« AnteriorContinuar »
claim was well founded it would defeat plaintiff's. NEW YORK COURT OF APPEALS ABSTRACT.
Such is not the case here. To the owner of goods in
jured in transportation several ways are open. He CORPORATION - LIABILITY OF TRUSTEE— PRESUMP may pay the freight and one for damages, or, refusing TJON AS TO HOLDING OVER — ASSIGNMENT OF STOCK. — to pay, submit to suit, set up his damages by way of (1) In this action plaintiff sought to hold defendant lia counter-claim or bring a cross action. Gillespie v. ble for a debt contracted by a manufacturing corpora Torrance 25 N. Y. 309; Spalding v. Vandercook, 2 tion organized under the general act, on the ground Wend. 432; Batterman v. Pierce, 3 Hill, 171; Dunham that he was a trustee of such corporation when such v. Bower, 77 N. Y. 80. And a payment of freight or a debt was contracted, and that the corporation failed to submission to judgment therefor would afford the carfile and publish the annual report required by section 12 rier no answer to the counter-claim or to the action. of the act (Laws 1848, chap. 40, etc). The debt was con 1 Parsous' Marit. Law, 215; 3 Kent's Com. 225; Gristracted in 1874. The certificate of incorporation was wold v. New York Ins. Co., 3 Johns. 3:21. (2) Plaintiff filed in 1871, in which defendant was named as one of agreed to carry on the deck of his canal boat beans for the trustees “for the first year." There was no proof defendants from one port to another, and to furnish that defendant held over or acted as trustee after the sufficient material to cover them. He was warned by expiration of this term. Held, not sufficient to make defendants' agent that if wet the beans would be inhim liable for debts contracted after the expiration of | jured. He neglected to furnish covering although it this term. There is no presumption that the trustee rained during the time the beans were on his boat's holds over after the expiration of his term. Van Am deck being transported, and the beans were injured by burgh v. Baker, 21 Alb. L. J. 354. (2) In this case de being wet. The consignees of the beans refused to fendant offered to show that in 1873 he filed a petition receive them by reason of their damaged condition, in bankruptcy, including in his assets his stock in the and they were stored on account of the boat. Therecorporation named, that he was adjudged a bankrupt, after, at the joint request of plaintiff and defendants, and that he assigned and delivered this stock to the the consignees took the beans and sold them as they assignee in bankruptcy, which the assignee continues to best could. Held, that the defendants were entitled hold, that he was discharged in bankruptcy, and that to recover for damages sustained by the injury done to since that time he has had nothing to do with the cor the beans, less the freight. Judgınent reversed and poration. Held, admissible as showing that defendant new trial granted. Schwinger v. Raymond et al., appelwas not in 1874 trustee, and that the offer was not too lants. Opinion by Danforth, J. broad. Judgment reversed and new trial ordered. [Decided Dec. 14, 1880.] Philadelphia and Reading Coal and Iron Co. v. Hotchkiss et al., appellants. Opinion by Finch, J.
PARTNERSHIPDISSOLUTION - WHEN PARTY DEAL[Decided Nov. 9, 1880.]
