« AnteriorContinuar »
the grantee, or his heirs, as the ground of an escheat. unquestionable in the several opinions delivered in the This is the better doctrine. See, also, Bigelow on Sinking Fund Cases, 99 U. S. 700. But for the proEscheat, 246, and the authorities there cited; Nieto v. vision in the Constitution of the United States which Carpenter, 7 Cal. 527. Iu support of the general doc forbids impairing the obligation of contracts, the trine of estoppel see the following authorities: Wel power to amend and repeal corporate charters would land, etc., Co. v. Hathaway, 8 Wend. 480; Carver v. be ample without being expressly reserved. The rezJackson, 4 Peters, 1; Laney v. Laney, 4 Ind. 149; Gat ervation of the right leaves the State where any soveling v. Rodman, 6 id. 289; Conklin v. Smith, 7 id. 107; reignty would be if unrestrained by express constituBarnes v. McKay, id. 301; Morris v. Stewart, 14 id. | tional limitations, and with the powers which it 334; State v. Stanley, id. 409; Junction R. Co. v. Har would then possess. It might therefore do what it pold, 19 id. 347; Burton v. Reeds, 20 id. 87; Berry v. would be admissible for any constitutional governAnderson, 22 id. 36; Fletcher v. Holmes, 25 id. 458; ment to do when not thus restrained, but it could not Lore v. Wells, id. 503; Joyce v. First Nat. Bank of do what would be inconsistent with constitutional Madison, 62 id. 188; Hadley v. State, 66 id. 271. Reid principles. And it cannot be necessary at this day to et al. v. State of Indiana. Opinion by Biddle, J. enter upon a discussion in denial of the right of the EVIDENCE -- ON ACTION FOR SEDUCTION - ILLICIT
government to take from either individuals or corporINTERCOURSE OF FEMALE. - It is abundantly estab
ations any property which they may rightfully have lished that in an action for seduction the woman
acquired. In the most arbitrary times such an act was seduced cannot be asked on cross-examination, for the
recognized as pure tyranny, and it has been forbidden purpose of showing her bad character, whether she has
in Eugland ever since Magna Charta, and in this counnot bad criminal intercourse with other men, nor for
try always. It is im material in what way the property the purpose of impeaching her if she deny it. Shattuck
was lawfully acquired; whether by labor in the ordiny. Myers, 13 Ind. 46; 5 Wait's Act. and Def. 667; 1
ary avocations of life, by gift or descent, or by making Greenl. Ev., $ 458; 2 id., S 577 ; Hoffman v. Kemerer,
profitable use of a franchise granted by the State; it 44 Penn. 452; Doyle v. Jessup, 29 Ill. 460. In the lan
is enough that it has become private property, and it guage of this court in the case of Bell v. Rinker, 29
is then protected by the law of the land.” Even Ind. 267, supra, “character could not be attacked or
municipal corporations, though their charters are in sustained by proof of specific acts." But in such an
no sense contracts, are protected by the Constitution action by a woman seduced, under a statute allowing
in the property they rightfully acquire for local purher to bring it, such questions may be asked for the
poses, and the State cannot despoil them of it. Terrett purpose of showing the paternity of a child brought
v. Taylor, 9 Cranch, 43; Pawlet v. Clark, 9 id. 292; forth by her and of affecting the damages. Walker v.
State v. Haben, 22 Wis. 660; People v. Common CounState, 6 Blackf.1; Hill v. State, 4 Ind. 112; Townsend
cil, 28 Mich. 228. City of Detroit v. Detroit & Howell v. State, 13 id. 357; Whitman v. State, 34 id. 360. Smith
Plank Road Co. Opinion by Cooley, J. v. Garagan. Opinion by Worden, J.
HIGHWAY – ALLEY IN CITY NOT.- An alley in a city can in no proper or legal sense be considered as a
public highway, or governed by rules relating thereto. MICHIGAN SUPREME COURT ABSTRACT.
