Real Prop. 133, 134. There is noththis case is whether the conduct of the defendant ing on the record to show the land is not susceptible of amounts to an infringement of the plaintiff's trade

actual occupation, cultivation and improvement. The mark, or an injury to his legal or equitable rights. As

case is not within the rule of Ewing v. Burnet, 11 Pet. was well remarked by the Kentucky Court of Appeals 41, and Doorv. School District, 40 Ark. 237. Under the in the case of Avery v. Mickle, “the object of the

consent rule in the old form of the action of ejecttrade-mark law is to prevent one person from selling ment the defendant was compelled to confess lease, his goods as those of another, to the injury of the latentry and possession, or pay the costs of suit, and the ter and of the public.” It grew out of the philosophy of plaintiff could bring another action (3 Bl. Comm. 205; the general rule that every man should so use his own

Tyler Ej. 458, 472), and in many of the States, by statproperty and rights as not to injure the property or

ute, actions of ejectment may now be brought against rights of another, unless some priority of right or

persons claimiug title or interests in real property, aleinergency exists to justify a necessarily different man.

though not in possession. Harvey v. Tyler, 2 Wall. 328, ner of use. It is true in this case that the trade-mark 348; Tyler Ej. 458, 472. But neither of these rules, as upon the tobacco of defendant is not a fac simile of

we have seen, have application here. In this State a that upon the tobacco of plaintiff. If it was, it would verdict and judgment in ejectment is final and concluof course be an infringement. They are not exactly sive on the title and right of possession put in issue by similar. But to constitute an infringement exact simi. the pleadings. Where this is the rule it is difficult to larity is not required; there may be an infringement perceive why the possession of the land by the defendwithout it. The Supreme Court of the United States

ant should be an indispensable prerequisite to the in Gorham Co. v. White, 14 Wall. 511, declares: "Two plaivtiff's right to have the merits of their respective trade-marks are substantially the same in legal con

titles tried at law. It is probably another instance of templation is the resomblance is such as to deceive an

the continuance of a rule after the reason for it has ordinary purchaser "- giving such attention to the

ceased to exist, and after it has become an obstruction same as such a person usually gives, and to cause bim

rather than an aid to the administration of justice. to purchase the one supposing it to be the other. The

However this may be, the old rule is embedded in the sarne court, in McLean v. Fleming, 96 U. S. 255, says:

statute law of this state, and the courts are powerless “Where the similarity is sufficient to convey a false

to change it. Ozark Land Co. v. Leonard. Cir. Ct., impression to the publio mind, and is of a character to

E. D. Ark., April, 1884. Opinion by Caldwell, j. mislead and deceive the ordinary purchaser in the ex- CARRIER-BILL OF LADING-RESTRICTING LIABILITY ercise of ordinary care and caution in such matters, it -NEGLIGENCE.-In this case the bill of lading exempts

*

org.

