Imágenes de páginas

certain personal property required for the use of the grantees at the date of the conveyance were not seized. company. The court held this to be a continuing au- of an estate in fee simple, of the premises on the eastthority, upon which one dealing with Rice had a right erly side of high water and adjoining to the water lot to rely until notified of its revocation. Persons who conveyed, or should make default in the performance deal with an agent before notice of the recall of his of their covenants, that “then and in such case" the powers are not affected by the recall. 2 Kent's Com. grant should be void and the grantors might " forth644, note; Fellows v. Steamboat Co., 38 Conn. 197; Tier with thereupon be seized” of the same. Held, that v. Sampson, 35 Vt. 179; Morgan v. Stell, 5 Binn. 305. It the grantees took a present estate; that the provision held also that a conferring of authority to dispose of the last mentioned was a condition subsequept and not a company's bonds upon one acting as president in the ab condition precedent or a conditional limitation, and sence of Rice was not inconsistent with the authority that re-entry was necessary in case of its breach, to given to Rice and did not revoke such authority. The divest the grantees of their estate. Judgment below judgment of the court below was affirmed.

affirmed. Towle v. Remsen. Opinion by Miller, J.

(Earl, J., dissented.) COURT OF APPEALS ABSTRACT.

2. Right of re-entry does not pass by a conveyance of

the land.- A right of re-entry for a breach of a condiADVERSE POSSESSION.

tion subsequent does not pass by a conveyance of the Lands granted in violation of statute.-A statute pro land, and until there is a re-entry by the grantor or vided that the city of New York might convey lands his heirs or the successors of the grantor for a breach under water, to which it had title, but in such case the

of the condition, the estate is not forfeited, but reowners of the adjoining uplands should have a pre

mains unimpaired in the grantee. Ib. emptive right to purchase. In 1837, the city conveyed [Decided Sept. 18, 1877.] to one not the owner of adjoining uplands, certain

INDORSEMENT. lands under water, and the grantee took possession of Release of indorser by extending time of payment.and improved the property. Held, that possession for Plaintiffs, who held notes to secure a loan, agreed with twenty years would constitute to the grantee a bar by the maker of the notes if he would furnish plaintiffs adverse possession against any claim of the owner of with his own drafts on them to the amount of the loan the upland acquiring title from the city by subsequent | in order that the drafts might be sold in market, they grant. Judgment below affirmed. Towle v. Remsen. would extend the time of the payment of the loan. Opinion by Miller, J. (Earl, J., dissented.)

The maker prepared and stamped the drafts, and fur[Decided Sept. 18, 1877.]

nished them to plaintiff, who sold the same, the APPEAL.

maker bearing the expense of sale. Held, a sufficient

agreement to extend time of payment of the notes to Findings of fact sustained by evidence not reviewable

discharge the indorser, and that there was a valid conhere, but refusals to find are reviewable.- Although this

sideration for such agreement. (Billington v. Wagoner, court will not, where a referee has fouud facts and his

33 N. Y. 31; Place v. Mcllwain, 38 id. 96; Fellows v. findings have been affirmed by the General Term, review

Prentiss, 3 Den. 512; Myers v. Welles, 5 Hill, 463; Dorsuch findings if there is any evidence to support them,

lon v. Christie, 39 Barb. 614; Elwood v. Diefendorf, 5 when the referee has refused to find in relation to ques

id. 398; Hulbert v. Carpenter, id. 520; Lowman v. Yates, tions where there is evidence that might sustain a find

37 N. Y. 601.) Judgment below affirmed. Pomeroy ing in favor of appellant, it will review the decision of

v. Tanner. Opinion by Miller, J. the General Term affirming such refusal, and send the

[Decided Sept. 25, 1877.] case back to the referee with directions to him to pass

JUDGMENT. npon such questions and that the case be then re-heard

1. Purchaser of, without notice takes subject to the at General Term. Judgment below reversed and case sent to referee for further findings. Potter v. Car

equities : neglect to record contracts affecting.–Plaintiff,

to whom a mortgage was offered for sale, objected to penter. Opinion by Rapallo, J.

the purchase on the ground that a judgment against [Decided Oct. 9, 1877.]