While the city may have, and undoubtedly has, cerAPRIL, 1880.
tain limited rights therein for municipal purposes, yet
the public have no general right of way over or through CONSTITUTIONAL LAW – STATE UNDER POWER TO
the same. It is designed more especially for the use AMEND CHARTER CANNOT TAKE AWAY PROPERTY
and accommodation of the owners of property abutRIGHTS FROM CORPORATION.- A State statute pro
ting thereon, and to give the public the same unqualividing that no plank road company organized under a
fied rights therein that they have in and to the use of general act mentioned, to which the statute was an
the public streets would defeat the very end and obamendment, should maintaiu a toll-gate within the
ject intended. Paul v. Detroit, 32 Mich. 110. corporate limits of a city or village without the con
Any obstruction to the right of passage through sent of the local authorities, or collect toll for any por
or to the proper use of any alley, by those entition of its road within such limits in which a pave
tled thereto, cannot, therefore, be considered as a ment was maintained by the municipality, held,
public wrong. The grievance, if any, is an individual invalid where the effect of its enforcement would be
one, and for which there may, for a willful or unnecesto deprive a company of the right to take toll on two
sary obstruction, be a private remedy. Bagley v. and a half miles of its road, and the fact that the
People. Opinion by Marston, C. J. general act contained a provision authorizing the MARRIED WOMAN — MAY BE ENTITLED TO SERVICES Legislature to amend, repeal, or alter such act, would PERFORMED IN HUSBAND'S FAMILY.- Under a statute not affect the result. There is no well-considered which had been held to authorize a married woman to case in which it has been held that a Legislature under | carry on business on her own account with the consent the power to amend a charter might take from the | of her husband, held, that she might with his consent corporation any of its substantial property or property | be entitled to perform for compensation services in his rights. See Albany, etc., R. R. Co. v. Brownell, 24 N. family, such as attending upon his aged, blind and imY. 345. It was there decided that although the Legis becile father, who lived with her husband. No dislature might require railroad companies to suffer high tinction can be drawn between the services of the wife ways to cross their tracks, they could not subject the performed in and about the house and those perlands which the companies had acquired for other formed elsewhere, as a foundation for a claim to repurposes to the same burden, except in connection covery for her own benefit. If the husband can with provision for compensation. The decision was consent to her giving her time and attention to the in accord with that in Commonwealth v. Essex Co., 13 management of a millinery or dress-making establishGray, 239, 253, in which, while the power to alter, ment, or to any other regular business, away from her amend or repeal the corporate franchises was sus own, and if this makes the business her own, there tained, it was at the same time declared that “no seems to be no conclusive reason why she may not amendment or alteration of the charter can take away consent to her making her services in the household the property or rights which have become vested un available in the accumulation of independent means der a legitimate exercise of the povers granted." The on her own behalf. He relinquishes her right to her same doctrine is clearly asserted and affirmed in Rail- services in the one case no more than in the other, and road Co. v. Maine, 96 U. S. 499, and is assumed to be | perhaps in the last case the ordinary course of marital relations is least disturbed. In Tillman v. Shackleton, gence cannot be determined until one or the other of 15 Mich. 447, the business for which the wife was pre these conclusions has been drawn by the jury. The paring was that of keeping boarders; and in Merri inference to be drawn from the evidence must be weather v. Smith, 44 Ga. 541, she was to give her certain and incontrovertible, or they cannot be depersonal labor in the cultivation of a cotton crop. In cided by the court. Negligence cannot be conclusively the well considered case of Peterson v. Mulford, 36 N. established by a state of facts upon which fair-minded J. 481, the labor in the proceeds of which the wife was men may well differ. Detroit & M. R. Co. v. Van protected was picking berries, boarding children, sell Steinberg, 17 Mich. 99; Railroad Co, v. Stout, 17 Wall. ing milk, butter, eggs, etc. Mason & Dunbar. Opin 657 ; West Chester & P. R. Co. v. McElwee, 67 Penn. ion by Cooley, J.
St. 311; Barron v. Eldredge, 100 Mass. 455; Doorman
v. Jenkins, 2 Ad. & El. 256. The degree of negligence VIRGINIA SUPREME COURT OF APPEALS is a question for the jury. How much care will, in ABSTRACT.
