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gation, on the part of the county, to deliver the bonds, party having made a declaration of trust, the burden which was not discharged by the repealing statute re- of proof is on him thereafter to show that there had lied on. This decision involved no question of Federal been no consideration for it, or that it was void for law, and is not reviewable here. Board of Supervisors other causes. By the terms of a written instrument, of Santa Cruz v. Santa Cruz Railroad Co. Opinion by upon the sale of certain property, a portion of the proWaite, C. J.

ceeds of such sale were to inure to the beneficiary. In [Decided April 14, 1884.]

such a case, whether the payment was made in cash or INSURANCE-LIFE-CONSTRUCTION OF CONDITIONS

shares of stock was immaterial. The trustee, havSTIPULATION-PRACTICE

ing parted with the property, was bound to account to

GENERAL EXCEPTION CHARGE.—(1) The principle laid down in National

the beneficiary for the proceeds. Where there is a Bank v. Insurance Co., %5 U. S. 678, reaffirmed that

failure of suitable trustees to perform a trust, either when a policy of insurance contains contradictory pro

from accident, or from the refusal of the old trustees visions, or has been so framed as to leave room for

to act, or from their original or supervenient incapaceonstruction, rendering it doubtful whether the par

ity to act, or from any other cause, courts of equity ties intended the exact truth of the applicant's state

will appoint vew trustees. Ellison v. Ellison, 6 Ves. ments to be a condition precedent to any binding con

663; Lake v. De Lambert, 4 id. 592; Hibbard v. Lamb, tract, the court should lean agaiust that construction

Amb. 309; 2 Madd. Pr. Ch. 133; Com. Dig.“ Chancery," which imposes upon the assured the obligations of a

4 W.7. No trustee can be more unsuitable than one warranty. The company cannot justly complain of

who not only refuses to act, but denies the trust.

Irvine v. Dunham. Opinion by Woods, J. such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of

[Decided April 14, 1884. ] protecting the company against fraud, and of securing the just rights of the assured under a valid con

UNITED STATES CIRCUIT AND DISTRICT tract of insurance. It is its language which the court

COURT ABSTRACT.* is invited to interpret, and it is both reasonable and just that its own words should be construed most REMOVAL OF CAUSE--JURISDICTION OF CIRCUIT--SEPstrongly against itself. See also Grace v. American ARATE CONTROVERSY.-One of several attaching credIns. Co., 109 U. S. 282. These rules of interpretation, itors joined the others as defendants in a suit to set equally applicable in cases of life insurance, forbid the aside certain judgments obtained against the debtor conclusion that the answers to the questions in the ap- by confession. Held,that they were necessary parties to plication constituted warranties, to be literally and the controversy between the plaintiff and his debtor; exactly fulfilled, as distinguished from representations and that as they were citizens of the same State with which must be substantially performed in all matters the debtor the cause could not be removed to theUnited material to the risk, that is, in matters. which are of States court. Cir. Ct., N. D. III. November, 1883. Pol. the essence of the contract. (2) An applicant for life lok v. Loucheim. Opinion by Drummond, J. insurance was required to state, categorically, whether

JOINT STOCK COMPANY-FRAUD IN ORGANIZATIONhe had ever been afficted with certain specified dis

RIGHTS OF PURCHASERS.—Where the organizers of a eases. He answered that he had not. Upon an ex

joint stock company put in as a part of the capital stock amination of the several clauses of the application, in

certain patent rights, and by fraudulent puffing inconnection with the policy, it was held to be reasou

duced others to purchase the stock at fictitious rates, ably clear that the company required, as a condition

held, that whether the purchasers could set aside the precedent to a valid contract, nothing more than that

ales or not they were not entitled to gain control of the insured would observe good faith toward it, and

the company and pursue their remedy against the make full, direct, and honest auswers to all questions,

fraudulent directors in the corporate name. Cir. Ct., without evasion or fraud, and without suppression,

Dist. Mass. February, 1884. Flagler Engraving Mamisrepresentation, or concealment of facts with which

chine Co. v. Flagler. Opinion by Lowell, J. the company ought to be made acquainted. (3) In the absence of explicit stipulations requiring such an in

