« AnteriorContinuar »
cial importance by the vastly increased number and holder is driven to the necessity of instituting a suit scale of industrial undertakings in civilized society for collection, and then only as to the expenses of such within the last few generations, is historically con collection. In the case of Sperry v. Harr, 32 Iowa, 184, nected by descent with notions so remote from our the stipulation in the note was: “If not paid when due, present frame of mind that it requires an effort for a and suit is brought thereon, I hereby agree to pay colcivilized man to understand them. It would be rash, | lection and attorney's fees therefor," and the note was however, to jump at the inference that a rule whose held to be negotiable. The court say, in the opinion: descent can be so traced is nothing but a relio of bar “The agreement for the payment of attorney's fees in barism. The doctrine of vicarious liability has per no sense increased the amount of money which was sisted in the jurisprudence of civilized people for so payable when the note fell due, and we are unable to long a time and with such general acceptance that it see that it rendered that amount uncertain in the least must in some way commend itself to the political degree. It simply imposed an additional liability in common-sense of mankind, whose traditions, difficult | case suit should be brought, and such liability did not as it may be to put them into a logical form, are often become absolute until an action was instituted. This more to be trusted than any direct caloulation of agreement relates rather to the remedy upon the note, utility that can be made with the means at our com if a legal remedy be pursued, to enforce its collection, mand.-The Pall Mall Gazette.
than to the sum which the maker is bound to pay. It is not different in character from a cognovit, which,
when attached to promissory notes, does not destroy STIPULATIONS ALLOWING COSTS OF COL
their negotiability." LECTION IN PROMISSORY NOTE.
The same proposition is affirmed in Carr et al. v.
Louisville Bank Co., 11 Bush (Ky.), 180, in which the SUPREME COURT OF KANSAS- JULY TERM, 1877.
court declares that “the reason for the rule, that the
amount to be paid must be fixed and certain, is that the SEATON, plaintiff in error, v. SCOVILLE ET AL.
paper is to become a substitute for money, and this it A note otherwise negotiable is not rendered non-nego
cannot be unless it can be ascertained from it exactly tiable by the addition of a stipulation to pay costs of collecting, including reasonable attorney's fees, if suit how much money it represents. As long, therefore, as be instituted thereon.
it remains a substitute for money, the amount which A note payable in Topeka was, on August 5th, legally protested there and notice thereof forwarded by mail by
it entitles the holder to demand must be fixed and the banker who held the note for collection to the
certain; but when it is past due it ceases to have that owners at Fort Scott. Notice when received was sent by them by mail to the indorser at Atchison. It took a peculiar quality denominated negotiability, or to perletter two days to go by mail from Topeka to Fort Scott.
form the office of money, and, hence, any thing which and two days to go in like manner from Fort Scott to Atchison. The indorser received the notice on August
only renders its amount uncertain, after it has ceased 10th. The 9th was Sunday. Held, that a tinding that to be a substitute for money, but which in nowise legal notice had been given must be sustained although it appeared that there was a daily mail between Topeka
affected it until after it had performed its office, canand Atchison, and that all parties except the notary not prevent its becoming negotiable paper." Dietrich knew where the indorser resided, and although it was not shown at what exact hour the notice was deposited
v. Baylie, 23 La. Ann. 767; Stoneman v. Pyle. 35 Ind. in the post-office at Topeka or at Fort Scott, or received 103. That it is no longer an open question in the latter by the owners or indorser, or what hours the mail left
Topeka or Fort Scott, or reached Fort Scott or Atohison. State is evident from the cases of Wyant v. Poltorf, 37 T'RROR to the District Court of Atchison county.
Ind. 512, and Walker v. Wollen et al., 4 Cent. L. J. 248. V The facts appear in the opinion.