a given case, relieve a party from the imputation of JANUARY TERM, 1880.*
gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending
upon a great variety of circumstances, which the law MORTGAGE - OF GOODS TO BE MANUFACTUREN –
cannot exactly define Storer v. Gowen, 18 Me. 174. WHEN VALID IN EQUITY.- A., being the owner of a
177. The question of gross negligence was left to the cotton factory, enters into a covenant under seal with
jury by Mr. Justice Story in Tracy v. Wood, 3 Mason, T., which is duly admitted to record, which, reciting a
132. Carrington v. Ficklin's Eær. Opinion by Burks, previous deed of trust by A. to secure advancements
J. made or to be made by T. to A., witnesses that in consideration of the premises and of the advances already SURETYSHIP-UNDERTAKING FOR EMPLOYEE OF CORmade and to be thereafter made by T. for the purchase | PORATION - CONSTRUCTION OF INSTRUMENT -CHANGE of cotton or for other expenditures connected with OF EMPLOYMENT.— E. was employed by the S. Express the manufacture of cotton goods at A.'s factory, the Company as freight clerk at P., and whilst so emsaid A. covenants to deliver to the said T. each yard of ployed executed a bond, with sureties, by which, after cotton goods manufactured by him at the said factory. reciting that whereas E. is to be hereafter employed And T. covenants that he will, from time to time, ad- by the S. Express (Company in its business of forwardvance such sums of money as may be required for the ing by different railroads, etc., packages of any and all purchase of cotton manufactured in said factory, and | kinds, and movable property, including money and sethat he will advance further sums of money as may be | curities for money, E., in consideration of said emrequired to pay hands and necessary expenses incurred ployment and the compensation he is to receive from in running the machinery iu said factory, etc. And it said company for his services, covenants, etc., that he was further agreed between the parties that the said A. | will well and truly perform all the duties required of shall sell no goods manufactured in the said factory, him in said employment, and truly account for all unless upon receipt of a written authority from T. to money, etc., which may come to his possession or conthat effect, specifying the amounts of goods to be sold, trol by said employment, etc. And E. and his sureties the price and terms of sale, and approving the credit | bound themselves for the faithful performance of the of the purchaser; and T. shall receive five per cent for above covenants by E. in the penalty of $2,000. After commissions and guaranty on the entire product of the execution of this bond, E. was raised to the office said factory, whether sold by T. or A., by the authority of principal agent of the company at P., and whilst of T. as aforesaid. And T. is to have the same security acting as such principal agent embezzled money which under the said deed of trust as if this covenant had came into his hands.. Held, there being no dispute been executed at the same time as the deed. Held, about the facts, it is for the court to construe the inthat the covenant by A. is valid in equity to secure to strument, and the jury are bound to take the conT. the cotton and goods thereafter purchased and made struction of the court as correct. The rule, as laid at the said factory, for the repayment to him of all down by Baron Parke in Neilson v. Harford, 8 M. & money advanced or paid by him for cotton to be W. 806, 823, is generally accepted. “The instruction manufactured at said factory and the expenses in of all written instruments,” he says, “belougs to the curred in running the said machinery, whether said court alone, whose duty it is to construe all such inadvances were made before the date of said covenant struments as soon as the words in which they are or afterward. That the covenant having been duly re couched, and the surrounding circumstances, if any, corded, it is notice to all parties claiming under A. have been ascertained as facts by the jury; and it is That the right of T. to the raw cotton, cotton yarn and the duty of the jury to take the construction from the cotton cloth on hand is preferable to the right of an court, either absolutely, if there be no words of art or executioù creditor of A. on an execution issued since phrases used in commerce, and no surrounding cirthe covenant was executed. Holroyd v. Marshal, L. cumstances to be ascertained ; or conditionally, when R., 10 H. L. 19; Beall v. White, 94 U. S. 382, 387; those words or circumstances are necessarily referred Story's Eq. Jur. (9th ed.), S 1040; Dunham v. Railway to them. Unless this were so there would be no cerCo., 1 Wall. 254; United States v. New Orleans Rail- tainty in the law,” etc. See, also, Brown's Leg. Max. road, 12 id. 362; Borst v. Nalle, 28 Gratt. 423. First 104, (side p.); 1 Chitty on Cont. (11th Am. ed.), 103; TalNutional Bank of Alexandria v. Turnbull & Co. Opin bot v. R. & D. R. R. Co., 31 Gratt. 685. And surroundion by Anderson, J.
ing circumstances relied on may be accepted as facts NEGLIGENCE - BAILMENT - QUESTION FOR JURY.
established, in like manner as if found by the jury. It A gratuitous bailee is only liable for gross negligence.