ING WITH FIRM BOUND RY AGREEMENT OF DISSOLU
TION -- VESTING ONE PARTNER WITH CONTROL OF COUNTER-CLAIM - WHEN ADMISSION OF PLAINTIFF'S LIQUIDATION - FACTOR. - It is well settled that while CLAIM DOES NOT SHUT OUT - CARRIER - LIABILITY a factor to whom goods are sent for sale, without inFOR DAMAGE TO GOODS CARRIED.-(1) In an action for structions as to the terms of the sale, is at liberty to freight upon beans carried by plaintiff for defendants, sell at such time and upon such terms as he may deem the answer admitted that the amount claimed in the proper in the exercise of a sound discretion, yet he is complaint was due for freight, and set up as a counter bound to obey the subsequent instructions of his princlaim injury to the beans by reason of negligence on cipal as to the sale, although he has made advances, the part of plaintiff in transporting them, to a larger unless the principal, after reasonable notice, fail to pay amount than the freight, and claimed judgment for such advances. Marfield v. Goodhue, 3 N. Y. 62. Upon the difference. To this a reply was interposed. After the dissolution of a firm it is competent for the partthe trial the defendants requested the referee to find ners to constitute one of their number a special agent the facts defendants deemed established and the con for winding up the firm's affairs, and when this is done, clusions of law they supposed would follow, “and each parties who with notice of the arrangement deal in and every of the same and each and every part matters connected with the liquidation with the partthereof." The proposed conclusions of law were; Ders not thus intrusted, are subject to the equitable “ First, that the plaintiff is entitled to recover of the rights of the other partners. Robbins v. Fuller, 24 N. defendants $159.77; second, that the defendants are Y. 572. If the arrangement made comes to the knowlentitled to recover damages of the plaintiff, in the sum edge of the parties dealing with the firm, it is sufficient of $145.2.10; third, the defendants are entitled to to put them on guard, and if they act in disregard of judgment against the plaintiff in a balance $992.33 such knowledge, they must be held responsible for conand their costs." The referee found, first, that plaint sequences which ensue. In the case at bar, the firm of iff was entitled to recover the amount agreed for U. & Co. dissolved; defendant V., who was solvent, freight, stating it; and, second, that defendants were | by arrangement between the partners taking charge of not entitled to recover for injury to their property. | the liquidation and assuming the payment of all the Defendants excepted to the conclusions of law in the debts. U., another partner, who was insolvent, had report and to the referee's refusal to find the second nothing to do with the liquidation. Of these facts and third requests of defendants. Upon appeal the plaintiffs, who had as factors of the firm goods on sale, General Term held that the finding of the referee had knowledge. After the dissolution, V. notified upon the first clause in accordance with the request of plaintiffs not to sell the goods they held as factors, bethe defendant, and the omission of the latter to except | low a specified price. In spite of this notice plaintiffs, thereto, entitled the plaintiff to maintain the judg without notice to V., upon consultation with U., who ment. Held, erroneous. Take defendants' requests was employed by them as clerk, sold the goods at a less together and they asked that they should havo judg price than the one specified. Held, that such sale was ment for the balance. And an exception to the con without lawful authority. The cases of Napier v. Mcclusions of the referee was sufficient. The admission Leod, 9 Wend. 1:20; Gram y. Cadwell, 5 Cown. 489, and by defendants that plaintiff was entitled to freight Porter v. Taylor, 6 M. & S. 156, distinguished. Judgdid not preclude their defense. The cases precluding ment reversed and new trial granted. Hilton et al. v. a defense when the claim is allowed, such as Davis v. | Vanderbilt et al., appellants. Opinion by Miller, J.; Tallcott, 12 N. Y. 184; Bellinger v. Craigue, 31 Barb. Rapallo, Earl, and Finch, JJ., concurred; Folger, C. J., 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 1 and Andrews and Danforth, JJ., dissented. 75 id. 150, rest upon a principle that if defendants' I (Decided Nov. 30, 1880.]
PRACTICE – ORDER FOR PUBLICATION UNDER OLD eral statute conferring upon cities, etc., authority to CODE, $ 135 - WHAT SUFFICIENT TO AUTHORIZE. – To erect and maintain water-works and to that end to authorize a judge to grant an order for the service of borrow money. The Constitution of Illinois provides a summons on an absent defendant, by publication un that “no county, city, town, township, school district, der the 135th section of the old Code, it was sufficient or other municipal corporation, shall be allowed to if the affidavit presented to him contained allegations become indebted in any manner, or for any purpose, tending to show that efforts had been made to find the to an amount, including existing indebtedness, iu the defendant within the State, and that he was not there. aggregate exceeding five per centum ou the value of In such a case the judge was vested with jurisdiction taxable property therein, to be ascertained by the last to pass upon the sufficiency of the proof of the facts assessment for State and county taxes previous to insubmitted to him, and if the proof satisfied him, neither curring such indebtedness." At the time the bonds his order nor the judgment based thereon could be im were issued the debt of the city named was five per peached collaterally. Affidavits upon which such an cent of the assessed value of the property in the city order was granted showed that plaintiff placed in the | as ascertained by the last assessment. The proceeds hands of the sheriff of New York county a summons of the bonds were used in erecting city water-works. in the action, and received from him an official return Held, that the bonds were not valid against the city that he had used due diligence to find defendants in | even in the hands of a bona fide holder for value withhis county, but was unable to do so. The affidavit out notice, and even if it was not practicable at the further alleged that plaintiff's attorney had himself time they were issued for a purchaser to ascertain what made inquiries to find defeudauts, which resulted in was the assessed value of the property of the city at information from a reliable source that they resided in the last assessment. This case differs from those cases another State. Such was in fact the case. Held, that where the bonds recited that they were issued in conthere was sufficient to sustain the order. Order formity with a statute which legally authorized them. affirmed. Belmont v. Coenen et al., appellants. Opin See Town of Colona y. Eaves, 92 U. S. 490; Orleans F. ion by Rapallo, J.; Folger, C. J., and Danforth, J., dis Pratt, 99 id. 682, where it is said that “where the sented.
