Imágenes de páginas

tion of the depositor, not communicated to the bank, surety cannot be deprived of it. Hence if the bank is of no importance. While the right of the bank to permit the stock of such debtor to be sold, and its procharge the notes against the deposit is not disputed, ceeds applied to discharge a debt due to the bank by it was at the same time contended that it was under the same debtor, which originated by a note of subseno duty to do so, and that its failure to make such ap- quent date, the surety in the first transaction will be plication did not discharge the indorser.

thereby discharged.” It is to be observed that the bank was the owner of Ramsay v. Westmoreland Bank, 2 P. & W. 163, was a the notes, and vot a mere collecting agent. The differ-suit against a surety. The facts and the law of the ence is obvious. The position of the bank was this: case are sufficiently explained in the following extract It was a creditor of Mr. Young to the amount of the from the opinion of the court: “The note on which notes discounted; it was the debtor of Mr. Young to the suit was instituted had been drawn by William the amount of his deposit, and to that extent was in Johnson and indorsed by John Ramsey; he was then law bound to honor his checks or drafts; it held the a mere surety, and as such entitled to be favored in defendant as security on the notes by reason of his in- the law. The evidence he offered was to prove, and dorsement thereof; the deposit exceeded the notes, would have proved, that a large balance arising on the and it had the undoubted right at the close of bank- sale of real estate of William Johnson was in the hands ing hours on the 28th of August to charge the notes of the sheriff, which was subject and liable to the against the deposit. Was it bound to do so as between judgment of the bank, and would have been obtained the bank and the indorser ?

if due diligence had been used. The case then, if In order to discuss this question intelligently we proved as offered by the plaintiff in error to the court must not lose sight of the peculiar character of a bank below, would have come within the principle stated deposit. The money deposited does not, as is popu- by the present cbief justice in Com. v. Miller's Adlarly assumed, continue to be the property of the de ministrators, 8 S. & R. 457, 'that no rule in equity was positor. It becomes the money of the bank the mo- clearer than that where a creditor has the means of ment it is deposited. The depositor becomes the satisfaction in his hands, and chooses not to retain creditor of the bank, and as before observed, the bank them, but suffers them to pass into the hands of the is his debtor, and is in law bound to honor his drafts principal, the surety can never be called upon.' Here, to to the extent of his deposit. Foley v. IIill, I Phillips, be sure, the bank had not the balance actually in their 399; Bank of Republic v. Millard, 10 Wall. 152; Carr hands, nor did they actually asseut to its passing into v. National Security Bank, 107 Mass. 45. When the de- the hands of Johuson, but they might by using due positor becomes indebted to the bank on one or more diligence, and by doing their duty to the surety, bare accounts, and such debts are due and payable, the bank obtained it, and thus have bad satisfaction pro tanto has the right to apply any deposit he niay have to on their judgment from the proceeds of the real es. their payment. This is by virtue of the right of set-off. tate of the real debtor, and it was their duty to have Where a general deposit is made by one already in- done this. The money thus obtained from the sale of debted to the bank, the latter may appropriate such real estate of Johnson, on which the bank's judgment deposit to the payment of such indebtedness. This was a lien, was actually brought into court. Johnson results from the general doctrine of the application or could not take it out of court, but the bank could bare appropriation of payments. And it may be safely as- done so, and if they did not, they must lose it, for serted that as a general rule, the former may waive the having had the means of payment in tbeir power tbey right to make such application, and allow the depositor could not pass them by and recorer from a surety." to draw out his balance. Whero however the rights of Ramsey v. The Westmoreland Bank was approved in third parties intervene the case is sometimes different. the subsequent case of Sitgreaves y. The Bank, 13 The distinction between the liability of a bank to a Wright, 359, and the same principle has been reccustomer and to a third party is thus defined in Morse ognized and followed in numerous later cases, includ. ou Banks and Banking (2d ed.) 47: “A bank holding ing Fegley v. McDonald, supra. Is it applicable to the a note of a depositor is under no obligation to appro- case in hand? Of this we are iu no doubt. The bank priate a sum sufficient to meet it from funds on de- being indebted to Young when his notes matured in an posit immediately upon its maturity, or indeed at any amount exceediug the notes, the latter had the clear other particular time; they may let the account run right to set off so much of his deposit as was necessary on and take the chance that they will not lose in the to meet the notes. The defendant as surety was enend. But as toward third parties, the obligation upon titled to avail himself of Young's right. It may be ilthe bank is different, and it has been decisively and lustrated thus: If I am the holder of A.'s note inproperly held that the neglect of the bank to make dorsed by C., and when the note matures I am insuch an appropriation of the principal debtor's funds debted to A. in an amouut equal to or exceeding the would discharge the indorsers and sureties.”