See, also, Dinsmore v. Duncan et al., 57 N. Y. 573, and
Zimmerman v. Anderson, 67 Penn, St. 421, in which David Martin, for plaintiff in error.
last case a stipulation, waiving appraisement, stay of B. P. Waggener, for defendant in error.
execution, etc., was held not to affect the negotiability BREWER, J., delivered the opinion of the court. of the paper; Bradley v. Lill, 4 Bissell, 473, in which This was an action upon the following note:
the promise was to pay a certain amount with ex" $250.00. TOPEKA, KAN., June 24, 1874.
change, and the amount of the exchange not stated, “ Thirty-nine days after date we promise to pay to
and still it was held to be negotiable. And, on the the order of John Seaton, at the Topeka Bank and
same point, see Smith v. Kendall, 9 Mich. 241; JohnSavings Institution, Topeka, Kansas, two hundred and
son v. Frisbie, 15 id. 286; Leggett. v. Jones, 10 Wis. fifty dollars, with interest at twelve per cent per an
34; Gutacap v. Woulwise, 2 McLean, 581; contra, Bank num after due until paid; also costs of collecting,
v. Gay, 63 Mo. 33; Samstag v. Conly et al., 5 Cent. L. including reasonable attorney's fees, if suit be instituted
J. 29. It seems to us, however, a just conclusion that on this note Value received.
paper, otherwise negotiable, is not rendered non“Topeka Rolling Mill Co., by
negotiable by a stipulation for the payment of costs
of collection, including attorney fees, in case suit is “R. D. COLDREN, President."
brought thereon. And the first question presented is, whether this was A second proposition of plaintiff in error is, that if a negotiable note; and the claim is, that because of the | the note be considered negotiable, notice of non-paystipulation for payment of costs of collection and at ment was not given within a reasonable time, so as to torney's fees, the amount duo on the paper is uncer charge the indorser. The evidence upon this point tain, while both the common law and the statute define showed that the protest was made August 5, 1874, and negotiable paper as drawn for a “sum or sums of that the said John Seaton did not receive notice thereof money certain.” Story on Prom. Notes, $1; Gen. until August 10, 1874; that said John Seaton resided Stats., 81, p. 114. This claim cannot be sustained. in Atchison, Kansas, within the knowledge of all the The amount due at the maturity of the paper is oer- parties, except the notary at Topeka, making protest, tain, and the only uncertainty is in the amount which and was in business and attended the post-office two shall be collectible in case the maker defaults at the or three times every day; that Atchison was and is maturity of the paper in his promise to pay, and the I the terminus of the Atchison, Topeka and Santa Fe railroad, a daily mail route, and is also the terminus whether the notary did or did not know of the resiof the Missouri Pacific or Atlantic and Pacific railroad, dence of John Seaton, or whether said Seaton resided a daily mail route; that Topeka is situated on said nearer to Topeka than Fort Scott, the residence of Atchison, Topeka and Santa Fe railroad, fifty miles plaintiffs. Eagle Bank v. Hathaway, 5 Meto. 212; from Atchison; that the notice to said John Seaton Triplett v. Hunt, 3 Dana, 128; Farmer v. Rand, 4 Shep. was transmitted in the same envelope with the certifi 453; 3 Kent's Com., side p. 106, and note; 2 Greenl. cate of protest to the plaintiff at Fort Scott, where on Ev., $ 187; 1 Parsons on Notes and Bills, 513. And, they resided, and said notice was sent by the plaintiff again, a banker or agent to whom the paper has been to the said John Seaton, and that it took two days for transmitted, for the purpose of obtaining acceptance a letter to go by mail from Topeka to Fort Scott, and or payment, is, so far as the question of notice is contwo days from Fort Soott to Atchison, Kansas, and cerned, to be considered as though he were the real the said note was placed in a Topeka bank, at Topeka, holder and his principal a prior indorser. He may Kansas, for collection and protest if not paid when | notify only his principal, and such principal has the due, and was in said bank when so due, and after pro- same amount of time in which to give notice to prior test was returned to plaintiffs at Fort Scott, Kansas. parties. 1 Am. Lead. Cases, side p. 394; 2 Greenl. on
No question is made upon the protest, providing the | Ev., $ 187a; Byles on Bills, side p. 224. note was negotiable. Upon this we remark that it Now, applying these principles to the case, and it rests upon the party seeking to charge an indorser to was proper for the notary at Topeka to forward notices prove a legal notice. No presumptions arise in his to plaintiffs at Fort Scott, without mailing any directly favor. It is a question of fact, and the onus probandi to Seaton at Atohison, and whether he did or did not is upon him. But, like any other question of fact, it know of Seaton's place of residence. Notice leaving is to be settled upon the testimony as it is given, and Topeka by the mail of the 6th, would reach Fort need not be proved beyond the possibility of mistake. Scott on the 7th; leaving Fort Soott on the 8th, would A reasonable construction must be given to the testi reach Atchison on the 9th. It was received by Seaton nony, and reasonable inferences may be drawn from on the 10th. But the 9th was Sunday, so that he reit. And if, from this, it appears that legal notice was ceived it on the very day that he should have received given, it will be sufficient, although it at the same time it, going by the first mail and in the usual time. It is appears that further testimony, more full. explicit true that the testimony fails to disclose the exact and definite, might possibly show an unwarrantable hours at which the notice was mailed at Topeka, or at delay on the part of some one of the various parties. Fort Scott, or of the departure of the mails from those We are not to prosume facts that are not proven, and places, or of the arrival of the mails at Fort Scott or we may rest upon the testimony given and any rea Atchison, or the receipt of the notice by plaintiffs or sonable inferences to be drawn from it.