the mortgagor held by P. was a prior lien. The owner COSTS.

of the mortgage thereupon procured a written agreeIn appeal from surrogate's decree: when payable out

ment from P. that the lien of the judgment be postof estate.- In an appeal, in a matter relating to the poned to that of the mortgage. This agreement was estate of a decedent, to the Court of Appeals, the court not recorded. P. then sold the judgment to defendheld with the appellants in part and reversed the ant, who knew nothing of the agreement, and execudecree of the surrogate and the judgment of the Gen

tion was moved on the judgment, and the premises eral Term, and in part with the respondents, sustaining

were sold to defendant thereunder. Held, that the one of the grounds affirmed by them and denied by

agreement of P. postponed the lien of the judgment the appellants, and ordered the “costs in this court to

to that of the mortgage, even though the judgment be paid out of the estate.” Held, to authorize the

was in the hands of a bona fule purchaser for value allowance of costs to the respondents and that such

without notice, and the agreement was not recorded, allowance was, under the circumstances, equitable and

and that the sale under execution did not affect the proper. Lawrence v. Lindsay. Opinion by Andrews, J.

priority of the lien. Judgment below affirmed in part, [Decided Sept. 25, 1877. Reported below, 7 Hun, 641.]

and reversed in part. Frost v. Yonkers Savings Bank. DEED.

Opinion by Earl, J. 1. Construction of deed: condition precedent and 3. Mortgage : redemption by junior mortgagee.-Plainsubsequent. - A deed, which conveyed in fee simple tiff held a fourth mortgage and defendant a first mortcertain lands under water, provided that the grantees gage upon the premises mentioned upon which it proshould pay certain quit-rents annually, and also that cured a judgment of foreclosure. Held, that plaintiff "if at any time hereafter it shall appear” that the l was entitled to redeem, and that without satisfying the judgment upon which the execution sale was made. affirmed. In matter of petition of Willett. Opinion by Ib.

Earl, J. 3. Effect of tender by holder of junior incumbrance. [Decided Sept. 25, 1877.] When the holder of a junior incumbrauce tenders the amount of a prior incumbrance and demands a trans

SURETYSHIP. fer, it does not release the lien of the prior incum Rights of surety paying debt to subrogation: trust: brance upon the land, but merely puts such holder in

| keeping security for debt alive.-B., to secure a certain a position to compel in equity the transfer demanded. liability to T., executed to him a note and mortgage. Ib.

His wife also transferred conditionally to T. a con[Decided Sept. 25, 1877. Reported below, 8 Hun, 26.]

tract as security for her husband's iudebtedness to him.

T. and the husband and wife afterward agreed that MARRIED WOMAN.

if the wife would transfer to T. all her rights under Contract by: what does not amount to.-- Testatrix, a the contract T. would assign to plaintiff the note and married woman, not carrying on business, assured

mortgage. This arrangement was carried out, plainplaintiff, who had performed certain services in her tiff, in completing it, advancing money to discharge a family, that she (plaintiff) should be rewarded for lieu upon the wife's rights under the contract assigned what she had done, and also promised to provide for to T. Held, that the note and mortgage were not plaintiff in her will. A legacy of $1,000 was given to

paid, but that plaintiff acquired a good title thereto plaintiff by the will, which was stated therein to be in

and could enforce the same. Order below reversed. full of plaintiff's claim for past services. The real and Hubbell v. Blakeslee. Opinion by Rapallo, J. personal estate of testator was insufficient to pay her [Decided Oct. 9, 1877. Reported below, 8 Hun, 603.) debts. Held, not enough to raise an agreement on the part of testatrix to charge her estate with the payment

WILL. of the value of plaintiff's services within the rule laid

1. Undue influence: what constitutes.-In order to down in Yale v. Dederer, 22 N. Y. 456, which requires that the agreement to charge the separate estate be

set aside a will upon the ground of undue influence included in the original contract out of which the

on the part of beneficiaries, it must be shown that the indebtedness is claimed to arise. (Manhattan B. Co.

influence amounts to moral coercion which restrained v. Thompson, 58 N. Y. 82; Maxon v. Scott, 55 id. 247.)

independent action. Children's Aid Society v. LoverJudgment below affirmed. Eisenlord v. Snyder.

edge. Opinion by Miller, J. Opinion by Rapallo, J.