the vessel from liability for loss occasioned by “pi- paper corporation, as a form or shield to cover a partrates, robbers, thieves, * * or from any act, neg- nership or joint venture, and where the stockholders lect or default of the master or mariners." The de- are partners in intention. The liberal facilities of. fendant's vessel was a general ship, and a common car- fered by the statutes of many of our States for organrier. The clause of the bill of lading exempting her izing such corporations are undoubtedly often utilized from liability for any "act, neglect or default of the by those whose only object is to escape liability as master or mariners" is therefore invalid, and affords partners by calling themselves stockholders or direct. no defense if the loss was occasioned through their Where such a concern is formed, a court of negligence. Railroad Co. v. Lockwood, 17 Wall. 357; equity might treat the associates as partners in fact, Bank of Kentucky V. Adams Express Co., 93 U. S. 174; disregard the fiction of a corporate relation between The Hadji, 16 Fed. Rep. 861; 18 id. 459. It is not nec- them, and subject the title of the property transferred essart to consider the conflicting views as to the ship's to it by the promoters to any equities which might liability under the exception of “thieves, robbers,' have existed as against them. The general rule which etc., that the theft had been committed by one of her charges a principal with the knowledge of his agent is own employees (Spinetti v. Atlas Steamship Co., 80 N. founded on the presumption.that the agent will comY. 71; Taylor v. Liverpool, etc., L. R., 9 Q. B. 546), municate what it is his principal's interest to know por what effect, in the consideration of that question, and the agent's duty to impart. In the language of should be given to the principles laid down by the Su- Mr. Justice Bradley, the rule “is based on the principreme Court in Railroad Co. v. Lockwood; since J.,ple of law that it is the agent's duty to commuuicate who is satisfactorily shown to have committed to his principal the knowledge which he has respectthe theft, was not at this time in the ship's employ, ing the subject-matter of the vegotiation, and the prebut had been previously discharged. The exception sumption that he will perform that duty.” The Disof loss by thieves or robbers is valid, unless it be shown tilled Spirits, 11 Wall. 367. The rule has no applicathat there was negligence on the part of the sbip which tion when an agent divests himself of his fiduciary contributed to the theft or facilitated it; and upon character and becomes a contracting party with his defendant's proving that the theft was committed by principal, because there is no reason to presume that a person not belonging to the ship, the burden of he will impart information which it is for his interest proof is upon the libellants to show to the satisfaction to suppress. “When a man is about to commit a of the court that the loss might have been avoided by fraud it is to be presumed that he will not disclose the exercise of reasonable and proper care on the part that circumstance to his colleagues." Kennedy v. of tbe ship, and that the theft would not have occurred Green, 3 Mylne & K. 699. Accordingly it has been reif such care had been exercised. If the carelessness of peatedly adjudged that a corporation will not be the ship was such as to invite the theft, or to make it charged by the knowledge of a director in a transaceasy, or if the attempt would not have been successful tion in which the director is acting for himself, beexcept through the lack of such watchfulness and care cause he represents his own interests, and not those of as was reasonably incumbent upon those having charge the corporation. Com. Bauk v. Cunningham, 24 Pick. of such treasure, then the loss must be held to be oc- 270, 276; Housatonic & Lee Banks v. Martin, 1 Metc. casioned by the carrier's negligence and inattention to 308; Winchester v. Balt. & S. R. Co., 4 Md. 239; Seneca his duty, as well as through the direct acts of the thief. Co. Bank v. Neass, 5 Denio, 337; La Farge Fire Ins. In Clark v. Barnwell, 12 How. 272, 281, the court say: Co. v. Bell, 22 Barb. 54; Terrell v. Branch Bank of " But if it can be shown that it (the loss) might have Mobile, 12 Ala. (N. S.) 502. Cir. Ct., N. D. New York. been avoided by the use of proper precautionary meas- Davis Imp. Wrought Iron W. W. Co. v. Davis Wrought ures, and that the usual and customary methods for Iron W. Co. Opinion by Wallace, J. this purpose have been neglected, they may still be

JURISDICTION-U. S.

ESTOPPEL DEXY held liable. It is competent for the libellants to show

REMOVAL.- All the circumstances that the respondents might have prevented it (the loss)

sary to confer jurisdiction, as provided in the first by proper skill and diligence in the discharge of their

and second sections of the act of 1875, are found duties." In Transportation Co. v. Downer, 11 Wall.

to exist in this case; the amount exceeds $500 and the 129, 133, the court say: "If the danger might have been

parties are citizens of different States. Nothing more avoided by the exercise of proper care and skill on the

is required. Brooks v. Bailey, 9 Fed. Rep. 438; Petpart of the defendant, it is plain that the loss should

terson v. Chapman, 13 Blatchf. 395; Claflin v. Ins. Co., be attributed to the negligence and inattention of the

110 U. S. 81. The subsequent clause of the first seccompany, and it should be held liable, notwithstand

tion, which provides that “no civil suit shall be ing the exception in the bill of lading." See also Six

brought before either of said courts against any perHundred and Thirty Quarter Casks of Sherry Wine,

son by any original process or proceeding in any other 14 Blatchf. 517; Dedekam v. Vose, 3 id. 44; Richards

district than that whereof he is an ivhabitant, or in v. Hansen, 1 Fed. Rep. 54, 63; The Invincible, 1 Low.