Seaton, and if all these facts were disclosed it might We remark again, that where the holder and the possibly appear that there was, either on the part of party to whom notice is to be given reside at different the notary at Topeka or of the plaintiffs at Fort Scott, places it is generally sufficient if notice is sent by the such a delay in forwarding notice as would discharge mail of the day next succeeding the day of dishonor. the indorser. But upon the testimony as it stands we Williams v. Smith, 2 B. & Ald. 501; Bray v. Hadmen, think there was no error in the finding that due dili5 Maule & Selwyn, 68; Bank of Alexandria v. Swan, 9 gence had been used in giving notice.” 1 Parsons on Peters, 33. It is sometimes said that it must go by Notes and Bills, 517, and cases cited in note. the next practicable mail, and, on the other hand, A final proposition of the learned counsel for plaintiff where the mail of the next succeeding day starts at an | in error is, that “neither the pleadings nor the proofs unseasonable hour, it will be sufficient if it is deposited show any right of the plaintiffs below to recover in the post-office at any time on that day so as to be against Mr. Seaton.” The petition alleges that plainready for the mail of the succeeding day. Our statute tiffs are the assignees in bankruptoy of the Fort Scott says," within a reasonable time." Gen. Stat., p. 115, Coal and Mining Company; that they have full power $7. What is a reasonable time is generally a question and authority to prosecute this action; and that John of law for the courts. Byles on Bills, marginal p. 322, Seaton indorsed and transferred to plaintiffs said note, and cases in note. 2 Greenf. on Ev., $ 186. We are giving copy of indorsement, and that they are now the not in this case advised as to the hour of the departure holders and owners thereof. No denial is made of of the innil from Topeka for Fort Scott, or from Fort these allegations. It is said by counsel that it does Scott for Atchison, and so no question of seasonable not appear that Seaton was ever indebted to the coal Dess and unseasonableness of such hour is before us. company, and that assignees in bankruptoy have no We can, then, only fall back upon the general rule that general power or authority to discount notes, eto., in the notice must be deposited in the post-office in time behalf of their estates, and that no special authority for the mail of the next succeeding day. In other from the bankrupt court is alleged. It is unnecessary words, the protest having been on the 5th, the notice to inquire whether the petition could not have been must have left Topeka in the mail of the 6th, or at attacked by motion, or the authority of plaintiffs challeast been deposited in the post-office in time for such lenged by answer. Nothing of the kind was attempted. mail. Again, the holder of protested paper is not The defendant was content to go into trial upon the obliged to give notice to all prior parties - he may admission, by failure to deny that plaintiffs were the simply give notice to his immediate predecessor on owners and holders of the paper, that they acquired the paper, and then such predecessor has the same title to it by indorsement to them, and that they had time in which to notify his predecessor, and so on. | full authority to prosecute and maintain this action. So that, where there are many parties to dishonored | As they could not be the owners and holders witbout paper, the first indorser may not receive notice of the having authority to receive title by the indorsement, dishonor for weeks or months thereafter, and that, and as it is not questioned but that, under some cirtoo, although all the parties reside in the same vicin- cumstances, they could legally take title to such paper, ity. In the case before us it is entirely immaterial we think the general allegations of the petition, un
challenged by motion, answer or evidence, are suffi and each court is lighted from above, having no buildsient to sustain the judgment.
