Imágenes de páginas

cents for six pages of the said article for each and of a partial performance of a contract, appears to have every copy of said work sold by said” plaintiffs, and been confined to cases where the delivery was to be in plaintiffs agreed to furnish a verified certificate “as to parcels, at different times. While defendants were the number of copies of said work actually sold and not bound to accept a delivery of a portion of the delivered to subscribers." In an action upon this con boxes of glass, and had a right to reject or retain the tract it was shown that plaintiff had agents in every same, as they saw fit, yet if they elected to receive State and in Canada who canvassed for subscribers to the part delivered, and appropriated the same to their books published by plaintiffs and then ordered the own use, and by their acts evinced that they waived number of books required for delivery to subscribers, the condition, tbey became liable to pay for what was and paid for them and the books were shipped by | actually delivered. Vanderbilt v. Eagle Iron Works, freight or express, directed to the agents who 25 Wend. 665; Corning v. Colt, 5 id. 253; Krom v. Levy, delivered them to subscribers, the plaintiffs hav- | 3 T. & C. 704; 6 id. 253; Flanagan v. Demarest, 3 Robt. ing no personal connection with the delivery | 173; Normington v. Cook, 2 T. & C. 423; Welch v. and no knowledge of the individual subscribers | Moffat, 1 id. 575. The cases of Catlin v. Tobias, 26 N. except through these agents. Held, that evidence Y. 217; Pratt v. Gulick, 13 Barb. 297 ; McKnight v. Dunthat

iffs had actually delivered to their agents lop, 4 id. 36; S. C., 5 N. Y. 537; Mead v. Degolyer, 16 and had been paid for a specified number of the books Wend. 636; Paige v. Ott, 5 Den. 406, are not adverse to named was sufficient proof prima facie that they had the case at bar. In most of the cases it was contemsold the specified number in the way agreed, without plated that the performance was not to be done by a evidence of a delivery to each individual subscriber. single act at one time, but by a succession of acts, and Held, also, that the contract did not call for a sale of the intention evidently was that all of these should be the books in every State as a condition of defendant's completed as a condition precedent to a right of reliability. If the compensation had been fixed at a gross covery. The principle established is that the parties sum it might have been claimed that the consideration must fulfill the terms of the contract. They have a implied a sale in all the specified places, but otherwise, right, however, to act outside of the contract by changthe compensation being limited to a specified sum for ing the time aud conditions, etc. Judgment affirmed. each book sold. See as sustaining the holding that evi Avery et al. v. Willson et al., appellants. Opinion by dence of delivery to agents was sufficient to establish Miller, J. a liability on the part of defendant, Burr v. Cromp [Decided June 8, 1880.] ton, 116 Mass. 493. In that case it was held that the evidence was sufficient to justify a verdict for plaint

STATUTE OF LIMITATION -UNDER OLD CODE AS iffs. Here it was held sufficient on this point, there TO MARRIED WOMAN — STATUTORY CONSTRUCTION being no conflicting evidence to set aside a decision of

OLD CODE, S 101; NEW CODE, SS 381, 414, Laws 1870, the referee for defendants. Order of General Term

CHAP. 741; 1851, CHAP. 479 — PAYMENT — RENEWING reversing judgment on report of referee affirmed.

OBLIGATIONS.-- (1) Under the provisions of the statute Burr & Hyde v. American Spiral Spring Co. Opinion

of limitations contained in the old Code, ş 101, as it by Church, C. J. Adopted as the opinion of the court.

was until 1870, excepting a married woman by reason (This was the last opinion written by Chief Judge

of her disability to sue, the fact that she was a woman Church and was completed the morning of his death).

and married created the disability. Until 1851 the [Decided June 1, 1880.]