note, can I have the note protested and hold C. as inThe rule is well settled that “when a creditor has in dorser? It is true A.'s note is not technically paid, his hands the means of paying his debt out of the but the right to set-off exists, and surely C. may show property of his principal debtor, and does not use it, in relief of his obligation as surety that I am really the but gives it up, the surety is discharged. It need not debtor instead of the creditor of A. If this is so bebe actually in the hands of the creditor. Jl it be within tween individuals, why is it not so between a bank his control, so that by the exercise of reasonable dili- and individuals ? gence he may bave realized his pay out of it, yet vol- Further the note in controversy was payable at the untarily and by supine negligence relinquished it, the bank. An acceptance or promissory note thus payable surety is discharged." Fegley v. McDonald, 8 Nor. is, if the party is in funds, that is, has the amount to 128; citing Com. v. Vanderslice, 8 S. & R. 452; Everly his credit, equivalent to a check; and it is in effect an v. Rice, 8 Harris, 297; Boschert v. Brown, 22 P. F. S. order or draft on the banker in favor of the holder for 372, and other cases.

the amount of the note or acceptance. Etna Nat. This familiar rule applies to banks as well as other Bank v. Fourth Nat. Bank, 46 N. Y. 88. I do not uncreditors. It was held in Kuhns v. The Westmoreland derstand this principle to be disputed. The note Bank, 2 Watts, 136, where it was ruled : “ The lien therefore was a draft on the bank against the deposit which a bank has, by virtue of the seventh section of of the maker. It was the equivalent to a peremptory the act of 21st of March, 1814, upon the stock of its order on the bank to pay, or to speak more accurately, debtor, results for the benefit of the surety of sach to charge the notes against the deposit. And the jury debtor; and such is that resulting interest that the have found that there was no direction on the part of

the depositor to interfere with this. It must be con- sented a check to the bank, signed by B., in which he ceded that if the deposit had been special, or if pre- directed tbe balance of his account to be paid on acvious to the maturity of the note, any arrangement count of his official note. The cashier refused so to aphad been made between the depositor and the bank ply it because of the direction he had received. Held, by wbich the bank had been forbidden to apply the in an action by the bank against P.on the official pote, money in its bands to the payment of these notes, the that veither be nor B. could insist that the amount indorser would not be discharged. As was beld in standing to B.'s credit at the maturity of the pote Bank v. Speight, 47 N. Y. 668: "If before the matu- should be applied to the payment of the note in suit. rity of paper held by a bank against a depositor, au It will be noticed that the official note did not enter arrangement is made by which the bank agrees to hold into B.'s personal account, and that before B.'s check the deposit for a specific purpose, and not to cbarge had been presented at the bank the latter bad applied the vote against it, the bank may be regarded as a trus- his personal deposit in part payment of his personal tee, and the deposit special. In such a case, in the ab- note which had matured. Its right to do so is apparsence of fraud or collusion, an indorser upon such pa- ent. per has no right to require the application of the de- As the principles above indicated control this case, a posit toward the payment of the paper upon its matu- discussion of the remaining assignments is not necesrity."