which he shall be found at the time of serving such 226; The Montana, 17 Fed. Rep. 377. The Saratoga.

process or commencing such proceedings," does not Dist. Ct., S. D. N. Y., June, 1884. Opinion by

limit the jurisdiction of the court but relates to the Brown, J.

mode of acquiring it. It is intended for the protecCORPORATION-NOTICE TO STOCKHOLDERS; NOT TO tion of the defendant and confers a privilege which he CORPORATION.-A corporation can have no agents can waive by appearing without asserting it. Robinuntil it is brought into existence, and after that it son v. Nat. Stock-yard Co., 12 Fed. Rep. 361; Toland acts and becomes obligated only through the instru- v. Sprague, 12 Pet. 300; Sayles v. N. W. Ins. Co., mentality of its authorized representatives. Stock- supra; Flanders v. Ætna Ins. Co., 3 Mas. 158; Gracie holders cannot bind it except by their action at cor- v. Palmer, 8 Wheat. 699; Kelsey v. Penn. R. Co., 14 porate meetings, and it is undoubted law that notice Blatchf. C. C. 89. If permitted to do so, the plaintto individual stockholders is not notice to the cor- iff would undoubtedly have little difficulty in showing poration, and their knowledge of facts is not notice of that the defendant is found within this district and is them to the corporation. In re Carews, Act, 31 Beav. therefore in no position to claim the benefit of the 39; Union Canal Co. v. Loyd, 4 Watts & S. 393; Fair- privilege alluded to, but confining the case strictly to field Turnpike Co. v. Thorp, 13 Conn. 182; The Ad- the stipulated facts it must be held that the defendmiral, 8 Law Rep. (N. S.) Mass. 91. Instances may ant has waived any objection which it might have occur where associates combine together to create a taken. The jurisdiction of this court was invoked by

COURTS

AFTER

neces

the defendant and it should abide the result in a forum care and labor in consequence of her child's sickness, of its own seeking. Cir. Ct., N. D. New York, June and sustained pecuniary loss by reason of boarders be6, 1884. Edwards v. Conn. Mut. Life Ins. Co. Opinion ing kept away. Held, that defendant was liable for by Coxe, J.

damages. The carrying of persons infected with conEASEMENT-IMPLIED RESERVATION-DEDICATION TO

tagious diseases along public thoroughfares, so as to PUBLIC.-At common law a dedication does not pass

endanger the health of other travellers, is indictable a fee or freehold in the soil, por give any right to the

as a nuisance. Add. Torts, $ 297 ; Rex v. Vantandillo, profits of the soil. It only serves as an estoppel in pais

4 Maule & S. 73. Spreading contagious diseases among to the owner of the soil to assert any rights of posses

animals by negligently disposing of, or allowing to ession inconsistent with the enjoyment of the uses to

cape, animals infected, is actionable. Add. Torts which the dedication was made. Washb. Easem. 220.

(Wood's Ed.), 10, note; Anderson v. Buckton, 1 Stra. A dedication may be made without writing by act in

192. A person sustaining an injury not common to pais as well as by deed. It is not at all necessary that

others by a nuisance is entitled to an action. Co. Litt. the owner should part with the title wbich he has, for

56a. Negligently imparting such a disease to a person dedication has respect to the possession, and not the

is clearly as great an injury as to impute the having it; permanent estate. Its effect is not to deprive a party

and negligently affecting the health of persons injuriof his land, but to estop him, while the dedication

ously as great a wrong as so affecting that of animals. continues in force, from asserting that right of exclu

Cir. Ct., S. D. New York, July 5, 1884. Smith v. Baker. sive possession and enjoyment which the owner of