time of the disability was no part of the time when

the statute ran. By Laws 1851, chap. 479, the period SALE OF PERSONAL PROPERTY - SPECIAL CONTRACT

in which an action could be brought could not as to - WAIVER — WHEN PART DELIVERY GIVES RIGHT OF her be extended more than five years, mor more ACTION. – By an oral contract plaintiff's agreed to sell than one year after the disability had ceased. The and defendants to buy at a price named a certain five years and one year acted independently of number of boxes of glass, which were to be delivered | each other. If five years of disability had elapsed together at one and the same time. Plaintiffs deliv | before the disability had ceased in case of a ered a portion of the glass but did not deliver the re

sealed instrument, the limitation of twenty years mainder. It was shown that prior to the delivery of began to run. If the disability had ceased for a year, any glass defendants wrote plaintiffs to forward them though the term of five years had not expired, then the at once a small portion of the glass, which was de twenty years' period began to run at the end of the scribed. At the time of receiving the glass delivered, year. Thus the lapse of five years alone was enough to defendants received and used the same without any stop the action of the disability, and the lapse of a year notice to plaintiffs that they would not consent to be- after the cessation of the disability alone, though come liable to pay for that glass unless the remainder the five years had not yet gone by, was enough to stop was delivered. Thereafter defendants wrote plaintiffs the action of the disability. So a married woman outthat they desired to have the contract completed side the act of 1870 (chap. 741) might have on a sealed within a reasonable time and a correspondence ensued instrument twenty-five years in which to bring action, which showed that the parties understood the contract or she might have but twenty-one years. In this differently. During this, plaintiffs notified defend- case a cause of action on a sealed instrument arose ants that they had such glass as was fitted to fill the Nov. 1, 1857, in favor of a married woman. Her huscontract and offered to completo it if the glass previa | band died in 1866. Held, that she was under the act of ously shipped and accepted was allowed to apply on 1851 entitled to twenty years from the expiration of the contract. Defendants declined to receive the glass the five years immediately succeeding the accruing of on the ground that the time for completing the con- | the cause of action. (2) But by the act of 1870 the disabiltract had expired, but nowhere did they claim that ity excusing from suing was taken away from married they were not liable to pay for the glass received. women and the ordinary limitation applied to married Held, that defendants were liable for the price of the women as well as to others, and thereafter a married glass received, having waived the full performance of woman must sue on a sealed instrument within twenty the contract on the part of plaintiffs. While the gene- | years after her cause of action had accrued, and as this ral rule in this state is that no action lies upon a special | act by express terms applied to actions pending or such contract, for the price agreed upon, until performance as thereafter might be brought, it applied to rights of of such contract, this rule has been qualified in its ap- | action whether then accrued or thereafter to accrue. plication. Smith v. Brady, 17 N. Y. 173; Champlin y. | A statute of limitation affects the remedy on contracts Rowley, 13 Wend. 258. In the former case the rule that made before as well as those made after the passage of a party may retain, without compensation, the benefits | it. By that act plaintiff had but twenty years from

November 1, 1857, to bring action. The new Code | allowed. Ex parte Roberts, 15 Wall. 385. Neither one (5$ 381, 414), did not operate to extend plaintiff's time, of the parties was finally discharged from the court which expired Nov. 1, 1877, and an action brought Dec. | until the term ended, and each was bound to take 10, 1877, was too late. (3) Before the instrument in | notice of whatever was done affecting his interests in question, which was a bond secured by a mortgage, the suit until a final adjournment actually took place. was executed, defendant, to secure an indebtedness to Decree of Dist. of Columbia Supreme Court affirmed. plaintiff, took out a policy of insurance upon his life. Phillips, appellant, v. Ordway. Opinion by Waite, That indebtedness was part of the sum secured by the C. J. bond and mortgage, and the policy was held as collat

STATUTORY CONSTRUCTION — WHEN THIS COURT eral to them. Defendant failed to make payment of WILL NOT FOLLOW STATE COURTS AS TO STATE STATthe premiums, at what time it did not appear, on the

UTES - SALE OF LUNATIC'S ESTATE-NOTICE- JURISlife insurance, and in 1866 a sum of money was paid by DICTION. -(1) The statutes of Wisconsin relating to the the insurers to plaintiff. Held, that this would not sale of a lunatic's real estate provide, among other constitute a payment taking the case out of the statute, things, that a copy of the order to show cause why a even though plaintiff informed defendant at the time liceuse to sell the lunatic's estate should uot be granted of the payment, and defendant did not reply. New

shall be published for four successive weeks before the Code, $ 395; First Nat. Bk. of Utica v. Ballou, 49 N.

