« AnteriorContinuar »
Dill. 340; Good v. Norley, 28 Iowa, 188. This case was name, if there was either a previous parol authority or overruled in Boyles v. Boyles, 37 id. 592; but in our a subsequent parol adoption of the act. 3 Kent Com. view the opinion in 28 id. is the better law. Holmes 48; Skinner v. Dayton, 19 Johns. 513; Cady v. Shep7. Beal, 9 Cush. 223; Norton v. Norton, 5 id. 524; herd, 11 Pick. 405, 406; Bond v. Aitkin, 6 Watts & S. Arnold v. Sabin, 1 id. 525; Howard v. Moore, 2 Mich. 165. And a deed executed by a partner in the firm 226; Coon v. Fry, 6 id. 506. Seward v. Didier. Opinion name is effectual to convey all his interest. Clement by Maxwell, J.
v. Brush, 3 Johns. Cas. 180; McBride v. Hagan, 1 Wend. (Decided May 27, 1884.]
326; Nunnely v. Doherty, 1 Yerg. 26; Waugh v. CarLIMITATIONS-PROMISE TO PAY - REVIVES - - RIGHT
riger, id. 31; Morris v. Spence, 4 Harr. (Del.) 428; TO OPEN AND CLOSE.-(1) A writing sigued by the party
Jackson v. Stanford, 19 Ga. 15. Therefore had each as follows: "I am sorry that you have had to pay the
partner executed deeds in the firm name, without aunotes of Frank Pillond and myself, upon which you
thority from his copartners, to purchasers of lots, the were surety for us. I cannot at this time pay you the
purchasers would have acquired the title of all the money, but propose to pay you my share, which I am
partners. The same result would follow from the extold is about $413. I hope to be able to pay you soon,
press authority from such partner, conferred upon but will let you know in a few days what I can do,”
the president and secretary, to execute deeds in the held to take the debt out of the statute of limitations.
name of the copartnership. That this authority was (2) A partial payment, acknowledgment of the debt,
given, not only in the articles of association, but by a or promise to pay, made after the debt is barred, will
separate irrevocable power of attorney by each stockrevive it. (3) A defendant is not entitled to the open
holder and wife, is clearly established. Batty v. Adams ing and closing on a trial, unless he by his answer, ad
Co. Opinion by Maxwell, J. mits the allegations of the plaintiff's petition, and re- [Decided May 29, 1884.] lies entirely upon an affirmative defense. Rolfe v. Pillond. Opinion by Reese, J. [(1) See 35 Am. Rep. 576; 30 Eng. Rep. 207. (2) 22 Eng. Rep. 739.- ED.)
MISSOURI SUPREME COURT ABSTRACT.* [Decided May 28, 1884.] JOINT-STOCK COMPANY –
ECCLESIASTICAL LAW-DECISIONS OF CHURCH CONORGANIZATION TO SELL
CLUSIVE--LIBEL--CONSTITUTIONAL LAW--PUBLICATION TOWN LOTS-DEED.-Certain owners in severalty of a tract of land laid the same off into a town-site, and
OF LIBEL.–(1) It is the established doctrine that in organized a company to sell the lots. There was no
matters purely ecclesiastical, not affecting property conveyance to the company of the interests of the sev
rights, the decisions of the proper church judicatories eral owners of the land, but each shareholder received
made in good faith are conclusive upon civil tribunals. his quota of stock, and the articles of the association The provision of the Constitution ($ 10, art. 11) that the provided that deeds for lots sold were to be executed courts of justice shall be open to every person, and cerby the president and secretary. Held (1) to be a joint- tain remedy afforded for every injury to person, propstock company; (2) that as each partner had author
erty or character, in no manner alters this rule. It ized a conveyance by the president and secretary, his
means only that for such wrongs as are recognized by
the law of the land the courts shall be open and afford & title passed by such deed. In Fereday v. Wightwick, 1 Russ. & M. 45, it is said that all property acquired remedy, Harmon v. Dreher, 1 Speers Eq. 87; Robertfor the purpose of a trading concern, whether of a
son v. Bullions, 9 Barb. 134; Shannon v. Frost, 3 B. personal or real nature, is to be considered as partner Penn. St. 282; State ex rel. v. Farris, 45 Mo. 183; Wat
Monr. 261; German Reformed Church v. Seibert, 3 ship property, and is to be applied accordingly in satisfaction of the demands of the partnership. Fall River,
son v. Garvin, 54 id. 364. (2) The plaintiff, a member etc., Co. v. Borden, 10 Cush. 458. But it is said that
of the Presbyterian Church, was tried by a session of there has been no conveyance of the legal title by the
the church in his absence, and without notice to him, individual members of this company; hence they still
upon a charge preferred by the pastor, who was a hold the legal title to said lots. Real property ac
member of the session, that plaintiff had made false quired, with partnership funds for partnership pur- he was excommunicated by resolution of the session.