Opinion by Wheeler, J. property ordinarily has. Where as in the case of PLEDGE-SECURITIES-REHYPOTHECATION BY BROhighway, the public acquire but a mere right of pas- KER.–Where the owner of securities pledges them sage, the owner, who makes the dedication, retains a with a stock-broker as collateral to a loan, the latter right to use the land in any way compatible with the has no right to rehypothecate them in such a way that full enjoyment of the public easement. Id. 216; Hun- they cannot be restored to the owner upon payment ter v. Trustees, 6 Hill, 411; Tallmadge v. East River of the loan, although both parties understood that the Bank, 26 N. Y. 108; Dubuque v. Maloney, 9 Iowa, 455. broker would have to use the securities to obtain the The public takes no more than the owner gives. loan. Usage is inadmissible to destroy a contract. Where a plat of land has been dedicated as a public Cir. Ct., S. D. New York, June 21, 1884. Oregon & square, the authorities of the town were prohibited Transcontinental Co. v. Hilmers. Opinion by Walfrom making use of the land for purposes inconsistent lace, J. with its use as a public square. Abbott v. Mills, 3 Vt.

TRUST-DECLARATION OF — MANUAL DELIVERY.521 ; State v. Catlin, id. 530; Pomeroy v. Mills, id. 279;

In cases of declarations of trust and deeds of conveyCincinnati v. White's Lessees, 6 Pet. 431. It follows

ance or mortgage, when nothing further is expected to that the municipal authorities cannot deprive the

be done by the beneficiary or grantee to complete the owner of laud, who has simply dedicated to the public

transaction as a whole, a formal sealing and delivery, an easement to pass over it, of any use of the land dedicated not inconsistent with the full enjoyment of

without an actual delivery to the other party, or to a

third person for his use, will be sufficient to make the the easement. Cir. Ct., E. D. Tem., April, 1884.

deed or declaration operative immediately, unless Stevenson v. Chattanooga. Opinion by Key, J.

something else exist or be done to qualify such formal STATUTE OF FRAUDS--CONTRACT FOR SALE OF GOODS

delivery. In Hope v. Harman, 11 Jur. 1097, Mr. Hope -MEMORANDUM.—The travelling agent of the defend

executed a deed to his nephew for a box of jewels, in ant company ad 'essed to his principals an order,

the presence of a witness, who signed the attesting " send to C. W. S. Banks: terms net 30 days; freight

clause, “signed, sealed, and delivered." The deed allowed," signed by him as agent and followed by a never went out of the possession of the grantor, and list of the merchandise desired, with prices and direc- Lord Denman left it to the jury to say whether it had tions for shipping, signed by Banks, the plaintiff.

been duly executed and delivered with intent to operHeld, that the paper was upon its face merely an ate immediately, and the jury found that it had been. order, and not a memorandum of sale signed by the The instruction was held by the court in bano to have defendant or his agent, within the terms of the stat

been correct. But declarations of trust are often susute of frauds. There is no real question but that these

tained by much less regard to evidence of delivery instruments sufficiently set forth the terms of the sale,

than is required for establishing deeds of conveyance. if they show a sale, nor but that the name of the

Thus in Fletcher v. Fletcher, 4 Hare, 67, the testator agent is sufficiently signed to the memorandum, if it by a voluntary deed, covenanted with trustees that in is a memorandum of a bargain of sale and he had au

case A. and B., his two natural sons, should survive thority to bind the defendant to a contract of sale.

him, his executors and administrators should pay to Drury v. Young, 58 Md. 546. The memorandum must

trustees named £60,000 upon trust for them to be paid set forth on its face enough to gather a contract of

at 21 years of age. He retained the deed in his possale from, as against the party to be charged with the

session and told no one of it. By his will he beconsequences of such a contract in the action. Eger- | queathed all his property in trust for his widow and ton v. Mathews, 6 East, 307; Cooper v. Smith, 15 id.

other persons. The deed was found among his pa103; Bailey v. Ogden, 3 Johns. 399. This memoran

pers. It was held by Vice-Chancellor Wigram that it dum appears to be of an order, and not of a sale, and

created a trust for A. (who survived the grantor), would so far as it shows for itself, fail to make out a

though the trustee refused to sue at law; and that the sale without acceptance of the order. Chit. Cont. 349. retention of the deed in the grantor's custody, and Cir. Ct., D. Vermont, March 20, 1884. Banks v. Harris not communicating its existence to the trustee or Manf. Co. Opinion by Wheeler, J. (See 20 Fed. Rep.