RECEIVER-NEGLIGENCE OF EMPLOYEES-NOT LIAterpretation, it should not be inferred that the in- BLE.-A receiver is not personally liable for the torts sured took a life policy with the understanding that

of his employees; it is only when he commits the it should be void, if at any time in the past, he was,

wrong himself that he is personally liable. Were he so whether conscious of the fact or not, afflicted with the liable few men would take the responsibility of such a diseases, or any one of them, specified in the ques

trust; it is only when he himself commits the wrong tions propounded by the company. Such a construc

that he is held personally liable. The proceeding tion of the coutract should be avoided, unless clearly against him as receiver for the wrongs of his employees demanded by the established rules governing the in

is in the nature of a proceeding in rem, and renders the terpretation of written instruments. (4) Going to the

property in his hands as such liable for compensation jary upon one of several defeuses does not preclude

for such injuries. Meara's Adm'r v. Holbrook, 20 the defendant, at a subsequent trial, from insisting

Ohio St. 137; Klein v. Jewett, 11 C. E. Green, 474; upon other defenses, involving the merits, which have

Jordan v. Wells, 3 Woods, 5:27; Kennedy v. Indianaponot been withdrawn of record or abandoned in pur

lis & C. R. Co., 11 Cent. Law J. 89. The railroad comsuance of an agreement with the opposite side. (5) A

pany is not liable for the injuries complained of in the judgment will not be reversed upon a general excep

bill for the reason that they were committed while it tion to the refusal of the court to grant a series of in

was out of possession of the property and had no constructions, presented as one request, because there

trol over it. This conclusion is sustained by principle happens to be in the series some which ought to have

and authority. Ohio, etc., R. C., v. Davis, 23 Ind. 560; been given. Indianapolis, etc., R. Co. v. Horst, 93 U.

Bell v. Indianapolis, etc., R. Co., 53 id. 57; Metz v. S. 295; Rogers v. The Marshal, 1 Wall. 644; Harvey v.

Buffalo, etc., R. Co., 58 N. Y. 61; Rogers v. Mobile & Tyler. 2 id. 338; Johnson v. Jones, 1 Black. 209; Bea

0. R. Co., 17 Cent. L. J. 290; Meara's Adm'r v. Holver v. Taylor, 93 U. S. 46; Beckwith v. Bean, 98 id. 284.

brook, supra. Cir. Ct., S. D. Miss. 1884. Davis v. Youlor v. Life Ins. Co. Opinion by Harlan, J.

Puncan. Opinion by Hill, J. (Decided April 14, 1884.)

SHIP AND SHIPPING-COLLISION-PRESUMPTION-TRUST-BURDEN OF PROOF-" PROCEEDS OF SALE"

FAILURE TO RING BELL.--Where a steamer in motion -REMOVAL AND APPOINTMENT OF NEW TRUSTEE. -A

* Appearing in 19 Federal Reporter.

TO

collides with a vessel properly anchored the presump- fense the judgment debtor must invoke the aid of the tion of fault is upon the former. The burden of proof court upon its equity side. It was claimed in Mills r. in such cases is upon the vessel under way to show by a Duryee, 7 Cranch, 481, that such judgments should be clear preponderance of proof that the collision occurred treated as foreign judgments, and that nil debet was a without fault on her part or through some fault of the good plea in a suit upon such a judgment. But the other vessel. The Batavier, 2 Wm. Rob. 407; The court denied the validity of the plea, alleging that it John Adams, 1 Cliff. 404, 413; The City of New York, rendered the above clause of the Constitution unim8 Blatchf. 194. There being no positive rule nor set- portant and illusory; that the record of the judgment tled usage for a vessel at anchor to ring a bell in thick duly authenticated was conclusive upon the parties, snow, held, such a vessel is not in fault for not ringing and that nul tiel record was the only proper plea. The a bell during a thick squall of snow of a few minutes' counsel for the defeudant in his brief justified his plea duration only. See The Bay State, 1 Abb. Adm. 235, by the authority of tbe case of Bank of Australasia v. 241, note. Where the ferryboat R., running from Hun- Nias, 16 Q. B. 717, where it was held that a plea that ter's Point to Seventh street, New York, her usual the judgment on which the suit was brought was obcourse being near where the bark S. was anchored off tained by fraud would be good; but he did uot advert Nineteenth street, was overtaken after leaving Huu- to the reason why it was good. The reason is dister's Point by a sudden squall of thick snow, and on closed by Lord Chancellor Selborne in Ochsenbein y. passing Twenty-third street was embarrassed by one of Papalier, L. R., 8 Ch. App. Cas. 695, which was an apthe ferry-boats of the Twenty-third street line crossing plication for an injunction to stay a suit at law upon her bows, compelling her to stop and back, and while judgmeut to which the defendant had put in the ples so doing, and being headed well toward the New York of fraud. He refused to interfere upon the ground shore, she drifted down with a strong tide and rau that the court at law had jurisdiction, the Parliament afoul of the S. at anchor, the position of the latter being having passed statutes permitting such equitable depreviously well known to the R., held, that the ferry. fenses to be pleaded in suits at law. The obvious inboat was in fault for not keeping further away from ference from the opinion is that in the absence of the known station of tbe S.; held also that under the such legislation the plea would not be allowed. If the circumstances it was not probable that the ringing of defendant wishes to impeach the judgment for fraud a bell would have been of any service to the R. in or covin in obtaining it, he must invoke the aid of the avoiding the collision, and that the R. accordingly was court upon the equity side, whose peculiar province it alone answerable. McCready v. Goldsmith, 18 How. is to grant relief in cases of this sort. See Glover v. 89, 92. Dist. Ct., S. D. N. Y. January, 1884. The Hedges, Saxt. 119; Power's Ex'rs v. Butler's Adm'r, 3 Rockaway. Opinion by Brown, J.