bonds on their face recite the circumstances which bring [Decided Oct. 5, 1880.]
them within the power, the corporation is estopped to deny the truth of the recital.” Knox v. Aspinwall, 21
How. 642; Kinnicut v. Supervisors, 16 Wall. 464; UNITED STATES SUPREME COURT AB
County of Moultrie v. Savings Bank, 92 U. S. 631; STRACT.
Marcy v. Township of Oswego, 92 id. 637. A recital
that the bonds were issued under the authority of the FRANCHISE - DOES NOT INCLUDE IMMUNITY FROM | statute, and in pursuance of the city ordinance, did TAXATION – RAILROAD.-- A decree in chancery ordered not, necessarily, import a compliance with the Constiin case another sale should not be made that commis- tution. Judgment of U. S. Ciro. Ct., S. D. Illinois, sioners might sell “ all the property, and franchises of” | affirmed. Buchanan, plaintiff in error, v. City of Litcha railroad company. M., for himself and others, made field. Opinion by Harlan, J. an offer for the railroad, in which he said, “I expect a | [Decided Nov. 22, 1880.] full and perfect title to the road, including the State's interest, franchises and privileges." This proposition
REMOVAL OF CAUSE -- UNDER ACTS OF 1866 AND 1867 was accepted by the commissioners and the sale
- WHAT IS FINAL TRIAL OR HEARING.-In an action in reported to the court, was confirmed by decree, which
a State court begun in 1868 for rents and profits, and a treated the sale as one of the “property and fran
reconveyance of real estate held by appellants here, chises” of the company, and directed the commis
there was but a single issue between the parties, to wit, sioners, “in conformity with the previous decrees,”
whether the appellants were the absolute owners of to “make title to the purchasers according to the terms
the property in dispute, or whether they held the title of the contract and former decrees of this court."
in trust for the appellee here. This issue was heard Held, that the purchasers acquired title only to the
and decided in favor of the appellants in the common property and franchises of the company, and that an
pleas where the action was brought. The suit was then immunity from taxation would not, under the rule in
taken by appeal to the Supreme Court of the State, Morgan v. Louisiana, 93 U. S. 217, pass to the pur
where it was again heard and a decision rendered in chasers. The term “franchises" is not synonymous
favor of the appellee here, and the cause was remanded with “rights, privileges and franchises," "rights,
with a direction to take an account between the parpowers and privileges” and the like. This case is dis
ties. In accordance with this decision the case was tinguishable from Humphrey v. Pegues, 16 Wall. 244,
referred to a master, but before his report was filed, so where it was held that an immunity from taxation did
as to enable the court of Common Pleas to make a final pass under a transfer of “all the powers, rights and
decree, appellants, in 1874, filed a petition for a removal privileges" of a railway corporation. Judgment of
to the Federal court under the act of 1866, U. S. R. S., Tennessee Sup. Ct. affirmed. East Tennessee, Virginia
$ 639, subd. 2. Subsequently they filed a petition for and Georgia Railroad Co., plaintiff in error, v. Hamblin
removal under the act of 1867, U. S. R. S., S 639, subd. County. Opinion by Waite, C. J.