ing over it. There are two entrances in Carey street Upon the whole record we see no error, and the set apart for the judges, and one for the bar. Two judgment will be affirmed.
large rooms, one at either end of hall, are devoted to
the bar, and rooms for library and refreshments are NOTE. - The foregoing decision upon the question of the negotiability of notes of the character mentioned is in
not wanting. direct conflict with the case of Woods v. North, recently
So far with reference to the western portion of the decided by the Supreme Court of Pennsylvania, and re building, which occupies two-thirds of the space. The ported 16 Albany Law Journal, 116.
great quadrangle, round which the eastern portion of the building stands, measures about 300 feet in length
by about 100 feet in breadth. In this portion of the THE NEW LAW COURTS.
building, which begins on the south side in the Strand, THE following from the Solicitors' Journal is the best runs up the whole length of Bell-yard and some disI description we have met with of what will be tance along Carey street on the north are grouped on when finished the most extensive court-house in the three floors some of the most important offices in conworld. We refer to the New Law Courts in London, nection with the conrts. The offices of the masters of now approaching completion:
the common-law divisions occupy the southern end It may be interesting to attempt a slight sketch of and about a third of the way up Bell- yard, and on the the nature of the accommodation to be provided. The court floor the chancery registrars occupy the rest of plan of the building, as is well known, is in form a the building, being two-thirds of the length of Bellrectangular parallelogram, measuring about 450 feet on yard, and a short distance along Carey street. Uneach of its four sides. Roughly speaking, the whole derneath the court floor in this part of the building of the space inclosed within this boundary is occupied are the offices of the taxing masters, the record and by an outer row of buildings and two interior quad writ clerks, and the report office. Spacious storage rangles, one of which is taken up by the large central room in the cellars is provided for keeping the records hall; or perhaps it gives a more correct idea to say of the courts, which are exceedingly voluminous. that the whole plan consists of two quadrangles, round The original project comprised a building of more one of which are grouped the offices and round the than 900 apartments, including twenty-two courts, but other the courts, this last being roofed over and the necessity for modifying the scheme has caused all forming the central hall. The length of this hall is 200 superfluous accommodation to be abandoned. As it feet and its breadth 50 feet. Eighteen courts, seven on is, we believe there will be not less than 700 aparteach side and two at either end, surround the hall. ments in the building. All the corridors will be Entering from the Strand the public may use the hall warmed by means of hot-water pipes, and the rooms as a promenade, but they will not find it so easy to go by ordinary open fireplaces. In various parts of the into and out of the courts as it now is at Westminster building are lifts, for the purpose of raising coals to Hall. The level of the Strand is eighteen feet below the several floors, and the sanitary arrangements are that of Carey street, and the courts are on the Carey everywhere very complete. Protection against fire is street level, so that, standing on the floor of the hall, provided by hydrants in every corridor, and all the which is a little above the Strand level, the courts are floors are fire-proof. all on an upper floor, and cannot be approached di The enormous building will, when completed and rectly from the hall. There is, in fact, no public com fully occupied, present a busy scene. It is estimated munication between the central hall and the courts. that not less than a thousand officials will enter the If an idler desires to go the round of the courts he building daily to perform their duties, the barristers must come out again into the Strand, and, turning and solicitors whose business will take them into the either to the right or left, will find a doorway leading building will probably number five hundred; then to a winding staircase which will take him to a corri | there are witnesses and jurymen, and lastly, the idlers dor which gives access to a gallery in every court. and sightseers. The eastern portion of the building This corridor is provided for the special behoof of the was contracted to be finished this month, and by the public, and the idler will not there be jostled either time this is in print the greater part of the scaffolding by judges, barristers, solicitors, jurymen or wituesses. on the front toward Bell-yard will have been removed. Taking each row of courts as it runs up the side of the The unsightly hoarding will be shortly taken away, central hall, there is a corridor for the bar on one side, and replaced by an iron railing. and a corridor for the judges on the other side. Solicitors, and jurymen, and witnesses will be able to
GENERAL TERM ABSTRACT. enter the courts from the corridors on the level of the hall, which are immediately below those of the bar and
SUPERIOR COURT OF BUFFALO. the judges. The offices of the chief clerks of the chancery division open out of the solicitors' corridors,
AGENCY. and are underneath the courts.