cestui que trust, did not affect its validity. On the last 668, note; 47 Am. Rep. 532; 48 id. 110.-ED.)

point the vice-chancellor referred to Dillon v. Coppin,

4 Myin & C. 660, and to Doe v. Knight, 5 Barn. & C. NEGLIGENCE- SPREADING DISEASE DAMAGES.- 671. This subject is discussed in Adams v. Adams, 21 Defendant took his children when they had whoop- Wall. 185; in Bunn v. Winthrop, 1 Johns. Ch. 329; ing-cough, a contagious disease, to the boarding-house Souverbye v. Arden, id. 255; and in Lewin Trusts, of plaintiff to board, and by reason of his negligence 152. Mr. Lewin, as quoted in Adams v. Adams, gives her child, and the children of other boarders, con- the following rules on this subject: "On a careful extracted the disease, whereby she was put to expense, amination the rule appears to be, that whether there was transmutation of possession or not, the trust will or grade the approach to his premises; but in so dobe supported, provided it was in the first instance per- ing he must not obstruct the ditoh or the way. (3) It fectly created.

It is evident that a trust is is “wilfully” obstructing a public ditch for one who not perfectly created where there is a mere intention knows its character to purposely and perversely fill it or voluntary agreement to establish a trust, the settler up in a permanent way, even though bis object is to himself contemplating some further act for the pur. obtain access from his lands to the highway, and the puse of giving it completion. * * * If the settler act is done under a mistaken notion of his rights. The propose to convert himself into a trustee, then the word "wilfully," when used to denote the intent with trust is perfectly created, and will be enforced as soon which an act is done, is a word which is susceptible of as the settlec has executed an express declaration of different significations, depeuding upon the context trust intended to be final and binding upon him, and in which it is used. It is employed in penal statutes in this case it is immaterial whether the nature of the more frequently to distinguish between those acts property be legal or equitable. * Where the which are intentional and by design and those which settler proposes to make a stranger the trustee, then are thoughtless or accidental. It may sometimes to ascertain whether a valid trust has been created or mean corruptly or unlawfully, or agaiu designedly or not, we must take the following distinctions: If the purposely, with an intent to do some act in violation subject of the trust be a legal interest, and one capable of the law. Com. v. Bradford, 9 Meto. 270; Com. v. of legal transmutation, as land, or chattels, etc., the Brooks, 9 Gray, 303; Com. v. McLaughlin, 105 Mass. trust is not perfectly created unless the legal interest 463. Sometimes it is used as implying an evil intent be actually vested in the trustee.” It seems to us that without justifiable excuse. 1 Bish. Crim. Law, $ 421; the deed in question, regarded merely as a declaration State v. Abram, 10 Ala. 928; McManus v. State, 36 id. of trust, was clearly executed in a manner to fulfill all 285; Com. v. Kneeland, 20 Pick. 206; United States F. the requirements of such an instrument; though we Three Railroad Cos., 1 Abb. 196; State v. Preston, 34 are further of opinion that it was well and sufficiently Wis. 675; 47 Am. Rep. 311. Commissioners v. Ely. executed and delivered as a deed of conveyance to Opinion by Champlin, J. transfer the legal title. Doe v. Knight, 5 B. & C. 671; [Decided June 18, 1884.] Blight v. Schenck, 10 Penn. St. 285; Diehl v. Emig, 15 P. F. Smith, 320. Cir. Ct., W. D. Penn., May 23, 1884. Linton v. Brown's Admrs. Opinion by Bradley, J. NEBRASKA SUPREME COURT ABSTRACT.