3. In both these acts it is provided that the petition [Decided Nov. 29, 1880.]
shall be filed “before the trial or final hearing of the
suit." Held, that the petition for removal was not in MUNICIPAL BONDS — ISSUE IN EXCESS OF CONSTITU- time. The hearing of this case, originally began in TIONAL LIMIT OF MUNICIPAL LIABILITY - RECITALS | the Common Pleas, was transferred by the appeal to IN BONDS - BONA FIDE HOLDER — ESTOPPEL.-Bonds the Supreme Court. That court, on the appeal, had issued by a city in Illinois each contained this recital: the right to re-examine what had been done in the “This bond is issued under authority of an act of the Common Pleas. In effect, it took up the case on the general assembly of the State of Illinois, entitled 'An hearing begun below. If on the appeal the decree act authorizing cities, incorporated towus, and villages below had been reversed and the cause sent back for a to construct and maintain water-works,' approved rehearing, then the final hearing, for the purposes of April 15, 1873, and in pursuance of an ordinance of the the statutes under consideration, would not have begun said city of Litchfield, No. 184, and entitled 'An ordi until the court below bad again entered upon the deternance to provide for the issuing of bonds for the con- mination of the cause. Then the reversal would have struction of the Litchfield water-works,' approved perfected the right to a second hearing in the court of December 4th, 1873." The act referred to was a gen- original jurisdiction, and, under the rule stated in
Vannever v. Bryant, 21 Wall. 43, a demand for the Wall. 636; Hannah v. Swarner, 8 Watts, 11. The transfer might properly be made. Here, however, the question of delivery must be left as a question of fact Supreme Court granted no new hearing. It reversed to the jury upon the whole evidence in the cause. The what had been done below, and then proceeded, under court may instruct the jury to find a delivery, when the original submission, to decree on the merits. It | the whole testimony shows a state of facts from which thus continued the hearing under the original submis delivery is a positive inference of law. But where sion, decided the controversy so for as the primary there is conflicting testimony, the case should be left rights of the parties were concerned, and through the to the jury, with proper instructions. Lindsay v. Common Pleas sent the case to a master to settle the Lindsay, 11 Vt. 621; Murray v. Starr, 2 B. & C. 82. details of the final decree. No power was given the Jones v. Swayze. Opinion by Van Syckel, J. court below to rehear the case, but only to proceed in
MUNICIPAL CORPORATION - IRREGULAR EXERCISE due course with the hearing that had beeu begun until
OF POWER IN ISSUING BONDS DOES NOT INVALIDATE the inquiry as to the whole subject-matter was com
BONDS - RECITALS IN DEED DO NOT ESTABLISH DEED. — pleted. Judgment of U, S. Ciro. Ct., W. D. Pennsyl
(1) Where a municipal corporation had the right to vania, affirmed. Jifkins v. Sweetser. Opinion by
borrow money for a specific purpose on bonds running Waite, C. J.
for twenty years, and by mistake issued bonds for the [Decided Nov. 22, 1880.]
same purpose under another grant of authority, such
bonds running for a less period, held, that the bonds so NEW JERSEY SUPREME COURT ABSTRACT.
issued were legal obligations. An irregularity in the JUNE TERM, 1880.*
exercise of a granted authority will not illegalize the
transaction. If the city officials were mistaken with CONSTITUTIONAL LAW - ACT EMBRACING LIMITED
respect to the mode in which the power was to be exerDISTRICT WHEN NOT LOCAL – FISHERIES.—The Con
cised, the mistake was of no consequence if they had stitution of New Jersey provides that “no general law
the right to effect the same end in another mode. In shall embrace any provision of a private, special or
Township of Rock Creek v. Strong, 6 Otto, 271, it was local character." Held, that a statute regulating the
decided that provisions respecting the rate of interest fisheries throughout the State was not unconstitu
to be paid by town bonds, and the length of time tional with respect to a provision making penal the use
which they are to run, are directory and not of the of nets at certain times in particular counties, such
essence of the power. For illustrations of the applicounties embracing all the waters within the jurisdic
cation of the same rule, see also, Gilchrist v. Little tion of the State. A law is not necessarily of a special
Rock, 1 Dill. 261; Mott v. United States Trust Co., 19 or local character because it prohibits the doing of a
Barb. 569; Northwestern Mut. Ins. Co. v. Overholt, 4 thing in a certain locality. If this were so, a law regu
| Dill. 287. In De Voss v. Richmond, 18 Gratt. 338, the lating the use of the public roads of the State, and
city council were authorized to borrow money and imposing penalties for infringement, would be illegiti
issue bonds, and it was ordered to insert the consideramate, as such a law would be local, in the sense that it
tion on the face of certain bonds. This was not done, prohibited the doing of certain acts in particular
but the instruments nevertheless were held valid, the localities, to wit, within the bounds of the public high
court saying that such direction was not a limitation ways. One cannot see how a law can be said to have
on the power granted. (2) A recital in a bond is not an a special or local character, that does not confer either
estoppel to the obligor setting up that it is not his a particular benefit, or does not impose a particular
deed. The legal rule that makes the statements of a burthen upon the inhabitants of a designated place or
sealed instrument incontestable by the party to it,
grows out of the circumstance that such statements district. It is plain that the law in question is free
are the deliberate utterances of such party, and consefrom such characteristics. Its purpose is to regulate throughout the State a public interest. The operation
quently such rule has no place until it is settled of the statute is as broad as the subject to be regulated,
whether the given instrument be his deed. The refor it extends its adjustments to all the waters under
citals, as against adverse proofs, cannot help to estabthe dominion of the State, and when it imposes the
lish the legal existence of the specialty. If a married restrictions in the clause under criticism, such bur
woman should execute a conveyance declaring in it in
never so solemn a form that she was a seme sole, no one thens are laid not only upon the inhabitants of the two counties that are mentioned, but upon all the citi
would pretend tbat the fact of her coverture could not zens of the State. Doughty v. Connover. Opinion by
be shown. The question is settled in Hudson v. In
habitants of Winslow, 6 Vroom, 437, where it was Beasley, C. J.