Green, Ch. 465; Moore v. Gamble, 1 Stockt. 246; TomSHIP AND SHIPPING - MASTER'S AUTHORITY kins v. Tomkins, 3 id. 512. Cir. Ct., D. N. J. Janu SELL-NOTICE TO OWNER.-The master has no au. ary 20, 1884. Allison v.Chapman. Opinion by Nixon, thority to sell damaged cargo in a foreign port without

J. notice to the owner or shipper when there is abundant

SHIP AND SHIPPING-LIEN – WAIVER - ESTOPPEL. time and means for communication with him,

-(1) A barge has presumptively a lien for her whether the object be to obtain money for the repair of freight upon the goods laden on board, which is not the ship, or merely the sale of damaged or perishable waived by any provisions of the contract of hire not goods. Acatos v. Burns, 7 Exch. Div. 282; The Aus

absolutely incompatible with the enforcement of the tralasian, etc., v. Morse, L. R., 4 P. C. 222; Cammell v.

lien at the time of delivery. The Bird of Paradise, 5 Sewell, 3 Hurl. & N. 634; The Gratitudine, 3 C. Rob. Wall, 545, 562, 563; Bulkley v. Naumkeag, etc., Co., 24 240; The Hamburg, 2 Marit. Law Cas. 1; Atlantic Mut. How. 386, 393; The Yankee Blade, 19 id. 82: 1 Pars. Ins. Co. v. Huth, 16 Ch. Div. 474. These cases all rest Shipp. & Adm. 174, and notes; The Hermitage, 4 upon one common principle, that the master, by vir- Blatchf. 474; The Eddy, 5 Wall. 441, 494. See also Rug. tue of his general authority, does not have any right to gles v. Buckner, 1 Paine, 363; Raymond v. Tyson, 17 sell or hypothecate either the ship or the cargo; that How. 53, 61. (2) A contract to take on board wire cable his authority in these respects rests upon necessity in New York to be laid in the Erie caual, freight, the solely and upon the particular emergencies of the occa- hire of the barge at a per diem rate, to be paid as soon sion; and that this authority is therefore limited by as the cable is laid, is not incompatible with such a the nature and extent of the necessity. If the owner

lien, and with proceedings to enforce it at once in deis at hand, and can be easily communicated with, the

fault of payment as agreed. (3) Where wire cable was master must advise the owner of the facts, and take laden op board a barge by the manufacturer, pursuant his directions; and where such directions may be ob- to an agreement between the shipper and the owner tained there is neither necessity nor authority nor of the barge, of which the manufacturer was chargejustification for the master to assume to sell or to hy- able with knowledge, held, that the barge had a lien pothecate without notice. These principles I uuder

upon the cable for her freight pursuant to the constand to be substantially adopted by the Supreme tract, and that such lien was not affected by the priCourt in the case of The Julia Blake, 107 U. S. 418; ?

vate arrangement between the manufacturer and shipSup. Ct. Rep. 191, affirming the judgment of the Dis

per, not known to the libellant, that the cable should trict and Circuit Courts of this district; 16 Blatchf.

be paid for on delivery, nor by the fact that the manu472. See also The Amelie, 6 Wall. 18, 27; The C. M.