and defamatory statements concerning the pastor, and poses is regarded in equity as personal estate, so far as the adjustment of partnership rights and payment of Held, that unless the charge was false, and the mempartnersbip debts are concerned. In the view of a
bers of the session maliciously, falsely or colorably court of equity it is immaterial in whose name the
made the proceedings against plaintiff a pretense for
covering an intended scandal, they had not laid them legal title to such property may be taken, whether in
selres open to action for libel. Farnsworth v. Storrs, the name of one or all the partners, as the person holding the legal title does so for copartnership pur
5 Oush. 412; Streety v. Wood, 15 Barb. 105; Shurtleff
Stevens, 51 Vt. 514; S. C., 31 Am. Rep. 698. And the poses. Dupuy v Leavenworth, 17 Cal. 263: Buckley v. Buckley, 11 Barb. 45; Kendall v. Rider, 35 id. 100. In
burden of proving express malice is upon the plaintiff. Fowler v. Bailey, 14 Wis. 140, it is said: "It is a fa
Shurtleff v. Stevens, supra; Town. Sland. 386; 2 Add. miliar principle of the law of partnership that when Torts, 931; Bradley v. Heath, 12 Pick. 163; Van Wyck partners intend to give real estate the character of
V. Aspinwall, 17 N. Y. 190; Lewis v. Chapman, 16 id. partnership property, and when they use it and treat Colby, 46 N. Y. 427; S. C., 7 Am. Rep. 360. (3) The
369; Vanderzee v. McGregor, 12 Wend. 515; Klink v. it as such, then it will like all other assets of the firm
clerk of the session entered the resolution of excombe applied to the payment of the partnership debts,
munication and a preamble accompanying it upon the notwithstanding the paper title may happen to be in
minute book of the session, exhibited them to memone partner, or appear to be in all as tenants in common." Fairchild v. Fairchild, 64 N. Y. 471. But bers of the sessiou for their signature, and sent plaintwhile real estate purchased with partnership funds iff a written copy, and the pastor read both preamble
and resolution to the congregation in church. Held, and held as partnership property will be listed as per
that these acts did not of themselves amount to a pubsonal property, yet ordinarily in the absence of ex
lication of a libel, or furnish a foundation for an action press authority, one partner cannot convey the whole against either clerk or pastor. Landis v. Campbell
. title to real estate unless the entire title is vested in him. Chester v. Dickerson, 54 N. Y. 1; Van Brunt v.
Opinion by Henry, J. ( See Isham v. Fullager, 14
Abb. N. C. 363.-ED.) Applegate, 44 id. 544. But an absent partner may be bound by a deed executed by a copartner in the firm
*To appear in 70 Missouri Reports.