2. Testamentary capacity: what does not indicate [Decided Oct. 2, 1877.]

want of.- The sensitiveness of an aged invalid which

distorts the best intended acts of old friends and MORTGAGE.

turns with confidence to new objects for relief, held, Relations of purchaser of land assuming payment of, not to show such testamentary incapacity as to render and mortgagor: land primary fund for payment: fore

a will invalid or such imbecility as to raise the preclosure.-- The plaintiff, who owned land subject to a

sumption of undue influence. Ib. mortgage, conveyed it to defendant, who assumed pay- 3. Change in provisions of prior will : burden of proof. ment of the mortgage as part of the consideration for

1 - Where a change is made in a will of a sick persou the conveyance. Defendant conveyed the land to a which is apparently contrary to a previous fixed dethird party, who likewise assumed the payment of the

termined purpose, the court should scrutinize and asmortgage. Held, that as between plaintiff and defend certain if the change was voluntary and intelligent, ant, defendant was the principal debtor and plaintiff and it is upon those proposing the will to show that her surety. But plaintiff had the right to require it was so. Ib. that the land be first applied to the payment of the

1 4 . Family meeting: succeeded by will changing prior mortgage as being the primary fund therefor, and he | will materially.-Where a will was executed after a would be liable only for the deficiency. He was not, in

meeting of certain relatives varying the provisions of order to enforce his liability against defendant, bound

a former will and benefiting those who were present, to pay up the mortgage, but might allow a foreclosure,

there being no other near relatives to call or consult, and the costs of foreclosure could be taken out of the

held, not a just ground of complaint. Ib. proceeds of the land, and defendant would be liable for 5. Will drawn up by those having interest therein.the deficiency. Judgment below affirmed. Comstock

The fact that one interested in a will drew up the v. Drohan. Opinion by Rapallo, J.

same, held, not sufficient reason to exclude the will, it [Decided Oct. 2, 1877. Reported below, 8 Hun, 373.] appearing by other disinterested testimony that the

will was in accordance with testator's expressed deNEW YORK CITY.

sires. Ib. Assessment for paving street previously paved: vaca 6. Want of memory not testamentary incapacity.tion of : evidence.- In a proceeding to vacate an assess A want of memory and other like infirmities incident ment for repaving streets in New York city, under to old age, held, not to constitute testamentary incathe provisions of Laws of 1872, chap. 580, § 7, the pacity. Ib. relief can be granted only in case that an assessment 7. Irregular execution not alone evidence of fraud.for paving the same street has been once actually paid. A hasty and irregular manner of executing a will, And this fact must appear affirmatively, and cannot held, not alone evidence of fraud or undue influence. be inferred from a presumption of payment from the Ib. lapse of time. Accordingly where it was shown that [Decided Sept. 18, 1877.] an assessment for paving was laid in 1831, held, that actual payment of the assessment must also be shown.

WITNESS. v. Ball, 14 N. Y. 477 ; Morey v. F. L. & T. 1. Executor competent at the probate of will.--UnCo., id. 302; In re Scovill, 9 Hun, 234.) Order below 1 der the provisions of the Code of Procedure, sections 398 and 399, the provisions of the statute (2 R. S. 65, But that does not mean, nor does the phrase "due $ 60) are so far modified as to render an executor com- process of law," mean by a judicial proceeding. The petent at the probate of a will. Judgment below af nation from whom we inherit the phrase “due profirmed. Children's Aid Society v. Loveridge. Opin cess of law" has never relied upon the courts of jusion by Miller, J.

tice for the collection of her taxes, though she passed

through a successful revolution in resistance of unTAXATION.-DUE PROCESS OF LAW.

lawful taxation. We need not here go into the literaSUPREME COURT OF THE UNITED STATES-OCTO ture of that constitutional provision, because in any BER TERM, 1877.

view that can be taken of it the statute under consid

eration does not violate it. It enacts that when any MCMILLEN, plaintiff in error, v. ANDERSON.