facturers, upon completing the lading of the cable, kept Titus, 7 Fed. Rep. 826, 831; Butler v. Murray, 30 N. Y.

the shore end fast upon their premises so as uot to per88, 99; The Joshua Barker, Abb. Adm. 215; Pope v.

mit the departure of the barge with the cable Nickerson, 3 Story, 465; Myers v. Baymore, 10 Penn. aboard. Held, also that the cable, as between the manuSt. 114; Hall v. Franklin, etc., Ins. Co., 9 Pick. 466 ;

facturers and the libellant, must be regarded as laden Pike v. Balch, 38 Me. 302. Dist. Ct., S. D. N. Y.

on account of the libellant's contract, and as the goods February, 1884. Astsrup v. Lewy. Opinion by Brown,

of the shipper, and that the manufacturers were esJ.

topped from denying this as respects the libellant, al. JUDGMENT – OF ANOTHER STATE - OBTAINED BY tbough as between the manufacturers aud the shipper FRAUD-RELIEF FROM WHEN SUED ON. - In an action the title may not have passed. Faith v. East Ind. Co., of debt in one State upon a judgment obtained in 4 Barn. & Ald. 630. The same priuciple of estoppel as another, a plea that the judgment was obtained by regards the lien of material-men upon vessels on their fraud is no defonse. To avail himself of such a de. equipment, without regard to the actual title, has

been applied in the case of The May Queen, 1 Spr. 588; a route is usually within the discretion of the master The St. Jago de Cuba, 9 Wheat. 409, 418: and The of the tug; and if he has exercised reasonable judgSarah Starr, 1 Spr. 453. (4) As the barge under con- ment and skill in his selection he will not be held in tract with the shipper would, as against him, be enti- fault, though the court may be of opinion that the distled to a lien on the goods during the time the vessel aster which followed would not have occurred if he was detained by reason of his not fulfilling his contract had taken another route. He can only be chargeable with the libellant, held, that the lien existed to the same with negligence when he takes a course which good extent as against the manufacturers, who, for their seamanship would deem unauthorized and reckless. own benefit, bad held the vessel fast by the shore end “The owner of a vessel does not engage for the iufalof the cable until they removed the cable under the libility of the master, nor that be shall do in an emerstipulation given in this suit. The Hermitage, 4 gency precisely what, after the event, others may Blatchf. 474; The Hyperion's Cargo, 2 Low. 93; think would have been the best." The Hornet (LawSprague v. West, Abb. Adm. 548. Dist. Ct., S. D. N. rence v. Minturn) 17 How. 100; The Star of Hope, 9 Y. January, 1884. Blowers v. One Wire Rope Cable. Wall. 230; The W. E. Gladwish, 17 Blatchf. 77, 82, 83; Opinion by Brown, J.

The Mohawk, 7 Ben. 139; The Clematis, 1 Brown Adm.

499. (2) A like rule obtains with reference to the conNEGLIGENCE - PASSENGER ON FERRY - CONTRIBU

duct of the master in refusing to cross the lake or TORY NEGLIGENCE.--Where in a libel for damages for the

turn back to the port of departure in face of a storm. killing of a husband and fatber the ferry steamer in

(3) The intoxication of a master upon duty ought not flicting the injury was in fault, but the deceased had

to be inferred from slight circumstances equally conviolated rules of the managers, forbidding passengers

sistent with a different theory, or from the equivocal to step over guard-chains and passing off to the wharf

testimony of one or two dissatisfied seamen, when before the boat was drawn up and made fast at the

flatly contradicted by the remainder of the crew. (4) landing, in doing which deceased received fatal inju

The abandonment and ultimate loss of a tow of barries, but in doing so only did what men and boys hab

ges to save the tug from destruction, and the subseitually and constantly did on the ferry, without re

queut arrival of the tug in a port of safety, does not straint or remonstrance from the management, held,

vest in the owners of the barges a claim against the that this was not such contributory negligence on the

tug for contribution in general average. Says Judge part of deceased as to exonerate the claimants from

Dillou, in his work upon Municipal Corp., vol. 2, $ 756 : responsibility in damages, the managers of the ferry