is the province of the court to construe in the light of The question of negligence on the part of au agent, as
the facts, but the construction is limited by the rules a general rule, is a question of fact, and not of law. It
of law to the language employed in the instrument. is only in that class of cases where a party has failed
“The writing,” says Greenleaf, “may be read by the in the performance of a clear legal duty, that when
light of surrounding circumstances in order more perthe facts are undisputed, the question of negligence is
fectly to understand the intent and meaning of the necessarily one of law. When the question arises
parties; but as they have constituted the writing to upon a state of facts on which reasonable men may
be the only outward and reliable expression of their fairly arrive at different conclusions, the fact of negli
meaning, no other words are to be added to it, nor sub
stituted in its stead. The duty of the court in such * To appear in 32 Grattan's Reports.
cases is to ascertain, not what the parties may have secretly intended, as contradistinguished from what corporation, pursuant to the statute of 1854, chap. 87, their words expressed; but what is the meaning of the buildings erected thereon do not become the property words they have used.” 1 Greenl. on Ev., $ 277; Beau of the person owning the fee of the highway upon mout v. Field, 18 Eng. Com. L. Rep. 331; Doe v. Tem which they stand, even though they are allowed to repleman, 24 id. 336, 343. In the case at bar, the obliga main thereon a considerable length of time; and an tion, by its terms, extends to any employment of E. injunction cannot be maintained at the suit of such by the express company, and the sureties are liable to person against a purchaser of the buildings from one the company for the money embezzled by E. whilst of the directors of the late company to restrain him acting as principal agent of the company at P. Collier | from removing them. Johnson v. Heiser. Opinion v. Southern Express Co. Opinion by Burks, J.
by Beckwith, J.
FORECLOSURE - RIGHTS OF MORTGAGEES AS TO SALE SUPERIOR COURT OF BUFFALO.
OF PARCELS.-A mortgagee of two lots of land released GENERAL TERM ABSTRACT.
one of them from the lien of his mortgage, and at the
same time the mortgagor gave a mortgage to B. on the HUSBAND AND WIFE - LIABILITY OF HUSBAND FOR
lot released. Held, that the former mortgagee had a REPAIRS ON WIFE'S HOUSE. — For many purposes a
right to insist that the lot released, the title to which house belonging to the wife, but occupied by the hus
still remained in the mortgagor, should be first sold to band as the home and residence of himself and family,
satisfy a prior mortgage held by another party, Bernmay be regarded as in his possession rather than that
hardt v. Lymburner. Opinion by James M. Smith, J. of the wife. Alexander v. Hard, 64 N. Y. 228. When PLEADING - INFANCY — EVIDENCE NOT OBJECTED repairs become necessary upon the premises, and no ar- | TO.- The defense of infancy must be pleaded in order rangement on the subject exists between them, it would to be available. Where defendant's counsel asked appear to be as much his duty as that of the wife to bear him his age, and the question was uot objected to, and the expense, since he has the beneficial use of the prem no further evidence was given upon the subject, held, ises. In ordering the repairs, she may be regarded as that plaintiff was not precluded from raising the obacting consistently with either character, that of owner, jection, upon exception to the judge's charge to the or as agent of her husband. Where, therefore, the wife jury, that the defense of infancy not being pleaded, directed the person who performed the work to her hus the testimony admitted was, under the issues, wholly band, and the latter promised to pay the bill, and he immaterial. See Hamilton v. N. Y. Cent. R. R. Co., paid similar bills to other persons, it was left to the 51 N. Y. 100. Cutter v. Getz. Opinion by James M. jury to find whether the wife acted as his agent in or Smith, J. dering the repairs - whether he intended to adopt and
JUSTICES' COURTS — MISJOINDER OF DEFENDANTS.--ratify her act as his agent, and make the debt his
The common-law rule that in an action upon contract own; and a verdict for the plaintiff was sustained. In
against several persons alleged to be jointly liable, the such case, therefore, he promises to pay his own debt, | plaintiff must establish the joint liability of all the deand not merely that of a third person. Ross v. Janes.
fendants in order to recover against any of them, no Opinion by Beckwith, J.