directly ruled with respect to the doctrine of estoppel DEED - DELIVERY OF, TO THIRD PERSON FOR USE OF by reason of recitals in sealed instruments, that “the GRANTEE - WHEN EFFECTIVE - WHEN QUESTION FOR principle is applicable only whero the existence of the JURY.-A delivery of a deed to a third person for deed as the act of the party is admitted." See, also, the use of the party in whose favor a deed is made,
made, in accord with this ruling: Chisholm v. Montgomery, where the grantor parts with all control over the deed, 2 Wood's c c. 594. Starin v. Genoa. 23 N. Y. 439: makes the deed effective from the instant of such de
Fairtitle v. Gilbert, 2 T. R. 169; Bigelow on Estop., livery; the law will presume, if nothing appear to the
if nothing appear to the 283; New York and Oswego R. Co. v. Van Horn, 57 contrary, that a man accepts what is for his benefit. N. Y. 474; Shapley v. Abbott, 42 id. 443. Singer ManuGarnons v. Knight, 5 B. & C. 671; Zenos v. Wickham,
facturing Co. v. City of Elizabeth. Opinion by Beas106 E. C. L. 381; S. C., on appeal, 108 id. 435, and on
ley, C. J. final appeal, id. 861; Church v. Gilman, 15 Wend. 656; Ernst v. Reed, 49 Barb, 367; Brown v. Austen, 35
NEW JERSEY COURT OF CHANCERY ABid. 342. The statement in 2 Washb. Real Prop., 581,
STRACT. that “the better opinion seems to be that no deed can take effect as having been bona fide delivered until
MAY TERM, 1880.* such act of delivery has been assented to by the grantee," is not supported by the authorities cited, ATTORNEY - LIABILITY FOR NEGLIGENCE IN INviz.: Maynard v. Maynard, 10 Mass. 458; Jackson v. / VESTIGATING TITLE – LIABILITY FOR INVESTMENT OF Dunlop, 1 Johns. (as. 114; Stephens v. Buff. & N. Y. MONEY.--A bill in equity will not lie against an attorR. Co., 20 Barb. 332. See, also, Young v. Guilbeau, 3 ney for damages for negligence in investigating a titlo, * To appear in 13 Vroom's (42 N. J. Law) Reports.
* Appearing in V Stewart (32 N. J. Eq.) Reports.
but otherwise if such attorney becomes a trustee to his money and does not properly support her, her learinvest. The evidence showing that the attorney, in ing him cannot be held to be a desertion by him. this case, promised the complainant to obtain first Lewis v. Lewis, 2 Hal. Ch. 22. Sandford v. Sandford. mortgages for her, he was held it being a case of Opinion by Runyon, Chancellor. mingled trust and agency) accountable for the amount | NEGLIGENCE - PROXIMATE CAUSE — FIRE COMMUNIof the incumbrances on the property prior to hers, but
CATED BY BURNING OIL ON STREAM.-Damages caused not for any subsequent depreciation in the value,
by negligence, to be recoverable, must be not only its caused by general business depression, the property at
natural, but also its proximate, consequence. And the time or loaning being shown to have been, apart
“proximate," as here used, means closeness of causal from the prior incumbrances, abundant security. Nan
connection, and not nearuess in time or distance, and crede v. Voorhis. Opinion by Runyon, Chancellor.