“The rights of private property, sacred as the law rehaving, by neglecting to enforce their rules, held out to

gards them, are yet subordinate to the higher depassengers that there was no practical danger in violat

mands of the public welfare. Salus populi suprema est ing them, and thereby put the deceased off his guard

lex. Upon this principle, in cases of imminent and as to the danger attending the practice, which was hab

urgent public necessity, any individual or municipal itually permitted. The case turns upon the question:

officer may raze or demolish houses and other com"Was any thing presented to arrest his attention and

bustible structures in a city or compact town, to preto warn him of the fate which overtook him?"' be

vent the spreading of a destructive conflagration. This cause it is a principle of the law of contributory negli- he may do independently of statute, and without regence that a carrier is not necessarily excused because

sponsibility to the owner for the damages he thereby the injured person knew that some danger existed

sustains." It was said, so long ago as the reign of through the carrier's neglect, and voluntarily incurred

Edward IV, that "by common law every man may the danger. Clayards v. Dethick, 12 Q. B. 439. Where,

come upon my land for the 'defense of the realm.'" for instance, a traveller crossed a bridge which he

In the Saltpetre case, 12 Coke, 13, it is said that “for knew to be somewhat unsafe, but which its managers

the Commonwealth a man shall suffer damage; as for had not closed, nor warned the people not to pass, and

saving of a city or towi, a house shall be plucked the traveller's horse fell through and was killed, it was

down if the next be on fire; and the suburbs of a city held that he was not in fault, and damages were re

in time of war, for the common safety,shall be plucked covered. Humphreys v. Armstrong Co., 56 Penn. St.

down, and a thing for the Commonwealth every man 204. So it was held that the plaintiff might recover

may do without being liable to an action." In Mouse's where a passenger train was moving very slowly by,

case, id. 63, certain passengers upon a ferryboat from but did not stop at a depot where it sbould have stop-Gravesend to London cast overboard a hogshead of ped, and a passenger was injured by leaping off, pot

wine and other ponderous things to save the boat withstanding the usual warning that passengers must

from being swamped in a violent tempest. It was not get off the train while in motion, the slow gait of

held that as this was a case of necessity for the saving the train seeming to invite the passenger to get off.

of the lives of the passengers, the defendant, being a Filer v. N. Y. Cent. R. Co., 49 N. Y. 47. These cases sufficiently illustrate the principle of the law of con

passenger, was justified in casting the hogshead of the

plaintiff out of the barge. See also Governor, etc., v. tributory negligence, that though the passenger must

Meredith, 4 T. R. 794; Respublica v. Sparhawk, 1 do what a prudent person should do to avoid accident

Dall. 357 ; Taylor v. Plymouth, 8 Metc. 462, Mayor, in any particular circumstance in which he may stand, yet if he has reason to infer from the conduct and

etc., v. Lord, 17 Wend. 285; S. C., 18 id. 126. A like

principle was applied in the Roman law, wherein it is policy of the carrier that no practical danger would at

said, that if by the force of the winds, a ship is driven tend an act, though there might be some risk, and if

against the cables of an another, and the sailors cut he is thereby thrown off his guard respecting it, the

these cables, no action will lie, if the ship cannot carrier is liable. Dist. (t., E. D. Va. February 24,

be extricated in any other way. Dist Ct., E. D. Mich., 1884. Manhassett. Opinion by Hughes, J. [See 29 Alb. L. J. 216.)

July 9, 1883. The James P. Donaldson. Opinion by

Brown, J. SHIP AND SHIPPING- MASTER ACTING IN EMERGENCY DISCRETION INTOXICATION OF MASTER - PATENT-PREVIOUS DESCRIPTION.-An inventor is ABANDONMENT OF TOW--GENERAL AVERAGE.- (1) not barred from obtaining a patent because his invenWhere the propriety of the general course to be taken tion has been described, though not claimed, in a by a tow from one port to another depends largely prior patent to the same inventor. Battin v. Taggert, upon the season of the year, the state of the weather, 17 How.74; Graham v. McCormick, 11 Fed. Rep. 859. the velocity of the wind, the probability of a storm, Cir. Ct., D. Vermont, Jan. 28, 1884. Vermont Farm and the proximity of harbors of refuge, the choice of Machine Co. v. Marble. Opinion by Wheeler, J.

SALE

ACCEPTANCE.