motion therefor is heard, and a copy thereof be served Y. 155. The getting the policy and payment of the

personally upon all persons interested in the estate, premiums might have had such an effect if they had “provided, however, if all persons interested in the been acts of defendant, within twenty years of the estate shall signify in writing their assent to such sale, bringing of suit. Harper v. Fairley, 53 N. Y. 442, the notice may be dispensed with.” It is also provided Smith v. Ryan, 66 id. 352. The payment of money by 1 that the court, "upon proof of the due service or pubanother as the result of a prior act of defendant would | lication of a copy of the order, or of filing the consent not have that effect. Order of General Term reversed

in writing to such sale, of all persons interested, shall and judgment of Special Term affirmed. Acker v.

proceed to the hearing of such petition, and if such Acker et al., appellants, Opinion by Folger, C. J. consent be not filed, shall hear and examine the allega[Decided June 1, 1880.]

tions and proofs of the petitioner and of all persons

interested in the estate who shall think proper to UNITED STATES SUPREME COURT oppose the application." Held (conflicting with Mohr ABSTRACT.

v. Tulip, Wisconsin Sup. Ct., 1876, and following GrigOCTOBER TERM, 1879.

non's Lessee v. Astor, 2 How. 319), that an objection

to the jurisdiction of the court to grant a license for PRACTICE - JURISDICTION OF COURT OVER ORDERS the sale of a lunatic's real estate, on the ground that MADE AT SAME TERM – APPEAL. — The Supreme Court the copy order to show cause was not published as reof the District of Columbia at General Term, upon the quired by law, could not be raised by the lunatio in an application of one Ordway, a party to an action which action brought thereafter by him to set aside a sale made had been determined, allowed an appeal to this court. by his guardian under a license granted by the court. Nothing further was done and no bond was filed. | The publication of notice of the hearing is only inDuring the same term an entry was made upon the tended for the protection of parties having adverso minutes of the former court to the effect that the ap interests in the property, and is not essential to the peal that was allowed had been withdrawn by the party jurisdiction of the court. It may be dispersed with mentioned. Held, that that court had power to revoke if the parties having such interests consent to the sale. its allowance of appeal during the term, upon the The consent could not be signed by the lunatic, for he, request of the party to whom it was granted. The by his condition, would be incapable of giving a conallowance of the appeal to Ordway was a judicial act sent, and yet upon the others' consent, the court could of the court in term time. The order was entered on proceed to act without notice to him. Nor, indeed, the minutes as part of what was done in the cause by was there any reason why publication of notice should the court while in session. In ex parte Lange, 18 Wall. be made for other parties than those who held adverse 167, it was said that "the general power of the court | interests. The lunatic could not be affected by over its own judgments, orders and decrees, in both such publication any more than by his consent. The civil and criminal cases, during the existence of the application of the guardian to the court was required term at which they are first made, is undeniable." by the law only as a check against any improvident Basset v. U. S., 9 Wall. 38; Doss v. Tyack, 14 How. | action by him. There was nothing in the nature of 298. As part of the “roll of that term" they are | the proceedings which required a notice of any kind, deemed to be “in the breast of the court during the so far as the rights of the lunatic were concerned. whole term," Bac. Abr., tit., Amendment and Jeofail, The law would have been free from objection had it A. Under this rule it is clear that the court had the simply authorized, upon the consent of the court, a power during the term, at the request of Ordway, to sale of the lunatic's property for the payment of his set aside the order of allowance and thus vacate the debts. The authority of the court in that case as in appeal which had been granted in his favor. This was this would have existed to license the sale, whenever it done before any adverse rights had intervened. We appeared that the personal estate of the lunatic was are unable to see how the allowance of an appeal dif- insufficient to pay his debts, and that a sale of his real fers in this respect from any other judicial order made property was necessary for that purpose. (2) In exin the cause. If the one is subject to revocation or plaining their reason for refusing to follow the decisamendment while the term continues, so, as it seems ion of the Wisconsin Supreme Court in construing the to us, must be the other. There is nothing in this statutes of that State, the court say: The framers of which interferes with the rule that where an appeal is the Constitution, in establishing the Federal judiciary, allowed all jurisdiction of the suit appealed is trans assumed that it would be governed in the administraferred to this court. Here the question is whether an | tion of justice by those settled principles theu in force appeal was in legal effect allowed. It is true an order in the several States and prevailing in the jurispruof allowance was granted and entered on the minutes | dence of the country from which our institutions were of the court. So long as this order continued in opera- principally derived. Among them none were more tion, it bound the parties, but as it remained subject important than those determining the manner in which to the judicial power of the court during the term at the jurisdiction of the courts could be acquired. This which it was entered, its revocation vacated what had vecessarily depended upon the nature of the subject been done and left the decree standing with no appeal' upon which the judicial power was called to act. If it was invoked against the person, to enforce a liability, character of a corporation is not to be determined by the personal citation of the defendant or his voluntary the place where its business is transacted, or (even) appearance was required. If it was called into exer- | where the corporators reside, but by the place where ciso with reference to real property by proceedings in its charter was granted. With reference to inhabitrem, or of that nature, a different mode of procedure ancy, it is considered as an inhabitant of the State in was usually necessary, such as a seizure of the prop which it was incorporated." Drake on Attach. (3d ed.), erty, with notice by publication or otherwise, to parties / $ 80; The Cairo Continental Ins. Co. v. Kasey, 25 Gratt. having interests which might be affected. The rules 268; Connecticut Mut. L. Ins. Co. V. Duersen's Ex'r, governing this matter in these and other cases were a 28 id., do not conflict with this doctrine. The first of part of the general law of the land, established in our these cases had reference to the removal of causes to a jurisprudence for the protection of rights of person | Federal court from a State court, which was refused and property against oppression and spoliation. And on the ground that the company had by its stipulation when the courts of the United States were invested waived its right to a removal and the second involved with jurisdiction over controversies between citizens the question of the running of the statute of limitaof different States, it was expected that these rules tions as to it, which was held to run, as it had a local would be applied for the security and protection of domicile and residence in the State for the purpose of the non-resident citizen. The constitutional provision being sued. Virginia Sup. Ct. of Appeals, November owed its existence to the impression that State preju- Term, 1879. Cowardin v. Universal Life Insurance dices and attachments might sometimes affect injuri | Co. Opinion by Christian, J. ously the regular administration of justice in the State courts. And the law of Congress, which was