sary. To avoid misapprehension, it is proper to say Bank of Wilkesbarre v. Legrand, 13 Week. Notes, however that the offers of testimony embraced in the 317, is not in conflict with this view. The precise ques- first three assignments of error were irrelevant, and tion we are considering was not decided in that case. should have been excluded. The bank was a holder There Lowenstein had not sufficient funds in the bank for value, and the facts set forth in the said offers did to pay the note at the time it matured. Subsequently not constitute a defense. But the admission of the he made a special arrangement by which he was to evidence under these offers did no barm, and it is setcontinue to do business with the bank, and it was al- tled law that for immaterial errors this court will not leged the time of payment had been extended. At reverse. Nor is it essential to criticise the admission several times after this he had sufficient money on de- of the testimony in relation to the custom of the posit to pay the note. The court below subsequently Reading banks to charge a note made payable at the entered judgment against the bank upon the ground bank against a deposit standing to the credit of the principally that the indorser was discharged by the ex- maker. Such a mode of dealing could hardly have tension of the time,'which judgment was subsequently the force of a custom considered in its legal sense. reversed by this court. It needs but a cursory exam- But as a course of commercial dealing it was perhaps ination of that case to see that it does not rule this. competent, and at most it merely showed tbat the

Nor do the other cases cited by the plaintiff sustain bauks did what they had a conceded right to do aside his contention. In Bank of United States v. Carneal, from any such custom or usage. 2 Pet. 543, the question was whether the indorser was

Judgment affirmed. discharged by a failure to make demand upon the maker. The note was payable at the bank, the demand was made there, and it was said by Justice COLORADO SUPREME COURT ABSTRACT. Story: “Where a note is payable at a bank it is his (the maker's) duty to be at the bank within the usual CONSTITUTIONAL LAW-GENERAL AND SPECIAL LAW hours of business to pay the same."

-ASSESSMENT UNDER INVALID LAW.-(1) Where a Strong v. Foster, 84 Eng. Com. Law, 201, was not the special city charter cannot be amended by a general case of an indorser, but of one of the makers of a joint law applicable to the whole State, so as to meet the neand several promissory note who claimed to be a cessities of a particular case, then a special law is ausurety. It was at least doubtful whether he was a thorized by the Constitution itsell, and the decision of surety; his position on the note did not make him so, the question as to whether or not a special law is necand there were no funds to the credit of either of the essary is for the Legislature, and not for the courts. makers when the note matured. On the contrary, the In the case of State v. Co, Ct. of Boone County, 50 balance was against them. The court held, under the Mo. 317, the court says: “But who is to decide when circumstances of the case, that the failure of the bank a general or special law will answer the best purpose ? to apply a subsequent deposit to the payment of the It strikes me that the rule in reference to general or note did not discharge the defendant, and intimated special laws is laid down as a guide for the Legislature, the opinion it would uot have discharged him even and the Legislature is to judge of the necessity of the bad he been a surety.

particular case. The Legislature is quite as able to do In the National Mahaiwe Bank v. Peck, 1:27 Mass. this as the courts. The Legislature must in the first 302, it was ruled that: “Where by express agreement, instance exercise their discretion as to the necessity of or by a course of dealing between a bank and one of a special instead of a general act. How can the courts its depositors, a certain note of the depositor is not control that discretion? If a discretion be conceded included in the general account between them, any at all, in my judgment the courts have no right to conbalance due from him to the bank when the note be- trol it. It is agreed that there is no discretion in recomes payable is not to be applied in satisfaction of gard to the passage of certain enumerated laws. They the note, eren for a benefit of a surety thereon, except are inhibited by the letter of the Constitution. When at the election of the bank.” The bauk had discounted the Legislature undertakes to pass these inhibited for B. a note signed by him as treasurer of a town and laws it is the plain duty of the courts to declare them ivdorsed by P., the proceeds of which were to be used unconstitutional.” The above views appear to us to by B. in his official capacity. Neither the note norits be both sound and applicable to the phraseology of our proceeds were made part of B.'s personal account with Constitution. They are affirmed by the subsequent the bank. At the time that note matured the bank cases of State v. Co. Ct. of New Madrid, 51 Mo. 83, held the personal note of B., which would mature the and Hall v. Bray, id. 288. Similar views upon like next day, and which exceeded'the amount then stand- constitutional provisions are announced in State v. ing to the credit of B.'s personal account. As soon as Hitchcock, 1 Kan. 178, and Gentile v. State, 29 Ind. the personal wote matured, the president of the bank 409. (2) A valid assessment cannot be made under an directed the cashier to apply the balance of B.'s ac- invalid law or ordinance, and its constitutionality is count to the personal note. Three days after, P. pre- to be tested not by what has been done under it, but by what it authorizes to be done by virtue of its pro- ford, 1 Wend. 583. He may discbarge a mortgage visions. This is the doctrine of the following cases, (People v. Keyser, 28 N. Y. 226), may make an assignand many others might be cited to the same effect, but ment of a mortgage (Crouin v. Hazeltine, 3 Allen, 324), reference to them will be found in the cases cited: and this court has held that a deed made by one of Stuart v. Palmer, 74 N. Y. 183: Thomas v. Gain, 35 two or more administrators was not void, and not Mich. 155; Davidson v. New Orleans, 96 U. S. 97; subject to attack in collateral proceedings. Osman v. County of San Mateo v. Southeru Pac. R. Co., 8 Sawy. Traphagen, 23 Mich. 80. The following authorities 238; 13 Fed. Rep. 722. Brown v. City of Denver. may also be examined with profit in examining the Opinion by Beck, J.