longer prevails even in justices' courts. That rule was FORECLOSURE -- DEFENDANT CANNOT SET UP PARA- | adopted when the rules of pleading and practice were MOUNT TITLE. - The only proper parties in a foreclos highly artificial and technical, and the rule itself is ure suit are the mortgagor and mortgagee and those | purely technical. It rested upon the doctrine that the who have acquired rights or interests under them sub | allegations of the pleading must be proved exactly and sequent to the mortgage. The rights of those claiming without the slightest variance. Now, no variance beby title paramount, or in hostility to the title of the tween the pleadings and proofs is regarded, unless it mortgagor, cannot be litigated in such an action. affects the merits and the essential rights of the parWhere, therefore, the complaints avers that a de ties, and amendments are allowed upon very liberal fendant claims an interest in the premises accruing terms. The rule should cease with the reason for it. subsequent to the mortgage and inferior thereto, it is It was adopted in justices' courts from courts of record not necessary or proper for such defendant to set up a and was enforced in the former merely because it was title existing in him which is paramount to the mort established and enforced in the latter. As to the latgage, since no decree can be made in the action which
ecree can be made in the action which ter, the Code has changed it ($ 1204), and there ought will affect such title. Banks v. Walker, 3 Barb. Ch. not to be any difference between the practice in such 438; Holcomb v. Holcomb, 2 Barb. 20; Lee v. Parker, cases in the courts of record and in the inferior courts. 43 id. 611; Brundage v. Dom. & For. Miss. Soc., 60 id. Otherwise, upon a new trial in the higher court (old 204; Lewis v. Smith, 9 N. Y. 502; Merchants’ Bank v. Code, $ 352), there would be this anomaly in the law : Thomson, 55 id. h. Yerkes v. Roots. Opinion by plaintiff could recover against one defendant and disJames M. Smith, J.
miss as to the other, while he could not do so in the MUNICIPAL CORPORATION - NEGLIGENCE.- A por
court below. Therefore, where in an action against
several, upon an alleged joint contract, plaintiff proves tion of the plank of a cross-walk was gone, leaving a space about four feet long, fifteen inches wide, and
one of them liable upon the contract, but fails to estab
lish the liability of the others, he may have judgment eight inches deep, and the plaintiff, before reaching
against one, and be dismissed as to the others. Lowe this space, accidentally tripped and fell therein, break
v. Rommel, 5 Daly, 17; Ackley v. Tarbox, 31 N. Y. 564; ing his collar bone. Held, (1) that the defect in the
McGuire r. Johnson, 2 Lans. 305. Hammer v. Knell. walk was not the cause of plaintiff's fall. (2) That the
Opinion by James M. Smith, J. evidence is insufficient to warrant the conclusion that the hole or space was the cause of the injury received, and that the injury would not have been the same if
CRIMINAL LAW. the plank had remained there and he had fallen upon that. The burden was upon the plaintiff to show that
CONSTITUTIONAL LAW – RIGHT OF TRIAL BY JURY the defect in the walk caused the injury. Luedecke v.
IN VICINAGE. — Under constitutional provisions that Buffalo. Opinion by James M. Smith, J.
“The right of trial by jury shall remain," etc., and TURNPIKE ROAD - ABANDONMENT OF OWNERSHIP that this method of trial shall be guaranteed in every OF BUILDINGS REMAINING THEREON.- Upon the re- | criminal prosecution, held, that a statute providing peal of the charter of a turnpike company, and the that an accused person may be tried in another county abandonment or surrender of its road to a municipal | than that where the offense was committed, the selec
tion of the county of trial being left to State officials ment had been altered so as to read thirteen instead of engaged in the prosecution, was unconstitutional. This “thirty-three" dollars. Kegg was held guilty of right of trial by jury is not described but is under forgery because the words were indorsed on the note stood, as it had existed before and had become kuown by Patterson by his direction, and the court say that in the previous jurisprudence of the State. By impli- “it is unnecessary to determine what would have been cation, at least, even a waiver of its advantages is for- the effect of the indorsement if made by the payee bidden. Nothing is better settled on the authorities without the privity and knowledge of the maker." In than that the Legislature cannot take away a single the case at bar the indorsement may have been no one of its substantial and beneficial incidents. Opin more than a mere private memorandum made by the ions of Judges, 41 N. Y. 550; Ward v. People, 30 Mich. payee, never delivered as a receipt, and not being 116; and even the accused cannot waive any one of the sigued, he had the right to alter it. In the case cited essentials. Work v. State, 2 Ohio St. 296; Cancemi | it was the concurrent act of the parties, and was the v. People, 18 N. Y. 1:28; Hill v. People, 16 Mich. 351; / means employed by them to preserve the evidence of Allen v. State, 54 Ind. 461. Now, that in jury trial it payment. The distinction is apparent. Iowa Sup. is implied that the jury shall be by vicinage, is familiar Ct., April 7, 1880. State of Iowa v. Davis. Opinion law. Blackstone says the jurors must be “of the issue by Rothrock, J. or neighborhood, which is interpreted to be of the
TRIAL- ACQUITTAL CANNOT BE SET ASIDE OR REcounty where the fact is committed." 4 Com. 350.