FIRE POLICY - COMPROMISE OF LOSS — BREACH OF passed to give effect to the provision, made it optional

WARRANTY NOT DEFENSE IN ACTION ON- MISREPREwith the non-resident citizen to require a suit against

SENTATIONS AS TO OWNERSHIP. — (1) The authorities him, when commenced in a State court, to be trans

are clear that i fire insurance company cannot avail ferred to a Federal court. This power of removal

itself of any breach of warranty in the policy to dewould be of little value and the constitutional provis

feat a recovery upon an agreement to pay the loss, ion would be practically defeated, if the ordinary rules

made after the loss has occurred, and the company has established by the general law for acquiring jurisdic

had an opportunity to investigate the facts and circumtion in such cases could be thwarted by State legisla

stances affecting the fairness of the loss, without any tion or the decision of the local courts. In some in

interference, deception or fraud practiced by the instances the States have provided for personal judg

sured at the time of such investigation, and that this ments against non-residents without personal citation,

is especially 80 when the agreement is a compromise upon a mere constructive service of process by publi

of the claim at a less amount than the insured claims cation; but the Federal courts have not hesitated to

as his true loss. Smith v. Glens Falls Ins. Co., 62 N. Y. hold such judgments invalid. Pennoyer v. Neff, 95 U.

85; National Life Ins. Co. v. Minch, 53 id. 144; Las. 714. So, on the other hand, if the local courts should

peyre v. Thompson, 7 La. Am. 218; Metropolitan lus. hold that certain conditions must be performed before

Co. v. Harper (U. S. W. D. Va.), 5 Rep. 491; Ins. Co. jurisdiction is obtained and thus defeat rights of non

v. Chesnut, 50 Ill. 111; Ins. Co. v. Wager, 27 Barb. 354; resident citizens acquired when a different ruling pre

Bilbie v. Lumley, 2 East, 469; Angel on Ins., $ 409; vailed, the Federal courts would be delinquent in duty

May on Ins., $ 575. In Smith v. Ins. Co., 62 N. Y. 85, if they followed the latter decision. Judument of Church, C. J., said: "The settlement and contract to S. U. Circ. Ct., E. D. Wisconsin affirmed. Mohr et al.,

pay a specified sum operates as a waiver of any warplaintiffs in error, v. Manierre. Opinion by Field, J.