question raised in this case: Bonifaut v. Greenfield, 1 [Decided April 1, 1884.)

Cro. 80: Dike v. Ricks, 4 Cro. C. 335; 1 Sugd. Pow. (6th Lond. ed.) 143, 144; Pitt v. Pelham, Ch. Cas. 178;

Wardwell v. McDowell, 31 III. 364; Clinefelter v. MICHIGAN SUPREME COURT ABSTRACT. Ayres, 16 id. 329; S. C., 20 id. 465; Conklin v. Edger

ton, 21 Wend. 430; Roseboom v. Mosher, 2 Denio. 61; LANDLORD AND TENANT-MINING LEASE-TRADE

Wills v. Cowper, 2 Ham. 124; Powell Devises, 196, 197 ; FIXTURES-RIGHT OF REMOVAL.-As between landlord

Judson v. Gibbons, 5 Wend. 224. Vernor y. Coville. and tenant of a mining lease, engines and boilers Opinion by Sherwood, J. erected by the tenant on brick and stone foundations, [Decided June 25, 1884.) and bolted down solidly to the ground, and walled in

EJECTMENT-OUSTER-QUESTION OF FACT-BURDEN with brick arches; and dwellings erected by the ten

OF PROOF.-Ouster is a question of fact, which it is ant for miners to live in, standing on posts or dry the province of the jury to determine, and the facts and stone walls piled together-where such machinery and circumstances which went to establish the ouster buildings were intended to be merely accessory to the ought, under proper instructions from the court, to be mining operations under the lease, and when there was

submitted to the jury. Taylor v. Hill, 10 Leigh (Va.), no intention in affixing them to the realty to make 457; Cummings v. Wyman, 10 Mass. 465; Purcell v. them accessory to the soil, and where they can be re

Wilson, 4 Gratt. 16; Harmou V. James, 7 Smedes moved without material disturbance to the land, are

& M. 111; Blackmore v. Gregg, 2 Watts & S. 182; Carregarded as “trade fixtures,” and may be removed at

pentier v. Mendenhall, 28 Cal. 484; Clark F. Crego, 47 or before the termination of the lease. Conrud v.

Barb. 599. And the burden of proof rests upon Saginaw Mining Co. Opinion by Champlin, J.

the party alleging it. Newell v. Woodruff, 30 Cond. [Decided June 25, 1884.]

492; Van Bibber v. Ferdinand, 17 Md. 436. But when EJECTMENT-ADVERSE POSSESSION-ESTOPPEL-FOR- both parties rely upon ouster, it is incumbent on the MER SUIT.-(1) A title to land may be gained by its ad. / plaintiff to prove it within the statute of limitations. verse possession for over twenty years by a party If he introduce evidence tending to prove it within claiming under color of title. (2) Where an ejectment that period, then the burden is shifted to the defendsuit to try the title to land was determined in favor of ant to prove an actual vuster which occurred anterior a plaintiff, and after its decision the defendant con- to that period. Highston v. Burdette. Opinion by veyed the property and his grantee afterward ob-Champlin, J. tained the possession of the land, in an action for [Decided June 25, 1884.] ejectment against the latter's grantee, held, that he

NEGLIGENCE-CONTRIBUTORY-PERSONAL INJURY. was estopped from denying the plaintiff's title because of the former suit by his grantor. Scheetz v. Fitz.