--- RESTRICTING LIABILITY - DUTY AS TO Davis v. Taul, 6 Dana, 51; Richey v. Johnson, 30 PROVIDING TRANSPORTATION.-(1) A contract by which Ohio, 288. Huntress v. Place. Opinion by Field, J. a common carrier undertakes to relieve himself of all (Decided June, 1884.) liability for damages occasioned by any delay in trans
CONVERSION-INSTRUCTIONS--EXCEPTION TO CHARGE. portation and to impose them upon the shipper, will be effectual to protect the carrier only against the con
- The auditor's reports find that the defendant con
verted to his own use the chattels specified in the decsequences of delays vot caused by his owu negligence. laration, and that he " owes the plaintiff upon the raHarvey v. Railroad Co., 74 Mo. 541; Sturgeon v. Rail
rious items of account the sum of money respectively road Co., 65 id. 569; Rice v. Railroad Co., 63 id. 314; St. Louis, K. C. & N. Ry. Co. v. Cleary, 77 id. 634. (2) opposite each item,” setting forth a sum certain iu reIt is the duty of a common carrier to provide sufficient spect of each. These words plainly import that the facilities and means of transportatiou for all freight the auditor does not find that fact in terms, and that
goods belonged to the plaintiff; and the objection that which it should reasonably expect will be offered, but his phraseology is inapt, is too refined, even if it were it is not bound to provide in advance for extraordipary occasions, por for an unusual influx of business
open here upon exceptions to the refusal to recommit
or to the admission of the reports in evidence. Butwhich is not reasonably to be expected. (3) If he re
terworth v. Western Assur. Co., 132 Mass. 489. Or to ceive property for transportation without any agree
the refusal to rule upon the sufficiency of the plaint. ment to the contrary, he thereby undertakes to carry iff's evidence to maintain the action, or to direct a and deliver it within a reasonable time, regardless of
verdict before the whole testimony was closed on both any extraordinary or unexpected pressure of business upon bim. Dawson v. Chicago & Alton R. Co. Opin- sides. Wetherbee v. Potter, 99 Mass. 354; Kingsford
v. Hood, 105 id. 495. At the close of the argument for iou by Hough, C. J.
the defendant his counsel presented twenty-three reMUNICIPAL CORPORATION-NUISANCE - POWER TO quests for instructions, but the court declined to rule ABATE.-Power conferred upon a municipal corpora- upon them on the ground that they were not seasonably tion to abate nuisances is conferred for the public presented, at the same time saying, that at the close good, and not for any private corporate advantage of the charge, the counsel could ask for such further and for the failure of its officers to properly exercise instructions and except to such parts of the charge as he the power the municipality is not liable. Citing Mur- saw fit. At the end of the charge the court reported taugh v. St. Louis, 44 Mo. 479. Armstrong v. City of that if there were matters which counsel conceived Brunswick. Opiviou by Norton, J.
had been omitted, they might call attention to them. CONTRACT-PARENT AND CHILD - SERVICES REN
This course was exactly in accordance with the decisDERED-PROVISION IN WILL.-(1) Valuable services
ion in Ela v. Cockshott, 119 Mass. 416, 418, as generally which would as between strangers raise an implied understood and acted upon. We do not see sufficient promise to pay for them, when performed for a person
reason for disturbing the now settled practice which in loco parentis will not of themselves have that ef
leaves it within the discretion of the court, when & fect; and this whether they are performed wholly
multitude of requests are presented after the arguduring minority or partly after majority. Guenther
ments have begun, to throw the burden on counsel of v. Birkicht, 22 Mo. 439; Hart v. Hart, 41 id. 431;
calling attention to points not dealt with, at the end of Smith v. Myers, 19 id. 443. (2) In an action against the
the charge, with the right of course to except to such estate of a deceased person for services performed for
portions of the charge as they deem erroneous. The him during his life-time, held, that his will making
defendant's general exception to the charge, without provision for the plaintiff was properly admitted in
pointing out particulars, was bad. Curry v. Porter, evidence as corroborative of the claim made in defense
125 Mass. 94. McMahon v. O'Connor. Opinion by that the position of plaintiff was that of a member of
Holmes, J. the family of the deceased, and as bearing upon the
[Decided May, 1884. ] supposed undertaking to pay wages for his services. WILL-MARRIED WOMAN-REVOCATION-SUBSEQUENT Cowell v. Roberts. Opinion by Martin, Comr.
MARRIAGE.-It has been settled at common law that the marriage of a femme sole revokes her will. In case of a man it is equally well settled that marriage alone
does not revoke his will, but that marriage and the MASSACHUSETTS SUPREME JUDICIAL
birth of a child do, 1 Jar. Wills, 122; Warner v. Beach, COURT ABSTRACT.