ranty in the policy unless the settlement and contract were procured by the fraud of tho assured. It is said

that the company did not know of the breach of the INSURANCE LAW.

warrauty at the time of the settlement. The answer

is, that when the claim was made for the loss the comDOMICILE-OF INSURANCE COMPANY FROM ANOTHER pany was required to ascertain the facts as to any STATE COMPLYING WITH STATE LAWS AS TO BUSINESS. breach of warranty. If they saw fit to pay the claim, - An insurance company, incorporated by the laws of or compromise it, or to make a new contract without New York, having its principal place of business in such examination, it must be deemed to have waived that State, which had complied with the laws of Vir it, and in the absence of fraud it cannot afterward ginia in relation to foreigu insurance companies doing avail itself of such breach. It cannot urge payment business in this State, by making the deposit, and ap or settlement by mistake on account of want of kuowlpointing a citizen of Virginia an agent, by power of edge of such breach. The time for investigation as to attorney, etc., as required by the statute of Virginia, breaches of warranty is when a claim is made of payis not a resident of this State, within the meaning of ment, and if the company elects to pay the claim, or, the foreigu attachment laws of Virginia, and the prop wbat is equivalent, to adjust it by an independent conerty of said insurance company is liable to such attach tract, it cannot afterward, in the absence of fraud, ment as a non-resident. Whilst a corporation may, by | retract or fall back upon an alleged breach of warits agents, transact business anywhere, uuless pro- | ranty." (2) In this application insured had stated that hibited by its charter, or prevented by local laws, it his title to the insured premises was absolute, and that can have no residence or citizenship except where it is the buildings insured were situated on ground held by located by or under the authority of its charter. As him in fee simple. In his proofs of loss he stated that was said by Taney, C. J., in Bank of Augusta v. Earle, the property insured was at the time of the fire still 13 Peters, 519, “ It exists by force of the law (creating owned by him in fee-simple. The insurance was upon it), and where that ceases to operate, the corporation buildings erected by him on leased land, but what his can have no existence. It must dwell in the place of title to the buildings was did not appear. Held, that its creation, and cannot migrate to another sove- thero was no such false and fraudulent representations reignty." In ex parte Schollenberger, 6 Otto, 377, as to ownership of the insured property as to avoid a Waite, C. J., said, “A corporation cannot change its settlement of loss agreed upon between him and the residence or its citizenship. It can have its legal home insurance company. In order to sustain such a defense only at the place where it is located by or under the it was necessary for the company to show that the authority of its charter, but it may, by its agents, insured had not an absolute title to the property at transact business anywhere, unless prohibited by its the time of the loss; that he knowingly, falsely and charter or excluded by local laws." “The foreign fraudulently asserted, at the time of making the settlement, and for the purpose of inducing the company R. R. R. Co., 14 Wend. 51; Hay v. Cohoes Co., 3 Barb. to make the same, that he had a perfect title; that the | 42; Underwood v. Newport Lyceum, 5 B. Monr. 130; company, relying upon such false assertion of title, Humes v. Mayor of Knoxville, 1 Humph. 403; Hazen was, in fact, induced to make the settlement alleged to v. Boston & Maine R. Co., 2 Gray, 574; Illinois Central have been made; and that it would not have made | R. Co. v. Reedy, 17 III. 580; Baylor v. Balt. & Ohio R. such settlement if such false representations had not Co., 9 W. Va. 270. See, also, South-eastern Railway been made, See Mutual Fire Ins. Co. v. Sturges, 13 | v. European & Amer. Tel. Co., 24 Eng. L. & Eq. 513; Gray, 177-180; Ins. (Co. v. Matthews, 102 Mass. 221. Queen v. Great North of Eng. Railway, L. R., 2 Q. B. Wisconsin Sup. Ct., March 30, 1880. Stache v. St. Paul 151 ; Maund v.Moumouthshire Canal Co.,4 Man.& G.452. Fire and Marine Ins. Co. Opinion by Taylor, J. They are liable for the acts of their agents, though will

fully or maliciously done. For libel: where the agent

of a railway company telegraphed along its line that a CRIMINAL LAW.