VIEWED. - It has always been a settled rule of the This is an old rule of the common law. Hawk. P. C.,
common law that after an acquittal of a party upon a b. 2, ch. 40; 2 Hale's P. C. 261; and the rule was so strict
regular trial on an indictment for either a felony or a and imperative that if an offense was committed partly
misdemeanor, the verdict of acquittal can never afterin one county and partly in another, the offender was
ward, on the application of the prosecutor, in any form not punished at all. Hawk. P. C., b. 2, ch. 25; 1 Chit.
of proceeding, be set aside and a new trial granted, Cr. L. 177. This over nicety was long since dispensed
and it matters not whether such verdict be the result with, but the old rule has, in the main, been preserved
of a misdirection of the judge on a question of law, in its integrity to this day. It is true that Parliament,
or of a misconception of fact on the part of the jury. as the supreme power of the realm, made some excep
2 Hale's P. C. 310; 2 Hawk. P. C., b. 2, ch. 47, 8 12; 3 tions, which are enumerated by Mr. Chitty in 1 Crim.
Whart. Am. Crim. Law, $ 3.221; 1 Bishop's Crim. Law, Law, 179, the chief of these being cases of supposed
SS 992, 993. This cardinal rule has been clearly and treason, or misprision of treason, examined before the
definitely settled in England, and has never been Privy Council, and which, under a statute of Henry
modified by legislation there, nor in any other State VIII, might be tried in any county; and offeuses of
in this Union, nor indeed, so far as is known, in any the like character committed out of the realm, and
other country where trial by jury under the common which, by a statute of the same arbitrary reign,
law prevails, Maryland Ct. of Appeals. State of Marywere authorized to be tried in any county in England.
land v. Shields. Opinion by Miller, J. (Appearing 49 But it is well known that the existence of such stat
| Maryland Reports.) utes, with a threat to enforce them, was one of the grievances which led to the separation of the American colonies from the British empire. If they were for
RECENT ENGLISH DECISIONS. bidden by the unwritten Constitution of England, they are certainly unauthorized by the written Con AUCTIONEER - DUTY AS TO GOODS IN POSSESSIONstitution of the American States, in which the utmost | BAILMENT. — An auctioneer has not merely the cuspains have been taken to preserve all the securities of tody of goods intrusted to him for sale, but also an individual liberty. It has been doubted in some States interest in aud possession of them, whether the sale be whether it was competent even to permit a change of on the premises of the owner or in public auction venue, on the application of the State, to escape local room. An auctioneer having been requested by A to passion, prejudice and interest (Kirk v. State, 1 Cold. | sell certain goods, agreed to do so at a warehouse where 314; Osborn v. State, 24 Ark. 629; Wheeler v. State, they were stored by A. The day before the sale he 24 Wis. 52); but this may be pressing the principle too received notice that B claimed the goods, notwithfar (State v. Robinson, 14 Minu. 447; Gut v. State, 9 standing which he put them up for sale and returned Wall. 28); but no one doubts that the right to a trial to A those not sold. B having proved her right to the by a jury of the vicinage is as complete and certain goods, held, that the auctioneer was liable for the value now as it ever was, and that in America it is indefeas- of the goods returned to A, as well as of those sold. ible. 1 Bish. Crim. Law (2d ed.), S 552; Whart. Crim. Williams v. Millington (1 H. Bl. 81) followed. Chan. Law, $ 277; Paul v. Detroit, 32 Mich. 108; Ward v. Div., May 1, 1880. Davis v. Artingstall. Opinion by People, 30 Mich. 116. Michigan Sup. Ct., April 28, 1880. Fry, J., 42 L. T. Rep. (N. S.) 507. Swart v. Kimball. Opinion by Cooley, J.