1. Authority of agent to execute negotiable paper, when But to return to the courts. The corridor for the not implied.-The power of an agent to bind his prinjudges is so arranged that every judge can communicate cipal by a negotiable instrument can be conferred only by means of it with every other judge, and all along | by the direct authority of the principal, except where the ccrridor will be found the judges' entrances to the by necessary implication the exercise of such a power court on the one hand, and their retiring-rooms on the is indispensable to carrying on the business in which other. In the corrider devoted to the bar are the en- | the agent is employed, or where it is usually or custrances to the courts on the one side, and on the other tomarily exercised in such business, or where the are sundry consultation-rooms. All the courts, ex- agent has customarily exercised such a power with the cept two at the south end of the hall, are so placed as knowledge of the principal. An agent employed in to be far removed from the noise of street traffic, I carrying on the business of a meat, market for and in the name of the principal, has no authority, by impli- descriptive of the manner, purpose, or feeling with cation from the nature of that business, to bind his which the material acts of the parties were done. principal by a negotiable note given in the course of People ex rel. Hogan v. Haberstro. Opinion by James that business. Park v. Lesher. Opinion by James M. M. Smith, J. (Special Term). Smith, J.
2. The complaint alleged, in substance, that the de2. The defendant's husband conducted for her and feudant being engaged in the business of carrying pasin her name, and upon premises owned by her, the sengers for hire, agreed with the plaintiff, in considbusiness of a meat market; and the defendant was eration of the fare paid by him, to carry him from A ndebted to P. for lumber furnished and used in erect to B; that under this agreement he took passage in ing an ice-house upon those premises. The plaintiff defendant's cars, but the defendant failed to perform sold and assigned to defendant, through the agency of its agreement, and carelessly, negligently and wrongher husband, an account against said P., for the pur fully carried defendant beyond B, maliciously refusing pose of being used as an offset against P.'s claim, to stop the cars so that he could leave them at B, and the husband executed in her name a negotiable whereby, etc. Held, that a cause of action upon conpromissory note, expressly charging her separate estate tract, and not in tort, was here set forth, and that, with the payment. It did not appear that defendant therefore, an execution against the plaintiff's person ever knew of the existence of this note before suit for costs could not issue. Ib. brought. Assuming that the note was given in the course of the business conducted by the husband for
RECENT ENGLISH DECISIONS. the wife, and that he was authorized to buy the ac
AUCTION. count, it was held, that there was nothing in the nature of that business or transaction from which an
Personal liability: conditions of sale : delay in clearauthority to execute a negotiable instrument could be
ing goods within prescribed time : condition precedent.-implied. Ib.
In an action for the non-delivery of goods, it appeared
that the defendants, who were auctioneers, issued MORTGAGE FORECLOSURE - REFEREE'S REPORT.
printed catalogues, headed “Great Western Railway 1. Report should state reasons as to why premises
Company Catalogue of unclaimed property, etc., should be sold as a whole or in parcels.-When a referee
which will be sold by auction by Messrs. H. & E. (the decides that the property may be sold in parcels with
defendants), on Tuesday, November 7th, and followout injury to the interests of the parties, he should
ing day. By order of the directors of the above comstate the relative situation and value of the several
pany," etc. The catalogue contained, among others, parcels, and which should be first sold, and such other
the following conditions: “The lots to be cleared facts in relation to them as will enable the court to act
away within three days after the sale at the purunderstandingly in making such an order of sale as
chaser's expense, etc. If any deficiency shall arise, will be most beneficial to the parties. Selkirk v.
or from any cause the auctioneer shall be unable to Ascough. Opinion by Sheldon, J. (Special Term).
deliver any lot or portion of a lot, then in such case 2. If he decides that a sale of the whole premises is
the purchaser shall accept compensation. Upon failnecessary, he should state the reasons why that will
ure of complying with the above conditions, the money be most beneficial to the parties. The sale cannot be
deposited in part payment shall be forfeited. All lots of the entirety unless it is necessary, that is, most
unclaimed within the time aforesaid shall be resold beneficial to all parties. It is not a matter of conve
by public or private sale without further notice, and nience; it is a matter of right, arising out of the
the deficiency made good by the defaulter." The necessity of the case and the greater benefit to all in
plaintiff attended the sale, received a catalogue, terested. If he reports that, physically, a sale can be
bought one of the lots, and paid a deposit. He did made in parcels, yet that the property should be sold
not fetch the goods away on Saturday (the last of the as a whole, he should state the reasons for his conclu
three days for clearing), but went for them on the sions, so that the same may be considered by the court.