-Where a person in crossing a railroad track was water, 5 Penn. St. 120; Melvin v. Proprietors, etc., 5 facing, and which she must have seen if not acting

struck and injured by a passing engine which she was Meto. 15; Sawyer v. Kendall, 10 Cush. 241; Williams beedlessly, held, that she was guilty of contributory v. Dongan, 20 Mo. 180; St. Louis v. Gorman, 29 id negligence. In an action against a railroad company 593; Shaw v. Nicholay, 30 id. 99; Holtou v. Whitney, 30 Vt. 405; McNeely v. Langan, 22 Ohio St. 32; Nelson

for a personal injury it is incumbent upon the plaiutiff v. Trigg, 4 Lea, 705. Whitford v. Crooks. Opinion by but that she was in the exercise of ordinary care at the

to slow not only that the defendant was negligent, Cooley, C. J.

time of the accideut; and if this is not shown it is im(Decided June 25, 1204.]

material that she was rightfully upon the defendant's WILL-EXECUTORS-JOINT POWER-RENUNCIATION grounds at the time. Pzolla v. Michigan Cent. R. Co. -EXECUTION BY ONE.—When an executor acts under Opinion by Champlin, J. instructions in a will, rather than under the general [Deoided June 25, 1884.] powers accorded by statute, and it appears that the testator had confidence in him, and intrusted much to his discretion, nothing but imperative duty can excuse a court for interfering with his acts. Where two

NEBRASKA SUPREME COURT ABSTRACT. persons are named in a will as executors," with full power and authority to sell and convey real estate," CORPORATION -CAPITAL STOCK ASSESSMENTS.and one of such persons renounces the trust, the other | Where articles of incorporation fix the amount of the may, under the provisions of section 5844 of Howell's capital stock the entire amount must be subscribed beStatutes, execute the power, and a contract executed fore a stockholder is liable to assessment for the acby him alone to sell and convey such real estate is complishment of the main object of the corporation, valid. Dyer, 23; 11 Vin. Abr. 271; Bac. Abr. D. 1; 2 unless the articles otherwise provide or there is a Williams Ex'rs, 810; Jacomb v. Harwood, 2 Ves. 267; waiver of the condition. Salem Mill-dam Co. v. Ropes, Wheeler v. Wheeler, 9 Cow. 34; Bogert v. Hertell, 46 Pick. 23; S. C., 9 id. 195; Cabot, etc., Br. Co. v. ChaHill, 492, 503; Weir v. Mosher, 19 Wis. 311; Herald v. pin, 6 Cush. 53; Shurtz v. S. & T. R. Co., 9 Mich. 259; Harper, 8 Blackf. 170; Dominick v. Michael, 4 Sandr. Topeka Bridge Co. v. Cụmmings, 3 Kav. 76; Sommer374; Boughton v. Flint, 13 Hun, 206. ('o-executors and set R. Co. v. Clarke, 61 Me. 384; N. H. C. R. v. Johnco-administrators are regarded in law as but one per- son, 30 N. H. 404; P. & R. I. R. v. Preston, 35 Iowa, 8011, and acts done by one are deemed the acts of all 118; Fox v. Clifton, 6 Bing. 776: Pitchford v. Davis in all matters relating to the personal estate. One may 5 Mees. & W. 2; Fry's Ex'r v. L. & B. S. R., 2 Meto. execute a valid release of a debt. Murray v. Blatch. (Ky.) 323; Estabrook v. Hotel Co., 5 Neb. 76; Boehme

v. Hotel Co., id. 80. See also Livesey v. Omaha Hotel MENT.-(1) If a county attorney neglects or refuses to Co., 5 Neb. 50. Hale v. Sanborn. Opinion by Max- perform any aot which it is his duty to perform, or well, J.

corruptly performs any such duty, he forfeits his [Decided May 29, 1884.]