CRIMINAL LAW - INDECENT ASSAULT ON CHILD. FORGERY -- ALTERATION OFMEMORANDUM INDORSED
On the trial of an indictment for an indecent assault BY HOLDER OF NOTE. - On the back of a promissory
upon a little girl only seven years of age, the child was note, made by L., defendant, who held the note, had examined as a witness. The prisoner's counsel proindorsed, “Received from S. Lloyd the sum of $120.
posed to address the jury on the consent of the child 24-8-74.” This was not signed by any one. Afterward
to the assault. The chairman refused to allow him to he altered the indorsement by changing the $120 to $20
changing the 3120 to $20 do so, ruling that a child of seven years old might suband adding the words “as interest." Held, that in
| mit, but could not give consent to the assault. The the absence of any allegation that the indorsement was
prisoner was convicted. Held, that the conviction intended as a receipt for the benefit of the maker of must be quashed. Following Reg. v. Read (1 Den. C. the uote, an indictment for forgery would not lie.
Cas. 377; 3 Cox's C. Cas. 266). Cr. Cas. Res., May 1, This does not conflict with Kegg v. State, 10 Ohio, 75.
1880. Regina v. Roadley. [Note.-Iu Reg. v. Read the In that case one Patterson owed Kege a note of | jury returned a verdict of "Guilty; the child being an $100. Patterson made a payment of $33.25, and in the assenting party, but that from her tender years she did presence and with the concurrence and by the direc
not know what she was about." An obviously impertion of Kegg, Patterson made this indorsement on the
fect verdict. See Reg. v. Lock, L. Rep. C. Cas. R. 10; note: “Rec'd May 4, 1839, on the within note, thirty
12 Cox's C. Cas. 244.] 42 L. T. Rep. (N. S.) 515. three dollars and 25 cents." Kegg retained the note, I DEED - FROM COMMITTEE OF LUNATIC — EXECUTION. and when presented for final adjustment the indorse- | - A deed to which a lunatic is expressed to be a party
THE ALBANY LAW JOURNAL.
by his committeesjis sufficiently executed by the com- of the word "annually" to the interest clause of a mittees merely affixing seals and signing their own note payable in less than two years is not a material pames. Ct. of Appeal, April 8, 1880. Lawrie v. Lees. alteration, as it does not require the payment of interOpinions by James and Bramwell, L. JJ., 42 L. T. Rep. est at the end of the year. Johnston v. Kimball Town(N. S.) 485.
ship, p. 187.-A surety is not bound by an official bond WARRANTY - ON SALE OF HORSE AT AUCTION. —
not signed by a principal named therein, but delivered Where, at a sale by auction of a horse warranted a
without the surety's knowledge or consent, and the good worker, one of the conditions of sale was that
burden of proving such consent is on the plaintiff. To any horse not answering a warranty must be returned
the same effect is Hall v. Parker, p. 287. Faulks v. by five o'clock on the day after the sale, to be tried by
People, p. 200.- On a prosecution for selling intoxicata competent person appointed by the proprietors of
ing liquor to a minor, it is a good defense to show that the repository where the sale took place, whose decis.
the seller reasonably believed him of age. To same efion should be final, held, that no action could, in the
fect, Farrell v. State, 32 Ohio St. 456; S. C., 30 Am. absence of fraud, be brought by the purchaser for
Rep. 614; and see note, p. 617. Brown v. Barnes, p. breach of warranty, the horse not having been returned
211.- In an action of slander, the pecuniary standing on the day after sale. Ct. of Appeal, Feb. 26, 1880.
of the defendant may be shown to indicate the influHinchcliffe v. Barwick. Opinions by Bramwell, Bag
ence of his speech, but not in itself to enhance damgallay and Thesiger, L. JJ., 42 L. T. Rep. (N. S.) 492.
ages. People v. Cook, p. 236.-Homicide is not justified by the defendant's belief that the deceased bad
administered drugs to the defendant's sister in the NEW BOOKS AND NEW EDITIONS.
unaccomplished endeavor to effect her seduction.
Long v. Battle Creek, p. 323.- An oral proposition by a 39TH MICHIGAN REPORTS.