person shall fail or refuse to pay his license tax the 1. The constitutional provision that no State shall deprive any person of life, liberty or property without due pro

collector shall give ten days' written or printed notice cess of law, does not require that persons taxed by the to the delinquent requiring its payment, and the law of the State shall be present or have an opportunity to be present when the tax is assessed against

manner of giving this notice is fully prescribed. If them.

at the expiration of this time the license “be not 2. Nor does it require that taxes shall be collected by a judicial proceeding.

fully paid the tax-collector may, without judicial 8. A statute which gives the tax payer a right to enjoin its formality, proceed to seize and sell, after ten days'

collection, and have the validity of the tax decided by a court of justice, is due process of law, notwithstand

advertisement, the property” of the delinquent, or ing it requires the party to give security in advance, as so much as may be necessary to pay the tax and in other injunction cases.

costs. N error to the Supreme Court of the State of

Another statute declares who is liable to this tax, 1 Louisiana.

and fixes the amount of it. The statute here comMr. Justice MILLER delivered the opinion of the

plained of relates only to the manner of its colleccourt.

tion. The defendant in error, who was tax collector of the State of Louisiana for the parish of Carroll, seized

Here is a notice that the party is assessed, by the

proper officer, for a given sum as a tax of a certain property of the plaintiff in error, and was about to sell it for the paymeut of his license tax, as a person

kind, and ten days' time given him to pay it. Is not

| this a legal mode of proceeding? It seems to be supengaged in business liable to a tax of $100. In accordance with the laws of Louisiana, plaintiff in

posed that it is essential to the validity of this tax error brought an action in the proper court of the

that the party charged should have been present, or State for the trespass, and in the same action obtained

had an opportunity to be present, in some tribunal

when he was assessed. But this is not and never has a temporary injunction against the sale of the property seized. Defendant pleaded that the seizure was for

been considered necessary to the validity of a tax.

And the fact that most of the States now have boards taxes due, and was what his duty as collector required him to do. On a full hearing, the court sus

of revisers of tax assessments does not prove that tained the defense, and gave a judgment under the

taxes levied without them are void. statute against plaintiff and his sureties on the bond

Nor is the person charged with such a tax without for double the amount of the tax and for costs.

legal remedy by the laws of Louisiana. It is probable Plaintiff thereupon took an appeal to the Supreme

that in that State, as in others, if compelled to pay the Court of Louisiana, and in his petition for appeal al

tax by a levy upon his property, he can sue the proper leged that the law of Louisiana under which the pro

party and recover back the money as paid under duceedings of defendant were had was void, because in

ress, if the tax was illegal. conflict with the constitutions of Louisiana and of the

But however that may be, it is quite certain that he United States, and, as he now argues, is specifically

can, if he is wrongfully taxed, stay the proceeding for opposed to the provision of the 14th amendment of

its collection by process of injunction. See Fouqua's the latter, which declares that no State shall deprive

Code of Practice of Louisiana, articles 296 to 309 inany person of life, liberty or property without due

clusive. The act of 1874 recognizes this right to an process of law.

injunction, and regulates the proceedings when issued The judgment of the Supreme Court of Louisiana,

to stay the collection of taxes. It declares that they to which the present writ of error is directed, affirm

shall be treated by the courts as preferred cases, ing that of the inferior court, must be taken as con

and imposes a double tax upon a dissolution of the clusive on all the questions mooted in the record ex

injunction. cept this one. It must, therefore, be conceded that

But it is said that this is not due course of law, beplaintiff was liable to the tax, that if the law which

cause the judge granting the injunction is required to authorized the collector to seize the property of plain

take security of the applicant, and it is said that no tiff was valid, his proceedings under it were regular,

remedial process can be within the meaning of the and that the judgment of the court was sustained by

constitution which requires such a bond as a condition the facts in the case.

precedent to its issue. Looking at the Louisiana statute here assailed — the

It can hardly be necessary to answer an argument act of March 14, 1873 — we feel bound to say that if it

which excludes from the definition of due process of is void on the ground assumed, the revenue laws of

law all that numerous class of remedies in which, by nearly all the States will be found void for the same

the rules of the court or by legislative provisions, a reason. The mode of assessing tax in the States, by party invoking the powers of a court of justice is rethe Federal government, and by all governments, is

quired to give that security which is necessary to prenecessarily summary, that it may be speedy and effec

vent its process from being used to work gross injustual. By summary is not meant arbitrary, or unequal,

tice to another. or illegal. It must, under our constitution, be law The judgment of the Supreme Court of Louisiana fully done.

is affirmed.