office, and may be removed therefrom by a civil ac

tion, in the nature of a proceeding in quo warranto, in MORTGAGE-CONDITION TO SAVE HARMLASS-SURETY

the Supreme Court. (2) A civil action instituted in -DAMAGE.-When the condition of a mortgage is to save the mortgagee harmless from the payınent of a

the manner provided in the Code of Civil Procedure debt owing by the mortgagor, for which the mortgagee

for the removal of a county attorney who neglects or

refuses to perform any act which it is his duty to perwas surety, held, that no action could be maintained

form, or who corruptly performs any such duty, on the mortgage until the mortgagee has paid the debt

reaches only to the possession of his office and its emol. or some portion thereof; that is, until actual damages

uments. The criminal prosecution provided for in had been sustained by him. This question was before

section 12 of the Prohibitory Act is an additional or the court in Gregory v. Hartley, 6 Neb. 356, and it was held tbat where a condition or promise is only to in:

cumulative remedy, and in addition to the forfeiture

of office, subjects the guilty official, on conviction demnify and save harmless a party from some conse

thereof in the District Court, to the infliction of a fine quence, no action can be maintained until actual dam

not exceeding $500. (3) Where a county attorney is ages have been sustained by the plaintiff. Stout v. Folger, 34 Iowa, 74; Lathrop v. Atwood, 21 Conn. 117;

charged with neglecting or refusing to perform an act

which it is his duty to perform under the prohibitory In re Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill,

law, or is charged with corruptly performing any such 145; Churchill v. Hunt, 3 Denio, 321 ; Wilson v. Stil

duty, in a civil action to remove him from office, it is well, 9 Ohio St. 467. The plaintiff was merely surety on the note. The debt was not his owu, but that of

not a good defense to answer that the people of his McCoy. This principle is clearly recognized In re Ne

county are opposed to the prosecution of the violators

of the law, and therefore in the exercise of his official gus, supra, and Douglass v. Clark, 14 Johns. 177. In

discretion, he dismissed all cases of this class brought the case last cited the condition of the bond was that

by him. (4) If a law enacted by the Legislature has “if the said Sylvester Clark, above bounden, shall well and truly pay off and discharge said bond, and save

not the support of public sentiment, this may be,under the said Zebulon harmless, and indemnified from the

some circumstances, a reason for its amendment or

repeal; but in a civil action brought against a county payment thereof, or any part thereof, and from all

attorney to remove him from office for neglecting to costs, damages and charges thence arising to said Zebulon, then the above-written obligation to be null and

perform his duties thereunder, it is not a good defense

for his refusing to attempt its enforcement. State v. void," etc. The court say: “Whether this plea be

Foster. Opinion by Horton, C. J. good or not will depend upon what is deemed the true construction of the bond. If the defendant is to be EVIDENCE-PAROL TO SHOW AGENCY.-After a considered as undertaking to pay off and discharge the

written agreement is executed, it is competent to recited bond, the plea is bad; but if it be considered a

show by parol evidence that both of the contracting bond of indemnity to save the plaintiff harmless from parties were agents for other persons, and acted as such all damages by reason of the recited bond, the plea is agents in making the contract. This evidence in no good. 1 Saund. 117, n. We are inclined to

way contradicts the written contract. Butler v. Kaulthink the good sense and sound interpretation back, 8 Kans. 668; Wolfley v. Rising, 12 id. 535-538; of the bond is according to the latter construction.

Railway Co. v. Thatcher, 13 id. 564; Dykers v. Town* * * This construction is much strengthened

send, 24 N. Y. 61. Nutt v. Humphrey. Opinion by by the circumstance that it appears in the recited | Horton, C. J. bond that the defendant was not the person who was to pay the duties. They were due from Rice, with SALARY-PROSPECTIVE STATUTE.-(1) A county office whom the defendant was bound." In Thomas v. is not a contract, and the incumbent is not protected Allen, 1 Hill, 145, it is said the bond in suit was more in it by the prohibition of the Federal Constitution than a bond of indemnity, because it bound the de- against the impairment of the obligation of contracts. fendant to pay off the plaintiff's debt, and the breach A county officer has no such vested interest in the was well assigned by alleging that the obligor had not salary as will prevent the Legislature from diminishpaid at the day. In that case it is said that Douglass ing it during his term of office. Public offices in this v. Clark was silently overruled in Port v. Jackson, 17 State are mere agencies for the benefit of the peopleJohns. 239. Forbes v. McCoy. Opinion by Maxwell, J. not contracts on their part with the officeholder for [Decided May 29, 1884. ]

his benefit. Therefore there is no contract, express or implied, between a public officer and the State or

county whose agent he is. Officeholders have no agreeKANSAS SUPREME COURT ABSTRACT.*

ment or contract that they shall receive any particular JANUARY TERM, 1884.