Monday following, when he was told by one of the Ib
defendants that the lot bad been delivered to another 3. Therefore, where a referee reported that the prop
person. There was evidence that the lot was seen on erty could be sold in parcels without injury to the
Saturday morning in the defendant's possession as if interests of the parties; that his reasons for such
ready for delivery, and that it was usual to delay the opinion are that the mortgaged premises cousist of
delivery of large lots like it till the smaller lots had four adjoining lots, upon two of which there are
been delivered. The plaintiff having been nonsuited, dwelling-houses and the others are vacant; that the
held, first, that on the face of the catalogue and conwhole premises are incumbered by a mortgage of $800 now due and which is a lien thereon prior to plaintiff's
ditions, there was evidence that the defendants con
tracted personally with the plaintiff for the delivery mortgage; that the whole premises are insufficient in
of the goods purchased by him. Secondly, that the value to pay the mortgage of $800 and the plaintiff's
condition as to clearing the lot within three days was claim; and, therefore, he recommends that the whole
not a condition precedent to the plaintiff's right to of said premises be sold together for the convenience
claim delivery. Woolfe v. Horne, L. R., 2 Q. B. D. of the parties. Held, for the reasons above stated,
355. that this report was insufficient. Ib.
BILL OF LADING.
Transfer of : rights as between transferee and unpaid 1. Nature of cause of action, whether ex delicto or ex vendor : valuable consideration : stoppage in transitu.contractu: how determined.-The nature of the cause The transfer of a bill of lading for valuable consideraof action, whether ex contractu or ex delicto, is to be tion to a bona fide transferee defeats the right of stopdetermined by the facts which are alleged as consti page in transitu of the unpaid vendor of the goods, tuting the cause of action, not by words which are although the consideration was past and not given at neither issuable nor material, and which are merely I the time the bill of lading was handed to the trausferee by the lawful holder. In December, 1875, G. &
LANDLORD AND TENANT. Co. purchased from defendant a shipment of nuts, to Lease of a furnished house : implied condition of fitbe paid for by acceptance at three months on receiptness for occupation.-In an agreement to let a furof shipping documents. On the 1st of January, 1876, nished house there is an implied condition that the G. & Co., being already indebted to plaintiff, applied house shall be fit for occupation at the time at which to him for a further advance, which, he said, he would the tenancy is to begin, and if the condition is not give, but they must first cover their account. G. & fulfilled the lessee is entitled thereupon to rescind Co. promised to give him cover (not naming any par the contract. The defendant agreed to rent the plain. ticular securities), and plaintiff at once advanced them tiff's furnished house for three months from the 7th a further sum of £2,000. On the 4th of January the of May, but having at the beginning of the intended bill of lading of the nuts, indorsed in blank, came tenancy discovered that the house was, owing to deinto the possession of G. & Co. from defendant, and fective drainage, unfit for habitation, refused to octhey accepted defendant's draft; and on the follow cupy it. The plaintiffs repaired the drains, and on ing day they handed the bill of lading to plaintiff with the 26th of May tendered the house in a wholesome other securities, in fulfillment of their promise to give condition to the defendant, who refused to occupy or him cover. This transaction between plaintiff and to pay any rent. Plaintiffs having sued for the rent G. & Co. was bona fide. On the arrival of the ship on and for use and occupation, held, that the state of the the 3d of February, G. & Co. having in the mean house at the beginning of the intended tenancy entitime stopped payment, defendant sought to stop the tled the defendant to rescind the contract, and that nuts in transitu, and plaintiff claimed them under the | he was not liable for the rent or for use and occupabill of lading. Held, that the plaintiff had a good tion. Smith v. Marrable, 11 M. & W. 5; 12 L. J. (Ex.) title as against the defendant. Rodger v. Comptoir 223, approved. Wilson v. Finch Hatton, L. R., 2 Ex. D. d'Escompte de Paris, L. R., 2 P. C. 393, dissented from. 336. Leask v. Scott Brothers, L. R., 2 Q. B. D. (C. A.) 376.