banker had stopped payments. Whitfield v. South

East. R. Co., referred to in 21 How. 212, where a report BIGAMY — PRESUMPTION OF DEATH FROM ABSENCE. / was made to stockholders by directors. Philadelphia, - In prosecutions for bigamy, where absence for a etc., R. Co. v. Quigley, 21 How. 202. See, also, Maynumber of years of the wife or husband of the in-nard v. Firemen's Fund Ins. Co., 34 Cal. 48. In Nadicted party is relied on as a defense, held, that notional Exch. Co. of Glasgow v. Drew, 2 Macq. H. of artificial rule as to presumption is allowed to obtain in L. Cas. 103, a corporation was held liable for a fraudusuch cases, and the jury must draw their own infer- lent misrepresentation of its affairs in a report, whereby ences from the facts, without any anticipation by the a party was induced to purchase its stock. And in law. After much controversy in the earlier cases, as to Goodspeed v. East Haddam Bank, 22 Conn. 630, it was whether the presumption of innocence should out- | held that an action for a malicious prosecution could weigh the presumption of a continuance of human be sustained against a corporation. In Atlantic & life for the period of seven years, it seems now to be Great Western R. Co. v. Dum, 13 Ohio St. 16:2, and in generally conceded, that on principle, the one should Pittsburg, F. W. & C. R. Co. v. Shiper, id. 157, it was be considered as neutralizing the other, though in a decided that a corporation might be subjected to exgeneral way, the law prefers the presumption of inno-emplary or punitive damages for tortious acts of its cence. 1 Bish. Mar. & Div , $ 453; Bishop's Stat. Crs., agents or servants done within the scope of their au$ 611;1 Greenleaf on Ev., $ 41; R. v. Harborne, 2 A. & thority; and in Moore v. Fitchburg R. Co., 4 Gray, E. 540; Coper v. Thurmond, 1 Kelly, 538; Newman v. 405, that a corporation might be sued for an act of its Jenkins, 10 Pick. 515; State v. Moore, 11 Ired. 160. And servant while acting within his authority, which such seems to be the tendency of former decisions amouuted to an assault and battery. It may now be in our State. Yates v. Houston, 3 Tex. 433; Lockhart regarded as settled, not only that a corporation may v. White, 18 id. 110. In Regina v. Lumley, L. R., 1 be sued in tort, but that it may be indicted for a failCr. Cas. Res. 196, it was said: “In an indictment for ure to perform certain public duties which the law or bigamy, it is incumbent on the prosecution to prove

its charter imposed upon it. See Freeholders v. to the satisfaction of the jury that the husband or Strader, 3 Harr. 108; Regina v. Birmingham & Glo. R. wife, as the case may be, was alive at the date of the | Co., 9 Car. & P. 469; Susquehanna & Balt. Turnp. Co. second marriage. That is purely a question of fact. | v.People, 15 Wend. 267; Commonwealth v. Proprietors The existence of the party at an antecedent period of Newburyport Bridge, 9 Pick. (Mass.) 142; Regina v. may or may not afford a reasonable inference that he Great North. Ry. ('0., 9 Ad. & El. (N. S.) 319; State v. (or she) was living at the subsequent date. If, for ex- | Vt. Cent. R. Co., 27 Vt. 108: Commonwealth v. Proample, it were proved that he was in good health on prietors N. B. Bridge, 2 Gray, 339. West Virginia the day preceding the second marriage the inference Sup. Ct. of Appeals, June Term, 1879. State v. Balliwould be strong, almost irresistible, that he was living more & Ohio Railroad Co. Opinion by Green, P. J on the latter day, and the jury would, in all probability, find that he was so. If, on the other hand, it were proved that he was in a dying condition, and nothing

RECENT ENGLISH DECISIONS. further was proved, they would probably decline to draw that inference. Thus the question is entirely

CARRIER OF PASSENGERS — DUTY TO FURNISII SAFE with the jury. The law makes no presumption either

MEANS OF ALIGHTING.– Plaintiff took a return ticket way." Texas Ct. of Appeals, Jan. 24, 1880. Hull v. Lat Richmoud station on the S. company's line. over State of Texas. Opinion by Clark, J.