GUARDIAN AND WARD-JURISDICTION — SALE OF MICHIGAN SUPREME COURT ABSTRACT. INFANT'S ESTATE SETTLEMENT RATIFICATION

LIMITATION.— When a petition for the appointment INNKEEPER-BAGGAGE-GUEST DRUNK-PEDDLER- of a guardian for a child six or seven years of age was NOTICE.-An innkeeper's liability for a guest's bag- signed in the name of the child, and a guardian was apgage is not diminished, but rather increased, by the pointed and gave bond, etc., held, sufficient to give the fact that the guest has got too drunk at his bar to court jurisdiction. When the records of the Probate take care of it himself. A guest's obligation to notify Court showed a license to a guardian to sell the real the innkeeper if he has property of extraordinary estate of his ward, a sale and coufirmation thereof, value in his baggage does not attach to a peddler stop- and the execution of a deed to the purchaser, it will be ping at an inn with his pack, or with the usual ap- presumed twenty-two years afterward, in an action by purtenances of his business. So held in the case of a the ward to recover the land, that the necessary steps peddler who put up at an inn with a comrade, each were taken to procure the issuing of the license. Bank having a valise and a small box, their baggage amount- of United States v.Dandridge, 12 Wheat. 70; Coombs v. ing to upwards of $300, and whose goods and valise Lane, 4 Ohio St. 112; Ward v. Barrows, 2 id. 241; were taken while in the landlord's care. Rubenstein v. Tecumseh Town-site Case, 3 Neb. 284. This doctrine Cruikshanks. Opinion by Sherwood, J. (21 Eng. is peculiarly applicable to a new State, where from Rep. 561.)

lack of conveniences, and from the ease with which [Decided June 18, 1884.]

access may be had to them, papers cannot or at least

are not, as carefully preserved as in older communiTown- DIVIDED- DEBT — MANDAMUS.- Where a

ties. This consideration with others led to the incortownship is divided into two parts, one part taking a

poration into both our Constitutions of the clause renew name and the other retaining the old name, the latter still exists as the old township, and is charge tors, and guardians to be licensed by the judge of the

quiring sales of real estate by executors, administraable with its obligations, and a writ of mandamus will

ot Court. We therefore hold that in the absence issue to compel it to meet them. Courtright v. Brooks

of proof to the contrary the issuing of license to sell Township. Opinion by Cooley, C. J. (See 11 Am. Rep.

real estate presupposes the existence of the necessary 602; 21 Eng. Rep. 267.-ED.)

steps to authorize its issue. See Grignon V. Aster, 2 [Decided June 18, 1884.]

How. 339; Thompson v. Tolmie, 2 Pet. 162: Ballow y. HIGHWAY-LIABILITY OF COMMISSIONER —

Hudson, 13 Gratt. 672; McPherson v. Cuuliff, 11 S. & TING OWNERS - DAMNUM ABSQUE INJURIA—"WIL- R. 422; Lalanne v. Moreau, 13 La. 433. A settleFULLY."-(1) A commissioner of highways, or an over- ment by a ward after he comes of age with his guardseer acting under his direction, incurs no liability to ian, acceptance of the proceeds of sales made by him, abutting owners, if in the proper exercise of his law- and discharge of the guardian and sureties on his ful discretion, and for the sole purpose of improving bond, is a ratification of his acts. No action cau be the highway, he runs a ditch in front of their premi- maintained by a ward to recover lands sold by his ses which they have to bridge in order to reach the guardian unless the action is commenced within five road. The injury, if any, which a lawfully constructed years next after the ward comes of age. It is claimed ditch occasions an abutting owner, is damnum absque on Didier's behalf what the five-years' limitation of the injuria. Acts done by authority of a valid statute, decedents' act only applies in case the sale was valid. and with reasonable care, will not support any liabil. There would seem to be no necessity for a statute of ity for resulting damage. (2) Abutting owners have limitations to protect a title valid in itself. The statthe right of access to the highway, aud one who has ute without doubt, was intended to apply to all sales been cut off therefrom by the running of a ditch, or made by a guardian,executor,or administrator. Spencer the improvement of the road, may bridge the ditch, v. Sheehan, 19 Minn. 338 (Gil. 292); Miller v. Sullivan, 4

ABUT

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