MICHIGAN SUPREME COURT ABSTRACT. not converse or discuss with one party in the absence

of the other upon the subject under consideration, and STATUTE OF FRAUDS-DEBT OF ANOTHER-EVIDENCE

in another case the furnishing of liquor by a petitioner AS TO CREDIT.—(1) An agreement by one person to pay for a highway to the commissioners, while engaged in for goods furnished to another is not a collateral | their duties, was held an abuse for which the court promise to pay the debt or answer the default of would ordinarily set aside a report in favor of the another, within the meaning of the statute of frauds. petitioner without inquiring how far the commission(2) The court cannot direct a verdict against a party

ers were affected by it. Newport High way, 48 N. H. whose evidence, though inconsistent, tends in any part 433. In this case an affidavit of one of the commisto sustain his side of the issue. (3) Goods charged sioners was filed in support of the motion to set aside upon the vendor's books to the person to whom they are

the report. This was proper. The commissioners are delivered may nevertheless be shown to have been sold not like a common-law jury, and their owu affidavits upon the credit of another. Foster v. Persch, 68 N.Y.

may be used to impeach their finding, or show that 400; Hagen v. Bearden, 4 Sneed, 48; Walker v. Rich- they proceeded upon a wrong principle in the ascerards, 41 N. H. 388; Swift v. Pierce, 13 Allen, 136; Bar

tainment of damages. The rule on which they act is rett v. McHugh, 128 Mass. 165; Champion v. Doty, 31

a fact, and may be shown as any other fact. Canal Wis. 190; Ruggles v. Gatton, 50 Ill. 412. Larsen v.

Bank v. Albany, 9 Wend. 244; New Jersey R. & T. Jensen. Opinion by Champlin, J. [See 46 Am. Rep. Co. v. Suydam, 17 N. J. L. 25. All parties are -Ed.]

entitled to the intelligent judgment of the commis

sioners upon the appraisement of damages, and any [Decided April 23, 1884. ]

agreement in advance which shall leave the amount as CONTRACT "ON TRIAL

the result of chance cannot be upheld. In the case of Where by written contract plaintiff agreed to fur- | Kansas City, etc , R. Co. v. Campbell, 62 Mo. 585, the nish a windmill pamp, and to make it work properly, three commissioners put down the amount respectively if after a trial of six months the defendant should ac- determined on by them, and divided the sum by three, cept it, and the contract closed with a stipulation that and returned the quotient as the result, and the findif the windmill should be erected and should do the ing was set aside by the Supreme Court. See also to work proposed the defendant should pay a specified the same effect Donner v. Palmer, 23 Cal. 40; Ruble s. sum, held, that defendant was not liable until he ac- McDonald, 7 Iowa, 90; Birchard v. Booth, 4 Wis. 67; cepted the apparatus. Cole v. Homer Com. Coun.

Denton v. Lewis, 15 Iowa, 301; St. Martin . DesOpinion by Campbell, J. (See 30 Eng. R. 816.-ED.] noyer, 1 Minn. 156 (Gil. 131); Forbes v. Howard, 4 R.I. [Decided April 23, 1884.]

364. Marquette H. & 0. R. Co. v. Houghton. Opinion

by Champlin, J. NUISANCE OPENINGS IN STREET -- PERMISSION.Permission given by the common council of a village (Decided A pril 9, 1884.] to a property holder to make certain openings in the street for the improvement of his premises, rebuts any

PENNSYLVANIA SUPREME COURT presumption that the partial appropriation of the street

ABSTRACT. is a nuisance per se. This was decided in People v. Carpenter, 1 Mich. 273, and has never been doubted in this

CONTRACT_ENTIRE-SPLITTING CAUSES OF ACTIONState. (2) If the permission of the village government

JUDGMENT FOR PART, BAR.—Where the subject of a sale was a mere license, which the government of the city

consists of an entire lot of standing timber of a specified (afterward chartered) was at liberty to revoke, it does quality, and the price to be paid is not apportioned to not follow that the property holder is a wrong.doer in

any item or part thereof, the contract is entire. Lucesco maintaining his structure. The common council of a

Oil Co. v. Brewer, 66 Penn. St. Where a contract is city is not the judge of what is criminal and what is entire and not divisible, but one action can be mainnot. Everett v. City of Marquette. Opinion by Cooley, tained thereon. Shenk' v. Mingle, 13 S. & R. 29; Cor C. J.

bett v. Evans, 25 Penn. St. 310; Logan v. Caffrey, 30 [Decided April 23, 1884.]