compensation for the term they hold office. Their CARRIER-BAGGAGE- LOSS. - Where the duly au

terms are fixed with the view to publio utility and thorized agent of a railroad company receives personal

convenience, and not for the purpose of granting the property to be transported as baggage, the railroad

emoluments or salary during any fixed period to the oompany must account for such property as baggage,

officeholder. The Legislature may exercise its control although in strict language it might not be baggage.

by increasing or diminishing the salary or emoluments Where personal property is received by a railroad

of an office, except in those special cases in which the company to be transported as baggage, and while it is

Constitution has forbidden its exercise. State Const., in the possession of the railroad company, to be so

art. 3, § 13. Except in those special cases, the Legislatrausported, it is lost or stolen, held, that the railroad

ture has the absolute power over the compensation of company is responsible to the owner thereof for its

all public officers. Therefore there was no contraot, loss. Chicago, etc., Railroad Co. v. Conklin. Opinion express or implied, between the plaintiffs and Rush by Valentine, J.

county or the State of Kansas regarding the compen

sation of their officers, and the plaintiffs had no propOFFICE AND OFFICER-FORFEITURE, CUMULATIVE

erty in the future compensation attached to them. REMEDY-FAILURE TO PERFORM DUTY-PUBLIC SENTI

Couper v. Mayor of the City of New York, 5 N. Y. * Appearing in 32 Kansas Reports.

285; Farwell v. City of Rockland, 62 Me. 296; State v.


Davis, 44 Mo. 129; Hyde v. State, 52 Miss. 665. (2) contract on the part of the defendant to sell and conWhere a law is enacted diminishing the salary of a vey to the plaintiff the above described land, the recounty officer during his official term, and such dimi- ceipt being indefinite and uncertain as to the considernution applies after the law takes effect, the law is ation, and indefinite and uncertain in other particuprospective, and not retroactive. Harvey v. Comrs. of lars. Holmes v. Evans, 48 Miss. 247; S. C., 12 Am. Rush County. Opinion by Horton, C. J.

Rep. 372; Minturn v. Baylis, 33 Cal. 129; McGuire v. RAILROAD-KILLING STOCK-FAILURE TO FENCE.

Stevens, 2 Am. Rep. 649. Indeed such indefiniteness Where a person pastures a bull over one year old on his

and uncertainty in the contract, where the statute of own inclosed premises, through which a railroad is

frauds requires that the contract should be in writing, constructed and operated, and the railroad company

would probably defeat any action upon the contract. has not inclosed its road with a fence, as required by

Atwood v. Cobb, 26 Am. Dec. 657, 661 et seq., and esthe provisions of the railroad stock law of 1874 (Comp.

pecially 668, 669; Reid v. Kenworthy, 25 Kans. 701; Laws of 1879, ch. 84, art. 2, pp. 784, 785), and the ball is

Patmor v. Haggard, 78 IU. 607; Riley v. Farnsworth, killed by the railroad company in the operation of its

116 Mass. 223; Jordan r. Deaton, 23 Ark. 704; Grafton road, held, that the bull was not so running at large,

v. Cummings, 99 U. S. 100. Neither can the present within the meaning of section 38, article 5, of the act action be maintained, for the reason that the transacrelating to stock (Comp. Laws of 1879, ch. 105), as to

tion would seem to be simply that of an agent selling prevent the owner from recovering for its value under his principal's property to his partner, and virtually to the provisions of said railroad stock law of 1874.

himself, without the knowledge or consent of his prinAnd so held, although tbe railroad company may own

cipal. 1 Pars. Cont. 87; 1 Wait Act. and the strip of land upon which its track is located, and

Def. 245, 246 et seq., and cases there cited; Bain v. where the animal was killed. This case iu principle

Browu, 56 N. Y. 285. Also with respect to certain escomes entirely within the principles announced in the

sential elements and incidents inherent in or connected case of the A. T. & S. F. R. Co. v. Riggs, 31 Kans. 622,

with the action of specific performance, see 3 Pome except that in this case the railroad company alleged roy's Eq. Juris., $ 1405, and cases there cited. Fry v. that it “owned " a strip of land upon which its track