is intended to qualify the generality of the idea exCONSTITUTIONAL LAW - STATE CANNOT BE SUED | pressed by the word “natural.” In cases where fire is WITHOUT ITS CONSENT.-Sovereign States cannot, with- | negligently started, but is not immediately commuout their consent, be sued in their own courts, where nicated to the property destroyed, but is communicated no provision to the contrary exists in their Constitu- | from one building to auother until it reaches the proptions or by special enactments. In 1872, the Stateerty destroyed, causal connection will only cease when, granted certain lands under water to the West Line between the negligence and the damage, an object is Co., which, as part of the consideration, gave thereon | interposed which would have prevented the damage, if a mortgage of $82,000 to the trustees for the support of due care had been taken. When the burning matter is public schools. The complainants claim that at the oil, a running stream may form a natural link in the time of this grant they were in possession of the mort- chain of causation. Where a fire originates in the gaged premises under an indefeasible title; that the carelessness of a defendant, and is carried directly by grant was in violation of their vested rights; that in a material force, whether it be the wind, the law of 1874, they themselves obtained from the riparian com gravitation, combustible matter existing in a state of missioners of the State a grant of certain contiguous nature, or a running stream, to the plaintiff's property, premises, by an instrument containing an agreement and destroys it, the defeudant is legally answerable for that in case the State had no right and power to vest the loss. Kuhn v. Jewett. Opinion by Van Fleet, the title to the mortgaged premises in the West Line | Vice-Chancellor. Co. by the grant of 1872 (which right the instrument declared was claimed by the State, but denied by the PENNSYLVANIA SUPREME COURT ABcomplainants), then the State should release to the
STRACT. complainants, free from any incumbrance thereon by mortgage giveu to the State, all its right, title and in CORPORATION – INDIVIDUAL MEMBERS OF BOARD terest in the premises. On foreclosure of their mort OF MANAGERS CANNOT BIND, AND CONTRACTS NOT IMgage by the trustees, held, that neither the trustees por | PLIED FROM THEIR DECLARATIONS. – Plaintiff below any prior grantees of the mortgaged premises could be claiming to have been employed by a corporation hayenjoined from proceeding with the foreclosure and sale | ing charge of a county work-house, to sell all the barrels by reason of the agreement in the grant of 1874, or by it should manufacture during a certain year, some two reason of complainant's claim to have it specifically hundred thousand in number, brought action for comperformed, because, even if binding on the State, the missions on making a sale. He endeavored to estabState cannot, in its own courts, be compelled to per-| lish the fact of his employment by proving what had form it, and also because if the trustees are other than | been said by the president of the board of managers the mere agents of the State, it is not binding on them of the corporation, by one of the members of the or on any grantee of the State prior to 1874. Hovenden board, and by the superintendent of the work-house, v. Annesly, 2 Sch. & Lef. 607, 617; Dicey on Parties, 4; each separately and on different occasions. He utterly Michigan State Bank v. Hastings, 1 Walk. Ch. 9; failed to show that any corporate action was had by United States v. McLemore, 4 How. 286; Hill v. U. the board, by virtue of which he was employed, or by S., 9 id. 388; Beers v. Arkansas, 20 id. 527; State v. which the power to employ him was delegated to any Kirby, 2 South. 835; Loder v. Baker, Arnold & Co., 10 | member of the board or to the superintendent. Held, Vr. 49; Priddy v. Rose, 3 Metc. 97; Calvert on Parties, insufficient to prove the fact of his employment. Un252, 253; Trustees v. City of Trenton, 3 Stew. Eq. 669; less they are authorized, the individual members of a State v. Trenton, 11 Vr. 91; Nurse v. Lord Seymour, corporation cannot bind it by an express promise, nor 13 Beav. 254; Michigan State Bank v. Hammond, 1 can corporate engagements be implied from their unDoug. 527; Hill v. United States, 9 How. 388; Osborn authorized and unsanctioned acts or declarations. The v. U. S. Bank, 9 Wheat. 251; High on Inj., $ 266; acts or declarations of a director in a corporation will Freeman v. Elmendorf, 3 Hal, Ch. 475; S. C., on ap not bind or in any manner affect it unless they are peal, id. 658; Drake v. Jones, 27 Mo. 428. American shown to be within the scope of his ordinary powers Dock and Improvement Co. v. Trustees of Public or of some special agency. Ang. & A. on Corp., $ 239; Schools. Opinion by Runyon, Chancellor.