STATUTE OF FRAUDS.
Lease : option of holding after three years (29 Car. CARRIER OF PASSENGERS.
2, c. 3) ss. 1, 2: 8 & 9 Vict., c. 106, 8. 3.- By writing, Railway company: by-lau8: passenger failing to pro
not under seal, plaintiff agreed to let, and defendduce ticket: demand of fare: penalty or forfeiture.
ant to take, “from the 14th February next until By one of the by-laws of a railway company it was
the following midsummer twelve months, and with provided that any passenger traveling without a ticket,
right at end of that term for the tenant, by a month's or failing or refusing to show or deliver up his ticket,
previous notice, to remain on for three years and a should be liable to pay the fare from the station
half more.” Held, reversing the judgment of the Exwhence the train originally started. Held, that, be
chequer Division, that this was a valid lease, not exfore the by-law could be enforced by the company, a
ceeding three years (viz., until midsummer twelve demand must have been made for the amount of the
months), and therefore a deed was not required. Ct. fare at the time the offense was committed. Semble (1)
App., June 15, 1877. Hand v. Hall, 36 L. T. Rep. (N. that such a by-law is not void for uncertainty. Semble
S.) 765. (2) that the fare to be so paid is in the nature of a pen
VENDOR AND PURCHASER. alty or forfeiture. Q. B. Div., June 7, 1877. Brown v.
Rent: use and occupation : admission by demurrer.Great Eustern Railway Co., 36 L. T. Rep. (N. S.) 767;
Claim, that by an agreement for the purchase by the S. C., L. R., 2 Q. B. D. 406.
plaintiffs of property belonging to the defendants, the CRIMINAL LAW.
purchase was to be completed on the 29th of SeptemRape: consent: submission : carnal connection under | ber, 1869, from which time the plaiutiffs were to repretense of surgical operation.—The prisoner professed ceive all rents and profits and to pay interest on the to give medical and surgical advice for money. The purchase-money until the completion of the purchase. prosecutrix, a girl of nineteen, consulted him with re- That the purchase was not completed until the 13th of spect to illness from which she was suffering. He ad- March, 1876, and that the plaintiffs bad duly paid the vised that a surgical operation should be performed, and interest. That the defendants had remained in posunder pretense of performing it, had carnal connection session, but had paid no rent. That the plaintiffs with the prosecutrix. She submitted to what was done, claimed rent for use and occupation at the rate of £150 not with any intention that he should have sexual con
per annum as a fair value. The defendants demurred. nection with her but under the belief that he was merely Held (atfirming the judgment of the Queen's Bench treating her medically and performing a surgical oper Division), that under the agreement a fair rent must ation, that belief being willfully and fraudulently in
be paid by the defendants for the time they remained duced by the prisoner. Held, that the prisoner was
in possession, and that by demurring they had adguilty of rape. Reg. v. Barrow, L. R., 1 C. C. 156,
mitted £150 a year to be a fair rent. The Metropolitan questioned. The Queen v. Flattery, L. R., 2 Q. B. D. Raiway Co. v. Defries, L. R., 2 Q. B. D. (C. A.) 387. (C. C. R. ) 410. FALSE REPRESENTATION.
RECENT AMERICAN DECISIONS. Contagious disease, animals affected with: sale in market : implied representation that animals not suffer
SUPREME COURT OF OHIO.* ing from disease : conditions of sale.-A person who
HOMESTEAD. sends animals destined for human food to a publio market for sale, impliedly represents that they are, so
Mortgage of: interest of wife of debtor. - A mortgage far as he knows, not infected with any contagious dis
of premises, no part of which constitutes the family ease dangerous to animal life; and a condition of sale
homestead of the mortgage debtor, at the time of that they are to be taken with all faults" does not
the execution and delivery of the mortgage, although negative or qualify this representation. Ward v. Hobbs,
not executed by the wife, is not affected by the subseL. R., 2 Q. B. D. 331.
* To appear in vol. 29, Ohio State Reports.