4 Gray, 162. If we were under po restraint, we might
well hesitate to hold that since testamentary capacity WILL-GIFT-PER CAPITA.-In this case the words of has been given to women, her will made when sole the will are: “The residue and remainder of the prop- should be revoked only by marriage and the birth of erty left by my said wife shall be equally divided a child, as in case of a man, for the sake of uniformity among my brothers and sisters and their heirs, after only, when we are inclined to think a better rule having paid the two last named legacies." The argu- would be that in case of a man his will should be rement of the appellant is that this is a gift to a class; voked by marriage alone. But such a rule can only be that only those of the class take who survive the testa- introduced by the Legislature. In England, by 1 Vic., tor; and that the words "and their heirs” are words ch. 26, $ 18, and in many of the States in this country, of limitation, and were used to express the intention it has been provided by statute that the wills of both of the testator to give the absolute property. The ar. men and women shall be revoked by marriage. See colgument of the appellees is, that by the use of the plu- lection of statutes in 1 Jar. Wills, 122, notes to Bigeral word “sisters” the testator must have intended low's ed. But we are of opinion that the question now not only his sister who was living, but his sisters who before us has been so far settled by statute as not to had deceased ; and as these last could not take, the admit of change by construction. R. S., ch. 127, 88, testator intended that their heirs should take the after providing that no will shall be revoked unless by shares appropriate to them in the division. This ques- burning, tearing, etc., or some other writing executed tion is one of difficulty, but we are inclined to the in the manner required in the case of a will, goes on view of the appellees, for the reasons given in Gow- as follows: “But nothing contained in this section ling v. Thompson, L. R., 11 Eq. 336. See also Barnaby shall prevent the revocation implied by law from subv. Tassell, id. 363: In re Sibley's Trust, 5 Ch. sequent changes in the condition or circumstances of D. 494; 22 Eng. R. 246; Widgen v. Mello, 23 Ch. D. 737; the testator." It is not apparent that an entire revo
cation by implication of law results from any change wealth a foreign corporation, unless jurisdiction is of condition or circumstances except that of a subse- given over it by statute, or unless it voluntarily apquent marriage. See discussion in Warner v. Beach, pears, cannot be sued at law except by means of an at4 Gray, 162. This clause as to implied revocations was tachment of its property. Andrews v. Michigan Cenfirst introduced in the Revised Statutes, ch. 62, $ 9. tral Railroad, 99 Mass. 534; National Bank of ComThe other provisions as to revocation were substan- merce v. Huntington, 129 id. 444. The service of protially taken from section 2 of chapter 24, of the acts of cess in this suit was not a legal service upon the cor1783. The commissioners in their note to this section poration, as there is no statute authorizing such a sersay: “The clause as to implied revocation recognizes vice; at the most it was only equivalent to notice of and adopts the existing law as established and under- the suit. It seems that the law is otherwise in Engstood among us." And their further discussion of this laud and in some other jurisdictions. Newby v. Von subject shows clearly that they had in mind the rule Oppen & Colt Manuf. Co., L. R., 7 Q. B. 293; 1 Eng. of the common law, that in case of a man, marriage R. 323; Baltimore & Ohio Railroad v. Wightman, 29 and the birth of a child, and in the case of a woman, Gratt. 431. A corporation may be decreed specifically marriage alone, revoked a will previously made. We to perform a contract, Jones v. Boston Mill Co., 4 are of opinion that this provision, as to implied revo- Pick. 507. And this court has jurisdiction in equity to cations, from its language and the reasons given for its compel the assignment of letters-patent. Binney v. introduction, has substantially the force of an express Annan, 107 Mass. 94. It does not appear that the perenactment of the rules of the common law, which we sonal chattels cannot be replevied, and as they are are not at liberty to change, even if the reason for the within the Commonwealth, if they are in the possesrule, in case of a woman, no longer exists. This was sion of any one, they must be in the possession of some the view taken in Brown v. Clark, 77 N. Y. 369, upon a person within the Commonwealth, who could be similar question under a statute of New York. We served with process and compelled to deliver up the are therefore of opinion that the will of Susan E. Ham- chattels if the plaintiffs are entitled to the possession mond was not properly admitted to probate. Swan v. of them. No such person has been made a party deHammond. Opinion by Colburn, J.
fendant. So far as the bill asks for an assignment of [Decided Oct. 24, 1884.]