Soper v. Buffalo & Rochester R. Co., 19 Barb. 310. DIVORCE - DESERTION - WIFE LEAVING HUSBAND
Corporate rights are not to be frittered away by loose BECAUSE HE GAMBLES.-(1) That a husband gambles
and unauthorized declarations, made by persons who and does not properly support his wife, in consequence
at the time had no authority to bind the corporation; of which she leaves him, does not constitute desertion
and this principle applies as well to indiridual directors by him on which to decree a divorce. It is a recog.
and employees of a corporation as to strangers. Nor uized principle that when a husband treats his wife
is there any hardship in this, because, as is said in with such cruelty or violence that she is obliged to
Cooper v. Lampteer Township, 8 Watts, 125: “Every leave him for safety, or to aroid personal injury, this
person is supposed to know the restrictions on the compulsory flight amounts to a desertion by him, and
wd power of the officers of a corporation of a public if he does not seek her and try to persuade her to re- bature, and the extent of their authority.” Allegheny turn, with promises of amendment, such compulsory
County Work-House and Inebriate Asylum v. Moore. leaving and consequent remaining away from him, if
Opinion by Sterrett, J. continued for the requisite time, will be regarded as
[Decided October 25, 1880.] equivalent to a willful and obstinate desertion by him. NEGLIGENCE - CONTRIBUTORY, OF PARENTS -- RAILLaing v. Laing, 6 C. E. Gr. 248; Palmer v. Palmer, 7 id. | ROAD COMPANY OWES NO DUTY OF PROTECTION TO 88. But if she leaves him because he gambles away CHILDREN TRESPASSING UPON ITS TRACK. - Parents
who permit their children to trespass upon the prop- is not an infringement, and for the purpose of injuring erty of a railroad company are guilty of negligence; the trade of the other manufacturers, or of the person and where a child of tender years, who is allowed to selling the articles manufactured by them, he is liable wander upon railroad property is injured, the com- to an action. A patentee may be restrained by inpany owes no duty to the child nor to the parent and junction, notwithstanding he has given the notice bona is not liable to either for the injury. In Mulherin v. 1 fide, from continuing to issue the notice where it is Delaware, Lack. & W. R. Co., 31 P. F. S. 366, it was shown that his allegation is not true. Rollins v. Hiuks, said: “Except at crossings, where tho public have a 26 L. T. Rep. (N. S.) 56; L. R., 13 Eq. 355, and Axright of way, a man who steps his foot upon a railroad mann v. Lund, 31 L. T, Rep. (N. S.) 119; L. R., 18 Eq. 330, track, does so at his peril. The company has not only discussed. Chanc. Div., June 10, 1880. Halsey v. a right of way, but it is exclusive at all times and for Brotherhood. Opinion by Jessell, M. R., 43 L. T. Rep. all purposes," and Railroad Co. v. Norton, 12 Harris, (N. S.) 366. 465, was cited in support of the rule. In Philadelphia
EASEMENT - ACCESS OF AIR TO SLAUGHTER-HOUSE.& Read. R. Co. v. Hummell, 8 Wright, 378, it is said
Whero a slaughter-house had been used as such for that children “cannot be upon the railroad without a
upward of thirty years, damages were given for an culpable violation of duty by their parents or guardi
obstruction of access of air, on the ground of implied aus." In Philadelphia & Read. R. Co. v. Long, 25 P.
covenant not to interrupt the free access of air suitaF. Smith, 265, it is said: “To suffer a child to wauder
| ble for the purpose of a slaughter-house. Chanc. Div., upon the street has the sense of permit. If such per
June 20, 1880. Hall v. Litchfield Brewery Co. Opinion mission or su tferance exist, it is negligence." And in
by Fry, J., 43 L. T. Rep. (N. S.) 380. Duff v. Allegheny Val. R. Co., where a conductor of a train, in violation of the rules of the company, per
WILL-ON SEPARATE SHEETS OF PAPER - EXTRINSIO mitted a boy to sell papers on the train, and the boy
EVIDENCE TO SHOW CONSTITUENT PARTS. — M. R. was killed by the uegligence of the company, the right
executed her last will and testament on the 1st August, of his mother to recover was denied, upon the ground
1872. The will was entirely in her own handwriting, that the boy was a mere trespasser, and the company
and was on two sheets of note paper stitched together owed him no duty. Cauley v. Pittsburgh, Cincinnati &
like a book. On the first page of the outer sheet were St. Louis Railroad Co. Opinion by Paxson, J.;
the words, “I appoint my nephews, R. J. G. and R. G. Trunkey and Sterrett, JJ., dissented.