Platt. Opinion by Valentine, J. was located and where the bull was killed; while in the Riggs case the decision of the court was upon the theory that the railway company simply had an ease

MINNESOTA SUPREME COURT ABSTRACT ment over the plaintiff's land where its track was located and where the animal in that case was killed. DAMAGES—MALPRACTICE-LOSS OF SERVICE - YENWe do not think bowever that this difference between TAL ANXIETY.-In an action by a husband for damthe two cases will require a difference between the ages resulting to himself from injuries to his wife two decisions. The bull in the present case was caused by the malpractice of a physician, damages for rightfully pasturing upon its owner's premises, and it loss of service which appears necessarily to result strayed from there upon the defendant's premises

from the nature of the injury may be recovered as simply because of the neglect and wrong on the part part of the general damages, without being specially of the defendant in not inclosing its road with a law- pleaded. Damages for the mental anxiety or the inful fence. In addition to the cases above cited, see the jured feelings of a husband, father or master, if recorfollowing cases: Cressey v. Northern Railroad, 59 N. erable at all in such cases, are to be allowed by the H. 564, and cases there cited; S. C., 29 Alb. L. J. 392; jury as matter of aggravation, upon consideration of Pittsburgh, etc., R. Co. v. Smith, 38 Ohio St. 410; S. the facts and circumstances of the case, and not upon C., 13 Am. & Eng. Rid. Cases, 579; B. & M. R. Co. v. the statements of witnesses as to the amount of such Brinkman, 14 Neb. 70. Gooding v. Atcheson, etc., R. damages. Stone V. Evans. Opinion by VanderCo. Opinion by Valentine, J.


[Decided June 30, 1884.] FRAUDS-UNCERTAINTY IN TERMS-AGENT SELLING TO NEGLIGENCE - EVIDENCE - CONTRIBUTORY NEGLISELF.—The plaintiff, James B. Fry, alleged in his pe- GENCE-QUESTION FOR JURY.-Along and near a plantition in substance that the defendant, Alexander ing-mill, and within twenty feet of it, defendant laid Platt, owned section 1, township 25, range 14, in Wood. a spur track for the purpose of loading and uploading sou county, Kansas, and that the defendant, through lumber, eto., at the mill. A shed extended from the his duly authorized agent, Thomas M. Eads, sold the mill proper to within four feet of the track. There same to the plaintiff for the sum of $3,200, payable as were several planers in the mill. The lumber was fed follows: $50 cash down ; $1,366.66%% on the execution into tho mill on the side way from the track, and and delivery to the plaintiff of a good and sufficient | passed through the planers at right angles and toward warranty deed for the land; and the remainder in two the track, and within a few feet of it. At each planer equal payments as follows: $1,066.66% payable in one was employed a man who received the board as it year from the date of the delivery of the deed, and came from it, carried it across the track to be piled up $1,066.66% payable in two years from the delivery of near the traok convenient for shipment, and then rethe deed; the deferred payments to be secured by turned for another board, the whole distance thus notes and mortgage on the real estate, to bear inter- traversed being very short, and his employment reest at the rate of 7 per cent per annum from date. The quiring his crossing and recrossing the track conplaintiff further alleged in his petition that he paid the stantly. The land on which the lumber was piled befirst payment of $50. On the trial it was shown that longed to the defendant. The defendant knew of this Thomas M. Eads was the agent of the defendant for mode of conducting the business, and this use of the the sale of said laud; that the plaintiff paid Eads the land and track by the mill-owner was, with its consent $50; and that Eads executed and delivered to the and permission, express or implied. The planers made plaintiff the following receipt, to-wit: “Yates Center, 80 much noise as to prerent a person from hearing an Kans., June 13, 1883. Received of J. B. Fry $50, for approaching car. This spur track was not used for the part payment of purchase-money for section 1, towns general and regular business of the road, but only to ship 25, range 14, Wooason county, Kans. T. M. Eads, set in such cars as were needed to be loaded or un agent for Alexander Platt." Held, that such receipt is loaded at the mill or factory, and these were not set in not such a contract in writing within the statute of at regular times, but only as occasion required, at Irauds as will authorize the specific enforcement of a irregular intervals. On the occasion of the accident

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