which defendants had running powers. On his return CORPORATION — MAY BE INDICTED FOR SABBATH

journey plaintiff travelled in defendant's train, manBREAKING. - A corporation may be indicted for

aged by defendants' servants. In alighting at Rich“Sabbath breaking" under the Code of West Vir- |

mond station he was injured owing to the carriage, ginia, which provides that “If a person on a Sabbath

which was built to suit the stations on defendants' own day be found laboring at any trade or calling, or em

line, being too high above the platform. Held (affirmploy his minor children, apprentices, or servants in

ing the judgment of the Common Pleas Division), that labor, or other business, except in household or other

defendants were bound to provide reasonably safe work of necessity or charity, he shall be fined not less

means of alighting, and that there was evidence to than five dollars for each offense.” The modern au

justify a verdict for plaintiff. Great West. R. Co. v. thorities agree that corporations are liable for torts

Blake, 7 H. & N. 991 ; Thomas v. Rhymney R. Co., L. committed by their agents in the discharge of the busi

R., 5 Q. B. 226; S. C., 6 id. 266; Marshall v. York, etc., ness of their employment and within the proper range

R. Co., 11 C. B. 655; Austin v. Great. West. R. Co., L. of such employment; and that too, whether the tort

R., 2 Q. B. 442; Dalyell v. Tyrer, 28 L. J.52, Reynolds be one the responsibility for which is to be enforced

| v. North-East. R. Co., Roscoe's N. P. 596, (14th ed).

: by an action on the case,or by trespass. See Yarborough

Ct. of Appeal, March, 1880. Foulkes v. Metropolitan v. Bank of England, 16 East, 6; Rex v. Mayor of Strat

District Railway Co. Opinion by Bramwell, Bagford, 14 id. 348; Regina v. Birmingham, etc., Co., 3 Ad.

gallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 345. & E. (N. S.) 223; Maund v. Monmouthshire Canal Co., 4 LEASE - COVENANT AS TO USE OF PREMISES -Man. & G. 452; Chestnut Hill & Spring H. Turnp. Co, v. WAIVER BY ACCEPTING RENT.- The defendants held Rutler, 4 Serg.& R.16; Whiteman v. Wilmington & Susq. certain premises of the plaintiffs for a term of years R. Co., 2 Harr. (Del.)514; Bloodgood v. Mohawk & Hud. | under a lease whereby the lessees covenanted not to permit or suffer, at any time during the said term, to invited to compete for this prize. Its founders, by be used, exercised, or carried on upon the premises, or limiting the privilege of contending for it to lawyers any part thereof, any art, trade, profession, or busi of five or more years' stauding, appeal to the experiness whatsoever, without the license or consent in enced portion of the profession, to renew the emulawriting of the lessor, first obtained for that purpose. tions of scholastic life, under the conviction that this The lease contained a power of re-entry upon breach of would be one of the methods of increasing devotion covenant. The lessees had, by consent, made some al- to the science of law among lawyers, and an acquaintterations in the premises, and part of the new building ance with its principles among the people. was occupied by two of the defendants as plumbers, The Coinmittee hope that the response to this inviand they carried on their business there in a shop tation will be such as to secure those ends. suited for the purpose. There was no written license JOHN I. GILBERT, Chairman, Malone, 4th Dist., or consent of the lessor for this business, but two LEWIS L. DELAFIELD, N. Y. City, 1st Dist., quarters' rent was paid as usual by the lessees after JOSHUA M. VAN COTT, Brooklyn, 2d Dist., the business commenced, with the lessor's knowledge DENNIS B. KEELER, Syracuse, 5th Dist., of this use of the premises. There was no evidence of ELLIOTT DANFORTH, Bainbridge, 6th Dist., the nature of the plumber's tenancy, but within a year GEO. H. HUMPHREY, Rochester, 7th Dist., of its commencement the plaintiffs took proceedings GEO. WADSWORTH, Buffalo, 8th Dist., to recover the land on the ground of a forfeiture by a

Committee on Prizes. continuing breach of the covenant. Held, that it could not be presumed that a plumber's business would be commenced upon a less tenancy than a year of the

NEW BOOKS AND NEW EDITIONS. shop in which it was to be carried on; and that the plaintiff's waiver of the breach by receipt of rent was

ABBOTT'S TRIAL EVIDENCE. sufficient under the circumstances to render these pro Trial Evidence. The Rules of Evidence applicable on the ceedings ineffectual. Q. B. D., March 8, 1880. Griffin v. trial of Civil Actions (including both causes of action Tompkins. Opinion by Lush and Mauisty, JJ., and and defenses) at common law, in equity, and under the Cockburn, C. J., 42 L. T. Rep. (N. S.) 359.