letters-patent it asks for a personal decree against the CORPORATION-BENEVOLENT--SUSPENSION OF MEM
defendant. Whatever may be the extent of the jurisBER-NOTICE.—The plaintiff objects that the notice of
diction of the court over all property and all persons his suspension was invalid, because it contained only
within the Commonwealth, it has never been held to a printed fac simile of the seal of the lodge, and the
extend to a foreigu corporation, not made by statute constitution of the defendant required that it be un
amenable to process, for the purpose of compelling it der the seal of the lodge. The provisions of the consti
specifically to perform a contract by executing a writtution are not fully set out, and we are therefore una
ten assigument of letters-patent, unless the corporable to determine whether, by the constitution, the
tion voluntarily submits itself to the jurisdiction. presence of the seal is made any thing more than a
The rights conferred by letters-patent have no special matter of form, or whether a printed fac simile of the
locality within the Commonwealth; they exist as well seal is not what was intended. There is no evidence
in Maine, where the corporation was created, as in that Karcher was misled by the notice, or that it was
Massachusetts. Carver v. Peck, 131 Mass. 291. We not in all respects as effectual in giving him informa
think this case is not within the purview of the Public tion as if it had contained an actual impression of the
Statutes, ch. 141, $ 22; and that the bill must be disseal of the lodge. So far as appears, this defect in the
missed. Spurr v. Scoville, 3 Cush. 578; Moody v. Gay, notice, if it was a defect, was immaterial. As the con
15 Gray, 457; Felch v. Hooper, 119 Mass. 52; Walling stitution and by-laws of the defendant, or of the Golden
v. Beers, 120 id. 548; Kansas Construction Co. v. ToRule Lodge, are not fully set out, we cannot construe
peka Railroad, 135 id. 34. Desper v. Cont. Water Meter them, but it appears that Karcher was a member of
Co. Opinion by Field, J. (See 15 Eng. R. 270.) that lodge, and was “suspended in usual form;" and
[Decided June, 1884.] it must be assumed that this was done according to the rules of the lodge, and that as a member he was subject to these rules. The evidence offered amounts to
NEW JERSEY COURT OF CHANCERY ABthis, that the lodge, in good faith, and in the manner
STRACT.* prescribed by its rules, suspended Karcher for a cause which unexplained warranted suspension, but for SURETY-ENTITLED TO INDEMNITY-SUIT TO COMPEL which his illness was a justification. It was his duty PRINCIPAL TO PAY.-As a general rule, all that the to exhaust the remedies provided by the society of burety is entitled to against the principal debtor is inwhich he was a member, before appealing to the demnity; in other words, to be made whole. If he pays courts. Chamberlain v. Lincoln, 129 Mass. 70. He was less than the full amount due, or in depreciated cursuspended by the tribunal which he had chosen to de- rency, all he can recover is what he paid, or the value termine the question according to rules to which he of what he gave in satisfaction. He has a right to be assented in becoming a member, and he received reimbursed, but to nothing more. Burge Sur. 359; 2 notice of the proceedings. The action of this tribunal, Dan. Neg. Inst., § 1342; Snyder v. Blair, 6 Stew. Eq. according to its rules, on a question which it bad au- 208. In Fowler v. Strickland, 107 Mass. 552, it was thority to decide, honestly taken, after the requisite held that an accommodation indorser has the same notice to him, cannot be collaterally reviewed in this right to purchase paper on which he is liable that any suit, on the ground that facts existed which, if brought other person has, and that in case he become the purto the notice of the tribunal, would have warranted or chaser of such paper, he is entitled to recover the full required a different decision. Grosvenor v. United amount due without regard to what he paid for it. Society, 118 Mass. 78; Dolan v. Court Good Samari- The surety being entitled to nothing but indemuity, it tan, 128 id. 437. Karcher v. Supreme Lodge Knights follows necessarily from this limitation of his right of Honor. Opinion by Field, J. (See 15 Am. Rep. 24; that until he has paid something for his principal 67 How. Pr. 38; 27 Eng. R. 595.- ED.)
debtor he has no right to demand any thing of him ex(Decided June, 1884.]
cept that he pay his debt to their common creditor. JURISDICTION-FOREIGN CORPORATION-SERVICE ON
This right he may enforce in equity. After the debt -ASSIGNMENT OF LETTERS-PATENT.--In this common.