RECENT AMERICAN DECISIONS. Jean Baptiste Duvergier, a distinguished French jurist, died last week in France.

SUPREME COURT OF WISCONSIN.* Ezra Hall, a prominent member of the Hart

RAILROAD. ford, Connecticut, Bar, died in that city on the 3d ult.

1. Duty of company to fence: damage to cattle from He was aged forty-one years.

defective fence: contributory negligence.- Whether or William H. Draper, C. B., Chief Justice of

| not contributory negligence would be a defense to an the Court of Error and Appeal, of Ontario, died on

action for an injury arising from the failure of a railthe 2d inst., after a lingering illness, at his residence road company to construct a fence as required by the at Gorseville, Ontario, in the seventy-seventh year of statute, such negligence may defeat an action for an his age. He was called to the Bar in 1828, elected to Parliament in 1841 and elevated to the Bench in 1847.

injury arising from the failure of the company to main

tain in repair such a fence, once built. Jones v. S. & Isaac M. Sturges, a distinguished member of

F.du L. R. R. Co., decided herewith. Laurence v. M., the Fairfield county, Connecticut, Bar, dropped dead

L. S. & W. Railway Co. on the 31st ult., at his residence in Wilton, in that State. During more than forty years deceased had practiced

2. Burden of proof in actions for injury from failure law successfully, and he was held in high esteem by to fence.- Section 1, chapter, 268, of 1860, and section the profession as a man of rare judgment and tact.

30, chapter 119, of 1872, make railroad companies reHis age was about seventy years.

sponsible for damages occasioned by failure to fence Charles Sumner's first case was a defense of their tracks, as there required; and in an action under one Waylen, indicted in the Municipal Court under a those statutes, the injury complained of must be affirstatute, for sending a challenge to one Alessandro matively shown to have been caused by the want of a Gherardi. In his defense he was associated with George S. Hillard, who afterward became his partner,

proper railroad fence, the evidence connecting the and under the firm name of Hillard & Sumner, occu- | injury with the want of a fence at some point on the pied two rooms on the second floor of the Brooks road (whether near to or distant from the plaintift's Building, the site of the present Sears Building. Sumner occupied the room next to the hall, which he

premises), and showing that the one was the consekept as long as he remained at the Bar. In the early quence of the other. Ib. Decided Sept. 11, 1877. part of 1837, a strong friendship was formed between

RIPARIAN RIGHTS. Cornelius C. Fenton, Henry W. Longfellow, George S. Hillard, Henry R. Cleveland and Sumner. They called 1. Owner of both banks of a stream owns stream.themselves the “Five of Clubs." They were near to Under the uniform decisions of this court, one who each other in age – Longfellow being thirty years, Fen

owns both banks of a stream, navigable or unnavigaton twenty-nine, Hillard and Cleveland twenty-eight and Sumner twenty-six.

ble, has title to the bed of the stream. (A suggestion

by Dixon, C. J., in Wis. R. I. Co. v. Lyons, 30 Wis. 61, The late Charles Sumner in a letter to a

and in Wright v. Day, 33 id. 260, as to the effect of cerclassmate, written while he was attending the Harvard taiu federal decisions on the subiect, criticised.) Olson Law School as a student, writes as follows: "Late to bed and early to rise, and full employment while up, is

v. Merrill.