Codes of Procedure. By Austin Abbott, of the New
York Bar. New York: Baker, Voorhis & Co., 1880. Pp.

XXX, 884.
NEW YORK STATE BAR ASSOCIATION. THE plan of this work is entirely novel, so far as we

I know. It “assumes that the reader is familiar SUBJECT AND REGULATIONS FOR THE Post-GRADUATE

with the general principles of the law of evidence, and PRIZE OF Two HUNDRED AND FIFTY

is concerned with their proper application in actual DOLLARS, FOR 1880.

practice.” In a word, it assumes to instruct the practitioner exactly how to try every kind of case, so far

as the evidence is concerned. It states the appropriate THE Committee on Prizes of the New York State

evidence in every class of actions; it describes the I Bar Association announce the following subject mode of proof; it treats of the weight and sufficiency and regulations for the Post-graduate prize of $250 of evidence, of witnesses and documentary evidence, for 1880:

and of the effect of the Codes on the rules of evidence. First. — The Post-graduate prize of $250 for 1880 will

In preparing his case, if the practitioner wants to know be awarded to the writer of the best original thesis, exactly what he must prove and how to prove it, here argument or work upon the following subject: “The | is his guide. It is therefore a practical as distinguished propriety of regulating commercial intercourse (espe from a theoretical work of evidence, and if well execially that relating to railroads) between the States by | cuted cannot fail to be the most important and useful National legislation; or, what National legislation (if text-book issued in many years. That the work is any) should be had to regulate commercial intercourse | faithfully performed the reputation of its author is a between the States.'

sufficient guaranty. All of Mr. Abbott's previous Second. — The essay must be sent to the Chairman work is characterized by exactness, thoroughness, and of the Committee, at Malone, on or before the fifteenth discrimination, and we have dipped into this large volday of September next, sigued merely with a nom deume sufficiently to be warranted in saying that it is plume, and accompanied with the real name of the worthy of his reputation. The rules are neatly and writer in a sealed envelope. Only the envelope con- clearly stated, and every rule is fortified by reference taining the name of the author of the winning essay to authorities. There is an analytical table of conwill be opened; all others will either be destroyed un- tents and also a good iudex, but no table of cases cited. opened, or returned with the accompanying manu- The book should find a place in the library of every script to the author upon his request. The successful lawyer, and should lie at the right hand of every judge essay will be the property of the Association, and all and referee. Indeed, we cannot see how our profesthe other essays, not requested to be returned, will be sion brave so long done without such a work. The filed for preservation in the archives of the Association. typography is very compact but legible enough, and Third. — The prize will be awarded at the annual

the paper is of the best. meeting of the Association in Albany, on Tuesday, the 16th day of November, 1880.

V BRADWELL'S REPORTS. Fourth. – Only those can compete for this prize who

Reports of the Decisions of the Appellate Courts of the State are members of the Bar of the State of New York, of

of Minois. By James B. Bradwell. Volume V Confive or more years' standing, and the prize can only be

taining all the remaining opinions of the first district awarded when there shall be at least five competitors.

up to March 29, 1880, all the remaining opinions of the Fifth. — Every production submitted will be exam second district up to the June term, 1880; all the reined by each member of the Committee, and the award maining opinions of the third district up to the May of the prize will be made by the Committee upon a term, 1880, and a part of the opinions of the fourth dismajority or plurality vote; or in case of a failure of a trict of the February term, 1880. Chicago : Chicago plurality vote, by the Chairman, from those produc.

Legal News Co., 1880. Pp. 692. tions having the highest and equal votes.

We note the following cases: Egan v. City of ChiSixth. – No member of the Committee on Prizes cago, p. 70. — An action may be maintained against a shall in any manner compete for said prize.

city for services rendered, in pursuance of a resolution The members of the legal profession are cordially l of its common council, in examining the walls of a

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