*Appearing in 38 N. J. Eq. Reports.
for which he is liable becomes due, and after his prin- April 22, 1879, was not “willful, continuous and obsti. cipal has made default, the surety may maintain a suit nate desertion,'' so as to entitle her to a divorce. Wolf in equity to compel his principal to pay his debt. v. Wolf. Opinion by Runyon, Chancellor. Irick v. Black, 2 C. E. Gr. 189; King v. Baldwin, 2
MARRIAGE-DIVORCE-EVIDENCE OF ACCUSED—SUFJohns. Ch. 534. Equity gives this remedy to the surety,
FICIENCY OF EVIDENCE.-(1) While the evidence of the because, as was said by Lord Keeper North, it is
accused parties in actions for divorce, grounded on unreasonable that a man should always have such a
adultery, is, as a general rule, entitled to but little cloud hang over him. Ranelaugh v. Hayes, 1 Vern. 189.
weight, yet in a doubtful case it should be given suffiBut this is his only remedy. Until he pays something cient weight to defeat a divorce. (2) No general rule his principal is under no liability to him, and owes him no duty except to pay his debt to their common
defining what circumstances will constitute sufficient
evidence of adultery can be laid down which will furcreditor. Delaware, etc., R. Co. v. Oxford Iron Co. Opinion by Van Fleet, Vice-Chancellor.
nish a safe guide for every case, yet this much may be
safely said: that the circumstances must be such as INSURANCE-ASSESSMENTS-BY-LAWS-REINSTATING will lead the guarded discretion of a reasonable and MEMBER.—The by-laws of an unincorporated mutual just mind to a satisfactory conviction that the crime insurance association provided that in case a member has been committed. Culver v. Culver. Opinion by bad, for failure to pay an assessment promptly, been Van Fleet, Vice-Chancellor. dropped from the association by the secretary, the board of directors should have power to reinstate him
JUDICIAL SALE-RIGHTS OF PURCHASER-JUDGMENT on his presenting to them a reasonable excuse for such
--COLLATERAL ATTACK.-A court of general jurisdic. failure, and paying the sum in arrear. A member
tion may misconstrue, misapply or plainly disobey the being delinquent, appeared before them and offered a
law in pronouncing judgment, yet so long as its judgsufficient reason for his delinquency, and the board re
ment remains unreversed it unalterably binds the parfused to reinstate him, because they alleged that his
ties and pronounces the law which defines and deterhealth was then precarious. He died very soon after
mines their rights in that particular case. A purchaser ward. Held, that this court might, after his death,
of land sold pursuant to the decree of a court of genexamine into and determine the adequacy of the rea
eral jurisdiction assumes no responsibility for the cor. son so offered, and in a proper case compel the associa
rectness of the legal principles on which the decree is tion to pay the amount of insurance to which the de
founded. All he need do is to see that the court had linquent's widow is entitled. Van Houten v. Pine. jurisdiction of the parties and of the subject-matter Opinion by Runyon, Chancellor.
of the suit, and that the decree pronounced was within
the scope of the pleadings. A record showing these WILL-POWER OF SALE--EQUITABLE CONVERSION.-- facts must be accepted by every domestic tribunal as A testator by his will provided as follows: “On the
an indisputable verity. Even a subsequent reversal of death of my said wife I do give, devise and bequeath the decree will not affect him, for it is a principle of all my estate, both real and personal, to my executors manifest justice, as well as of established law, that hereinafter named, in trust, nevertheless, for the fol- rights acquired by a third person in the enforcement lowing use and purpose, that is, in trust for my chil- of a decree of a court of general jurisdiction, shall endren, to be divided among them, share and share
dure, though the decree be afterward reversed. Rorer alike, as follows: To my sons I direct my said execu- on Jud. Sales, § 431. In such case the injured party tors to pay their respective shares as they arrive at must look for redress to the person who got the the age of twenty-one years; the respective shares of money for the land, and not to the person who paid my daughters I do order and direct my said executors
his money for the land under the sanction of a judi. to hold in trust to pay to them, respectively, the in- cial sentence. So great is the faith imposed in judicial come arising from their respective shares, in half- records that it has been held that a bona fide purchaser yearly payments during their natural lives, free from
at a judicial sale is entitled to hold the land he has the control of any person or persons whatsoever, and
purchased and paid for, though the defendant had beto their own and sole use; and on the death of either fore the sale paid the debt on which the judgment was of my said daughters, to pay the share of such deceased founded, but left the judgment to stand open and updaughter to her heirs at law." Held, that it was quite satisfied on the records. Nichols v. Dissler, 5 Dutch. clear that the testator intended that the land should 293 ; S. C., on error, 2 Vroom, 461. But this case prebe converted into money. The fee is given to the ex- sents no question for discussion. The principle which ecutors. The real and personal estate are blended to- must control its decision is authoritatively settled. gether in the disposition of them, and the executors Chief Justice Beasley, speaking for the Court of Errors are to divide them among the children — to pay the and Appeals, in McCahill v. Equitable Life Assurance sons their shares and the daughters the income of Society, 11 C. E. Gr. 531, said: “The decision of a dotheirs for life. The direction to pay the sons' shares inestic court of general jurisdiction, acting witbin the implies a direction to convert, and so of the direction
scope of its powers, has inherent in it such conclusive to pay the income of the daughters' shares; it implies force that it cannot be challenged collaterally, and a direction to invest, which involves the necessity of such decision definitely binds all persons embraced in converting the land. The following cases are in point: it, unless on objection made to such court itself, or Van Ness v. Jacobus, 2 C. E. Gr. 153; Wurts v. Page, in a direct course of appellate procedure. 4 id. 365; Haggerty v. Lanterman, 3 Stew. Eq. 37; Za
Such judicial act may be voidable, but it is not void. briskie v. M. & E. R. Co., 6 id. 22. The executors un- If even admittedly erroneous, such error cannot be set doubtedly have the power to sell. Belcher v. Belcher.