V. what I am trying to bind myself to. The labor ipse 2. Easement of public to float logs: streams that may roluptas I am coveting. I had rather be a toad and float logs periodically, navigable. - It is the settled law live upon a dungeon's vapor than one of those lumps of flesh that are christened lawyers, and who know

of this State, that streams of sufficient capacity to only how to wring from quibbles and obscurities that float logs to market are navigable; and it is not essenjustice which else they never could reach; who have tial to the public easement that this capacity be conno idea of law beyond its letter, nor of literature be

tinuous throughout the year, but it is sufficient that yond their term reports and statutes. If I am a lawyer, I wish to be one who can dwell upon the vast

the stream have periods of navigable capacity orheaps of law matter, as the temple of which the dinarily recurring from year to year, and continuing majesty of right has taken its abode: who will aim,

long enough to make it useful as a highway. Ib. beyond the mere letter, at the spirit - the broad spirit of the law - and who will bring to his aid a liberal

3. Trespass by the public: excuses for.- If the caand cultivated mind. Is not this an honest ambition? pacity of a stream is such that it can be used as a If not, reprove me for it. A lawyer is one of the best highway without any trespass upon the banks, the or worst of men, according as he shapes his course. He may breed strife, and he may settle dissensions of

right of the public therein is not affected by the fact years."

that such trespass is convenient and habitual. The Oliver P. Morton, who died at Indianapolis,

right of A to float his logs down a navigable stream, Ind., on the 1st inst., was born in Wayne county, Indi

unimpeded by the dam of B, is not affected by the aa, on the 4th of August, 1823. The family name was | lawfulness or unlawfulness of A's dam on the same Throckmorton, but Mr. Morton's father treated the

stream. Ib. first syllable as a separate word, and the surname thus became Morton. Mr. Morton received a fair educa

4. Boundary lines in patents to stream.- Plaintiff tiou, spending two years at Miami University, Oxford, became owner, by divers mesne conveyances, of cerOhio. He was admitted to the bar in 1847. He com tain lots of land patented by the United States, and menced practice in his native State, but was not at first

in all the deeds the lots are designated by their numsuccessful. At the end of ten years, however, he had a very lucrative business. He was chosen circuit judge | bers as specified in the government survey and plat. in 1852, but did not long continue on the bench. In It appears from the field notes of such survey (which 1860 he was elected Lieutenant-Goveruor of Indiana,

are the foundation of the plat), that the lines of the and shortly after assuming the office succeeded to the position of Governor, the Governor elect having

lots extended to and from the pond. Held, that the accepted the office of United States Senator. He was lots, as patented, extended to the pond, although the elected Governor in 1864. Subsequently he was twice then existing line of the pond, and the meander line chosen to the United States Senate, and held the office of Senator at the time of his death. He died of par

as run and marked, may have differed. Ib. alysis, which had affected him for some years and was

5. Claim to land by reliction.-One who claims land by brought on by over work. He was a very able lawyer, but has during the later years of his life been better | * From 0. M. Conover, Esq., State Reporter. To appear known as a politician.

in 42 Wisconsin Reports.

reliction, should show the several stages of the process defendant being under no obligation as carrier to through longer or shorter periode, as determined by carry any person on its road on Sunday. Walsh v. C. the width of the strip uncovered or by comparison | M. & St. P. Railway Co. Decided June 2, 1877. with the bank or other known and fixed objects, so

WILL. that the court may have definite and satisfactory data Execution of.- Under our statute, which requires upon which to determine the character of the relic

that a will not nuncupative), to be valid, "shall be tion; and it was error in this case to determine such a

attested and subscribed in the presence of the testator, claim in favor of the claimant upon mere proof that

by two or more competent witnesses," no subscrippersons watching the process could not see the water

tion to a will by a witness is valid unless made where recede. Ib.

the testator (if he so desires, and is not blind) can see 6. Sudden disappearance of water gives no claim to

the witness subscribe; and it is not sufficient that the riparian owner.-The pond here in question, when

witness, after signing as such in an adjoining room originally surveyed, had an area of 160 acres, and a

outside of the testator's range of vision, brings such depth of four or five feet. By the spring of 1874, a

subscription to the attention of the testator, who strip of the original bed, several rods in width, had

assents to and approves the act. Downie's Will. Debecome bare, and the depth of the water remaining

cided June 2, 1877. was a little more than one foot. In the summer following, the water entirely disappeared. A little water

SUPREME COURT OF PENNSYLVANIA.* gathered there in the spring of 1875, but soon disap