citizen to a city council, that if the city would build
one-half of a bridge across a certain river, he would THIS volume contains decisions from June 11th to build the other half, or if the city would build the 1 November 22, 1878, thus closing up the gap left ty T whom he would pay for half, is binding ou him if the the reporter, whose last volume is the 41st The vol- | city buildsale bridge. Gregory v. Wendell, p. 337.-AU ume contains 884 pages, is reported by Henry A. agreement fonfuture delivery of stocks, where there Chaney, and is published by W. S. George & Co., of | is no intention of delivering, but ouly of settling the Lansing. It is rich in interest. We briefly uote the difference between the agreed and the market price, is following decisions: Rindskopf v. De Ruyter, p. 1.-An invalid, and "margins " cannot be recovered back. oral order, in Michigan, to the agent of a Wisconsin Woods v. Ayres, p. 345.- Assumpsit cannot be based firm, for liquors to an amount exceeding fifty dollars, on a spontaneous and unasked service, rendered subject to acceptance or rejection on arrival in Mich through kindness or to be more probably accounted igan, followed by delivery to a barrier in Wisconsin, for than by the expectation of payment. Foster v. does not constitute a binding contact under the Wise Schipps, p. 376.- A publication in a newspaper of a consin statute of frauds, and is void under the Mich false.statement that a jity physician, who is appointed igan prohibitory law. This is in harmony with by the common couhoil and not publicly elected, has Hausman v. Nye, 62 Ind. 485; S. ., 30 Am. Rep. 199; caused the death of a patient by malpractice, is not Keiwert v. Meyer, 62 Ind. 587; S. (, 30 Am. Rep. 206. privileged, and is libellous. Mastus v. Houck, p. 431.People v. Bringard, p. 22. — It is embezzlement for a One party to axbuilding contract cannot be compelled town treasurer to appropriate trust funds to private to accept work nøy performed according to the specifipurposes and refuse to account for them, although he cations, and to rely on recoupment for his indemuity. is not bound by law to pay over the identical money Campan v. Langley, p. 451.- A statute permitting the received. McFarlane v. Clark, p. 44. - A probate public sale by a public officer of animals found running judge named as legatee may lawfully make the orders I at large in a public highway, and directing the payof hearing and notice for proof of the will. Brockway ment of the proceeds, less the expenses of sale and v. Innes, p. 47.- An assistant chief engineer of a rail keeping, to the owner, with a certain time for redemproad company is not a "laborer” within the meaning tion, is constitutional. Kelly v. Reynolds, p. 461.- A of provisions rendering the stockholders of corpora will provided, “To my wife the provision made for tions liable for labor debts. The same is held of a | her by the statutes of this State I deem sufficient;" contractor for building the road-bed. Peck v. Miller, and after giving sundry legacies, concluded by giving p. 594. See Stryker v. Cassidy, 76 N. Y. 50; also 21 to the testator's son, "all the residue of my estate Alb. L. J. 405. Gibson v. Cranage, p. 49.- A contract after paying the above bequests, legacies, and my for a portrait to be “satisfactory" to the customer, | debts and the expenses of settling my estate;' held, gives him the option of refusing it at his pleasure. To that the wife took such a share as if the testator had the same effect, Zaleski v. Clark, 44 Conn. 218; S. C., 26 died intestate School District v. Gage, p. 481. — A Am. Rep. 446; also 21 Alb. L. J. 465. Wheeler v. Con- school district cannot be garnished for teachers' wages, stantine, p. 62.- A note valid in Michigan is there pre- the statute prohibiting the garnishment of municipal sumed valid in Indiana; and if an Indiana woman corporations. Teachers' wages are not subject to depleads her disqualification to make a note given by berductions for recognized holidays. Lake Superior Iron for goods purchased by her in Michigan, she must | Co. v. Erickson, p. 492. - Where a mining company support it by proof of the Indiana law. Bullock v. | contracts for the removal of ore, but assumes the duty Taylor, p. 137.- A provision in a note for an attoruey of making arrangements to protect the workmen, it is fee in case of proceedings to collect is void. Liddle liable to the contractor's employees for injury in conv. Needham, p. 147.- An oral agreement by A to B for sequence of neglect of that duty. Cordes v. Miller, p. land to be deeded by him to C is void, although B 581.- A lessee of wooden building, covenanting to redeeds the land accordingly. Keer v. Kingsbury, p. build in case of fire, is released by the enactment of a 150.- Erections made by a lessee on the leased prop valid ordinance prohibiting the erection of wooden erty do not come within a subsequent mortgage of the buildings. Cumpar v. North, p. 606.- Uuder a statpremises, although the lessee neglects to remove them ute prohibiting the disclosure by a physician of informaduring the term and accepts a renewal of the leasetion acquired in professional attendance and necesfrom a new landlord. Bay County v. Bradley, p. 163. sary to enable him to prescribe, in an action for -A county cannot maintain ejectment to remove ob- damages for a personal injury by defendant's structions from land dedicated as a street, but held violence, a physician is not precluded from diadversely. Leonard v. Phillips, p. 182. — The addition | vulging the plaintiff's admission to him that the