up against the decree in a collateral proceeding Opinion by Runyon, Chancellor.
founded upon the decree." The petitioners are not MARRIAGE-DIVORCE-DESERTION.-On April 21, parties to this suit, and they cannot therefore chal. 1879, a husband so grossly abused his wife that she lenge the decree by appeal. If they attack it at all, went to her parents' home. The next day he followed they must do so collaterally, and this method of ather there, and calling her out of the house, shot her. tack, it has been settled from the earliest times, is not He then absconded, but was in the summer of 1879 ar- open to them. It is undoubtedly true as a general rule, rested, tried and convicted, and sentenced to impris- that a suitor who seeks relief against an infant deonment in the State prison for five years, where he was fendant must prove his wbole case, and that nothing accordingly confined. He was released after this suit can be taken or admitted against him, either by his was begun. Held, that his absence from his wife since default or on the answer of his guardian ad litem.
Mills v. Dennis, 3 Johns. ('h. 367; Holden v. Hearn, 1 or any other for them." See also Burkholder's ApBeav. 445. Shultz v. Sanders. Opinion by Van Fleet, peal, decided at the present term, 14 Weekly Notes, Vice-Chancellor.
234. We might multiply authorities upon this point, but the law is too well settled to require it. Held,
that the moiety of the income from the whole of the PENNSYLVANIA SUPREME COURT
residue as provided by the agreement being possibly ABSTRACT.
more to the widow's advantage than the whole income
from one half the residue of the estate as set apart, it ASSIGNMENT-PARTIAL — MUNICIPAL CORPORATION could not be said that she has no standing to object to - CLAIMING THROUGH.-A partial assignment of a a division contrary to the terms of the agreement, and claim upon a municipal corporation is not binding that the estate should therefore be disposed of accordupon the corporation, and the holder thereof ing to the terms of such agreement. Wilen's Appeal. has no claim that he can enforce against the general | Opinion by Paxson, J. creditors of the assignor. Such an assignment is only [Decided Feb. 4, 1884.) an agreement to pay out of a particular fund. Christmas v. Russell, 14 Wall. 70; Gibson v. Stone, 43 Barb.