id. 196. Where the consideration of an entire conEMINENT DOMAIN-MOTION TO SET ASIDE REPORT - tract is a cash payment, and a promise to give negotiaIMPEACHING REPORT-AFFIDAVIT OF COMMISSION.- ble notes at three, six, nive and twelve mouths, a reThe probate court bas authority to set aside the re- fusal to give such notes after cutting part of the timport of the commissioners for good causes shown. If

ber is a breach for whith the vendor can sue and rethe amount awarded is unreasonable, and indicates cover damages for the whole sum for which the notes that it was the result of prejudice or partiality, or that were to have been given. Where a suit has been the commissioners must have acted upon a wrong brought under the conditions above stated on the basis of estimating the damages, it is a good cause for ground of refusal to give the notes, and under the insetting aside the report. Chapman v. Groves, 8 Blackf.struction of the judge the jury found a verdict for the 308. Evidence as to the value of the property con- amount of the one note which would have been then demned, and the resulting damages, while admissible, due, and judgment is entered on the same, such judgis not controlling; they are the opinions of witnesses ment is a bar to a subsequent suit on the same consimply, and should not ordinarily have greater weight tract. Unfortunately for the plaiutiff, his first suit than the official report of the commissioners who have was not brought for an iustalment of purchase-money considered all the evidence. Eastern R. Co. v. Con- payable at a certain date; it was for the purchase cord, etc., R. Co., 47 N. H. 108. Numerous courts money on an entire contract, aud the judgment for a have held that the reports of commissioners may be small fraction of his demand discharged the obligaimpeached for partiality, bias, prejudice or inatten- tion. Even where a demand originally consisted of tion or unfaithfulness in the disebarge of their trust,or distinct parts, and the plaintiff chose to have it tried for error of such extraordinary character or grossness as if entire, but recovered only a part, he barred as should furnish a just inference of the existence of from recovering the other in a second action. Hess v. such influences. Mills, Em. Dom., $ 234, and cases Heeble, 6 S. & R. 57. We conclude with the final recited in note 7. Commissioners exercise important mark of Gibson, J., in that case: “I am aware that functions and pass upon valuable rights, and should be this decision may bear hard on the justice of the cause, free from prejudice or undue influence. In Peavy v. and I regret it; but it is peculiarly the province of a Wolfborough, 37 N. H.286, it was held that they should court of error to hold the rule steady and see that the

BY

COURT-SUED

ON

OWN

particular equity of a case does not prevail over the 304. (2) The refusal of the defendant to deliver the law.” Alcott v. Hugus. Opinion by Trunkey, J. (See plan aud deed until his charges were paid amounts to 29 Eng. R. 594. -ED.)

a conversion, and on trover for the same the said [Decided Feb. 14, 1884.]

charges cannot be set off. Arthur v. Sylvester. Opin

ion by Trunkey, J. NOTICE-POSSESSION-CONSTRUCTIVE.-The posses

[Decided March 3, 1884.) sion of land is notice to the world of every title under which the occupant claims it, sufficient to put a purchaser or mortgagee on inquiry, unless the occupant

ILLINOIS SUPREME COURT ABSTRACT.* has put a title on record inconsistent with his posses

JANUARY TERM, 1884. sion. Since Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35, this principle has been recognized in many cases, among which are the followiog: Billington's Lessee

TAXATION-CAPITAL STOCK- PERSONAL TAX.-Capi1. Welsh, 5 Binny, 128-32; Sailor v. Hertzog, 4 Whart.

tal stock of a corporation is personal property, having 259; Woods v. Farmere, 7 Watts, 282-4; McCulloch v.

no ingredient of real estate, and hence a tax levied on Crowher, 5 W. & S. 427-9; Patton v. Hollidaysburg, 4

it is clearly a personal tax, and becomes a lien on perWright, 206; Mechan v. Williams, 12 id. 238; Jamison

sonal property only from the issue of the warrant for v. Dimmick et ux., 14 Nor. 52-6; Hottenstein v. Lerch,

its collection. Saup v. Morgan. Opinion by Walker, 39 Legal Intell. 393. While the principle is differently

J. stated in some of these cases, it is substantially the TAXATION-PERSONAL PROPERTY-WHEN LIEN ON same in all. In Woods v. Farmere, supra, Gibson, REAL.-A tax on personal property does not become a C. J., speaking of the unlimited effect given by the lien on real estate until the collector of taxes shall seEnglish courts to possession as an index to title, says lect for that purpose some particular tract or lots *the duty of inquiring into the foundation of a noto- of real property, and charge the tax against the rious possession is not a grievous one, and it is soon same, as above named. Belleville Nail Co. v. People, performed. Why then should a purchaser be suffered 98 Ill. 399; Ream v. Stone, 102 id. 359; Parsons to act on probabilities as facts, at the risk of any one v. East St. Louis Gas Light Co., 108 Ill., 380. And but himself, when a moment's share of attention would see Binkert v. Wabash Ry. Co., 98 id. 206; Cooper v. prevent misconception or loss? The doctrine of con- Corbin, 105 id. 225. Carter v. Rodewald. Opinion by structive notice is undoubtedly a sharp one, but is not Sheldon, C. J. more so in regard to a notorious possession than it is