BANKRUPTCY. peared; and the pond seems to have permanently

1. Acts not in fraud of bankrupt law: what does not dried up. Upon evidence of these facts, the court in

amount to preference.- Kemmerer obtained a judgtimates an opinion that as to that portion of the lake bed, which was laid bare after the first-mentioned

ment against Knerr, who afterward purchased land; date, the water disappeared too suddenly and sensibly

within two years the judgment was revived by amicato vest the title in the riparian owner; but it was not

ble scire facias and confession; within four months

of the revival Knerr was adjudged a bankrupt. Held, necessary to decide that question on this appeal. Ib. Decided August 28, 1877.

that the revival was not in fraud of the bankrupt 7. Right of owner of meandering stream to accre

laws. The revival was not out of the usual course of

business; it was not Kemmerer's duty to inquire as to tions: riparian right subject to right of navigation :

Knerr's insolvency. It would have been no infraction boundaries.-The owner of land bounded by any

of the bankrupt law had Kemmerer, knowing Knerr's meandering lake or pond in this State takes, as such,

insolvency, issued execution on his original judgment no fee in the bed or soil under the water; but has a

and thus secured a lien by the levy on the after-acright to accretions formed by slow and imperceptible

quired property of Knerr. Knerr's confession of degrees upon or against his land, and to those portions

judgment of revival was not a preference voluntarily of the bed of the lake or pond adjoining his land,

given by him, within the purview of the bankrupt which may be uncovered in the same manner by relic

law. Kemmerer v. Tool, assignee. tion of the water. The riparian rights above defined

2. Preference not given by passive acquiescence.are subject to the paramount right of the public to

When the act of a debtor does not hasten the remedy use navigable lakes or ponds for the purposes of com

or give a preference or any other advantage which the merce or navigation. If the meandered line of a lake

creditor could not at once have secured, it is not a fraud or pond and the actual water line differ, the latter is

on the other creditors. A mere passive non-resistance the true line of a lot bounded in terms by the meau

to a regular judicial proceeding will not show a preferdered line. Boorman v. Sunnuchs. Decided August

ence to a creditor or a purpose to defeat or delay the 28, 1877. SUNDAY. .

bankrupt act, although the judgment creditor may Contract by railroad to be performed on: general duty

know the insolvency of the debtor. A debtor consentas carrier.-The complaint charges, in substance, that

ing to an amicable action or revival, which gives the the plaintiff, with about eighty other residents of M.,

creditor no advantage which he could not at once have desired to attend certain religious ceremonies at W.

secured by adversary process, does nothing beyond on a certain Sunday; that through their agent they

mere passive non-resistance. Ib. individually contracted with defendant to convey

BIGAMY. them from M. to W. and back on said Sunday, by a What constitutes: cohabitation not necessary.-At special train, which was to leave W. on its return to common law bigamy occurs and is complete when the M. at 5.30 P. M.; that the party was carried to W., but second marriage is accomplished. Bigamy is where defendant did not have cars ready to bring them back one marries a second wife or husband, the first being at the appointed time, but willfully, fraudulently, living. On an indictment for bigamy it is not necesnegligently and carelessly failed and refused to fur sary to prove cohabitation; the crime is complete alnish any means of bringing them back, by reason though there be immediate separation, without cohabwhereof plaintiff was greatly injured in bodily health, itation at all. Gise v. Commonwealth. suffered great pain and anxiety of mind, lost much

BURIAL. time from business, and was subjected to indignities

Right of cemetery association to make rules as to : and insults from the employees of the company. Al rights of lot owners.-An incorporated cemetery comsecond count, similar to the first in other respects, al

pany was authorized to make by-laws, etc., to sell lots leged that the agent of plaintiff and others agreed on in fee simple or otherwise for sepulture alone, under their behalf with defendant to pay a certain sum for such rules as the managers might ordain for the burial said special train for the party. Held, that the action

of the dead, etc. The by-laws provided that there is upon special contract and not for a tort. No action

should be no burial without a written permit from the could be sustained against the defendant for a breach of its general duty as carrier, upon the facts alleged, I * Appearing in 31 P. F. Smith's (81 Penn. St.) Reports.

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