LIMITATIONS-OPENING JUDGMENT TO LET IN DE285; Rogers y. Hosack, 18 Wend. 319; Trist v. Child, FENSE-EVIDENCE-AMENDMENT.-(1) Judgment hav21 Wall. 447; Jermyn v. Moffitt, 25 P. F. S. 399. In ing been entered upon a judgment note more than ten Mandeville v. Welcb, 5 Wheat. 277, the rule is thus years after date, without complying with a rule of clearly stated by Mr. Justice Story: “When the court requiring a special application to the court, acorder is drawn on a general or a particular fund for a companied by an affidavit, for leave to enter judgment part only, it does not amount to an assignment of that
in such case, it is within the discretion of the court on part, or give a lien as against the drawee, unless he application of defendant to permit such judgment to consent to the appropriation by an acceptance of the
be opened, so that the statute of limitations may be draft.” It is useless to multiply authorities. Asido pleaded. There was a time when the statute was refrom this it has been repeatedly held that upon the garded with so much disfavor that it was said in Brown distribution of an assigned estate, a claimant upon the
v. Sutter, 1 Dall. 239, that the court would never open a fund must claim by and through the assignment. He regular judgment to let in the plea of the statute of cannot claim adversely to it. Okie's Appeal, 9 W. &
limitations, but as was held by Chief Justice Gibson S. 156; Jefferis' Appeal, 9 Casey, 39; Bush's Appeal, 15
in the later case of Ekel v. Snevily in 3 W. & S. 272: P. F. S. 366; Wylie's Appeal, 11 Norris, 196; Strick
“As the plea of that statute has since been considered ler's Appeal, 10 Weekly Notes, 535; Williams Bros.' in Shock v. McChesney, 4 Yeates, 507, and The Bank Appeal, 13 id. 217. In the last case it was said in the
v. Israel, 6 S. & R. 294, to be no longer an unconscionopinion of the court: “An auditor appointed to adjustable one, the rule of practice would hardly be held so and settle the accounts of a voluntary assignee for
now.” And there seems a propriety in the present case creditors is confined to the accounts between the as- of opening the judgment to let in the plea of the statsignee and the cestuis que trust. Third persons claim- ute, inasmuch as the judgment was entered without ing adversely cannot interfere in the settlement, but
leave of court, or the affidavit required thereby, upon must resort to adversary proceedings." Schroeder's a note which upon its face was then barred by the Appeal. Opinion by Paxson, J.
statute. In any event it was a matter in the discre[Decided Jan. 7, 1884.)
tion of the court, and we see no error in opening the WILL
judgment. (2) A judgment as above was entered upon - FAMILY SETTLEMENT - COMPROMISE - CON
a joint and several judgment note against two of the SIDERATION.–A testator by his will gave his widow
makers, the third being dead. The court, on applicathe income of his residuary estate so long as she re
tion of one of the defendants opened the judgment as mained his widow, and in case of her remarriage one
to all of them, and an issue was made up at bar, the half of the income during life. At her death
note to stand for the declaration and defendant to or remarriage, he gave his mother the income
plead the statute of limitations. Held, that plaintiff of the residue for life, and after the death of
should have been allowed to put the note and record the wife and mother, he gave the residue to his broth
in evidence, in order to enable him to follow the same ers and sisters. The mother afterward died, and sub
up with evidence tolling the statute. (3) The above sequently the widow remarried. For the purpose of
offer of evidence being refused, plaintiff offered to avoiding litigation as to the disposition of the one
prove a payment on account by one of the defendants, half of the residue during the widow's life-time, the
and also moved to amend the issue at bar so that it brothers and sisters joined with the widow in an
should stand as against the defendant alone making agreement that the income from the whole residue
such payment. Held, that the amendment should should be paid, one-half to the widow, and the other half to the brothers and sisters share and share alike.
have been permitted. Herman v. Rinker. Opinion by
Paxsou, J. Subsequently at the audit of the executor's account, upon demand by the brothers and sisters for the pay.
[Decided April 14, 1884.] ment of the moiety of the residue before the widow's NEGLIGENCE-INSURANCE-EVIDENCE AS TO KEEPdeath, held, that the agreement being in settlement ING WATCHMAN--FIRE FROM ENGINE.—(1) In an acof a family dispute, was founded on a consideration tion for damages for the loss by fire of the contents of favored in law, and was binding upon the parties a building, brought by several insurance companies in thereto. The law is thus laid down by Mr. Bispham the name of the insured whom they have.indemnified, in his work on Equity at p. 192: “And family com- evidence is admissible to show that the building, promises, especially if they are made in good faith, owned by a third party, was insured in one of the said and with full disclosure, are favored in equity, and companies, and that the policy of insurance contained may be sustained by the court, albeit perhaps rest- a clause requiring the insured to keep a watchman eming upon grounds which would not have been con- ployed, which requirement was not fulfilled. (2) sidered satisfactory if the transaction had occurred Although ice companies have the right to use shavings between strangers.” It was said by Thompson, J., in in their business, yet if they use them in such a careWalworth v. Abel, 2 P. F. S. 370, that “family ar- less manner as to render it possible that they should rangements are favorites the law, and when fairly be set on fire by the engine of a neighboring railroad made, are never allowed to be disturbed by the parties company, they are guilty of contributory negligence;