L., to be my joint executors to carry my will into [Decided November 8, 1880.]
effect; I appoint my nephew R. J. G. to be my execu
tor, and sole residuary legatee, M. R. ; and placed with PROCESS — NOT PROTECTION TO PARTY BUT ONLY TO
my will the 1st August, 1872.” The second page of tho OFFICER. - In a suit against the plaintiffs in an execu
outer sheet was blauk. Then followed the will, which tion for seizing and selling property thereunder, they
was written ou the first, second, third and fourth pages must show the judgments on which the executions
of the inner sheet, the signature and attestation clause issued, to justify the taking. The rule is beld differ
being on the fourth page of the said inner sheet. Then ently when the suit is against a sheriff or constable
followed the third page of the outer sheet which was who are ministerial officers. When an execution,
in blank, while on the fourth page of the outer sheet regular in form, and nothing on its face indicates want
was written as an iudorsement the words “The will of of jurisdiction in the justice, is directed to the con
M. R., 1st August, 1872.” At a trial in which the issuo stable and placed in his hands, it is sufficient to protect
was whether the appointment of executors and residuhim in duly executing it according to its commands.
ary legatee on the first page of the outer sheet formed He is not required to examine the record to ascertain
part of the document at the time of the execution whether the justice had jurisdiction, and whether tho
thereof; the attesting witnesses having been called, proceedings are all regular. The apparent regularity
and though able to prove the date of execution of the and presumed jurisdiction, as evidenced by the writ,
document, being unable to say what its contents were not only protect him in its due execution, but make it
or on how many sheets of paper it was written. Held, his duty to proceed to execute the writ. Among the
that the declarations, parol and written, of the testanumerous decisions recognizing this principle may be
trix, both before and subsequent to the execution of cited: Kerlin v. Heacock, 3 Binn. 215; Paul v. Van
the will, as to her intentions at the time of making it, kirk, 6 id. 124; Allison v. Rheam, 3 S. & R. 139; Kings
and as to her subsequent belief that she had carried bery v. Ledyard, 2 W. & S. 37; Moore v. Allegheny
those intentions into effect, were admissible for tho City, 6 Harris, 55; Billings v. May, 11 id. 23; Cunning
purpose of showing what were the component parts ham v. Mitchell, 17 P. F. Smith, 78; Fall Creek C. and
thereof; and that the fact of the will being in existI. Co. v. Smith, 21 id. 230; Savacool v. Boughton, 5
ence, and not lost as in the case of Sugden v. St. LeonWend. 170; Beach v. Furman, 9 Johns. 230; Holden v.
ards, 34 L. T. Rep. (N. 8.) 369, did not affect the quesEaton), 8 Pick. 437. Barr v. Boyles. Opinion by
tion. Probate Div. and Adm. Div., June 22, 1880. Mercur, J.
Gould v. Lakes. Opinion by Sir James Hannen, P., 43 [Decided November 15, 1880.]
L. T. Rep. (N. S.) 382.
RECENT ENGLISH DECISIONS.
NEW BOOKS AND NEW EDITIONS. PATENT — RIGHT OF PATENTEE TO THREATEN LEGAL PROCEEDINGS AGAINST PURCHASERS FROM OTHER MAN
LASCELLE'S HORSE WARRANTY. UFACTURERS — WHEN SUCH NOTICE RESTRAINED. - A | The Law relating to the Purchase, Sale, Letting and Firing of patentee may give notice to persons that they are in Horses, and the Rights and Liabilities of Ippkeepers, fringing his legal rights when such notice is given bona Livery-Stable Keepers and others, using Horses, with fide, without his being bound to follow up such notice
Hints as to Procedure in Cases in Dispute. By Francis
Henry Lascelles. Second edition. London: Reeves & by legal proceedings, and he is not liable, in default of
"Turner, 1881. Pp. xii, 184. his bringing such legal proceedings, to an action for damages or for an injunction restraining him from THIS book is designed for buyers and sellers and issuing such notice; but where a patentee threatens I users of horses, rather than for lawyers, and with the purchasers from other manufacturers, or adver | this limited scope, and for the English market, it is tises that the articles sold by other manufacturers aro well executed. It will not be amiss among lawyers infringements of his patents, knowing that his patent and in this country, although there are no American is invalid, or that the article sold by the manufacturers | cases cited, and we have already a good work on the