RECEIVER APPOINTED

UNITED STATES in regard to a registry. Nor is it less reasonable, for

IN STATE COURT-PERMISSION PREit certainly evinces as much carelessness to purchase

SUMED-SUING

BEHALF, AND OTHERS without having viewed the premises as it does to pur

SIMILARLY SITUATED.-(1) After the appointment of a chase without having searched the register.” There

receiver of an insolvent railway company by the United fore where a party has, without authority, taken a

States Circuit Court, at the suit of certain bonddeed to bimself of property which he purchased for

holders, and possession taken by such receiver, the another with that other's money, and such equitable owner took and retained possession, and then the

bondholders of the company secured by deed of trust

on the real estate of the company filed a bill in the holder of the legal title created a mortgage of the

Circuit Court of the State to enjoin the collection of property, the possession of the equitable owner was

the personal property tax of the corporation by the sufficient to put the mortgagee on notice, and the want

sale of the mortgaged property, and to enjoin the reof authority to create the mortgage is a defense thereto

ceiver from paying the same out of assets in his hands. on the part of such equitable owner. Rowe v. Ream.

Held, that the fact that the property sought to be Opinion by Sterrett, J. (See 45 Am. Rep. 184, note.

made liable for the taxes was in the possession of the - ED.)

United States court by the receiver could not affect [Decided March 17, 1884.]

the jurisdiction of the State court as to the subjectSTATUTE OF FRAUDS-DEBT OF ANOTHER.-One part- matter, and that permission to sue the receiver in the ner cannot bind his co-partners jointly with himself State court might be presumed from the fact of no obto pay the debt of another. A promise to pay a note jection being made. (2) The holder of a portion of out of money belonging to the maker in the hands of bonds secured by deed of trust given by a railway comthe promisor when the note falls due, and if that fund pany in order to protect the mortgaged property or be insufficient, that the promisor would individually fund securing his and others' bonds, may file a bill in pay the same, is a promise to pay the debt of another his own behalf and in behalf of all other holders of within the statute of frauds. Townsend v. Long, 27

such bonds, his interest and that of the others being P. F. Smith, 143; Justice v. Tallman, 5 Norris, 147.

identical and inseparable. Carter v. Rodewuld. OpinShaaber v. Bushong. Opinion per Curiam. (See 46 Am.

ion by Sheldon, C. J. Rep. 286.-ED.)

DEED-DELIVERY-QUESTION OF INTENT-PRESUMP[Decided March 17, 1884.)

TION—EVIDENCE TO REBUT.-(1) Delivery is a question BROKER-NO LIEN ON DEED-CONVERSION.-(1) A

of intent, and it depends on whether the parties at the

time meant it to be a delivery to take effect presently. real estate broker has no lien on a deed and plan placed

Where the owner of land had a written lease drawn, in his hands for the sole purpose that he shall under

which was signed by the parties and left with the lestake to sell the property therein referred to for his

see to procure an indorsement of a guaranty for the pay. charges and expenses in attempts to make the sale.

ment of the rent and to have a duplicate drawn, it was Steadman v. Hockley, 15 M. & W. 452; Hollis v. Claridge, 4 Taunton, 807. By the common law, where a

held, this was no execution or delivery of the lease as

the deed of the lessor, and could not be such until the man receives from the owner an article for a purpose guaranty of the rent had been obtained, and that the involving labor or expense upon such article, he may

subsequent communication of the lessee to the lessor detain it until he is paid for his labor or expenses.

of the former's inability to obtain the guaranty, terThe distinction is that when the work is to be done

minated the negotiation and the initiatory proceedon a cbattel to improve it or to increase its value, the

ing in making the lease, and that a guaranty subselien attaches, but where it is merely delivered, as in

quently obtained availed nothing without the assent this case, to make a demand upon it, no such right can be supported.” Sanderson v. Bell, 2 Compt. & M.

*To appear in 108 Illinois Reports.

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