페이지 이미지

See also Wood on Master and Servant, section 202, where it is said:

" While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction."

The doctrine of these authorities, and many others which might be cited is recognized, applied and enforced in German, etc., Church v. Stegner, 21 Ohio St. 488, wherein it is held: “While a promissory note given to and discounted by a corporation for a loan of money in the course of an unauthorized banking business will not be enforced, yet where the treasurer of such corporation has taken and appropriated to his private use moneys deposited with it contrary to the statute against unauthorized banking, and being unable when called on to refund the same, secures it by bis promissory note, such note will not be held to have been given in the course and furtherance of an illegitimate business, and an action will lie thereon."

Judgment of District Court affirmed.




* The

stance, to the ascertained number of the day in the month, the statutory number. Thus an enactmeut passed ou the fifth day of the month, to take effect in ten days, will go into operation on the fifteenth day of the month, because the sum of ten and five is fitteen. The rule of reason therefore may be stated to be, “that of the two extreme days, the one shall be included and the other excluded in the reckoning."

The term specified by the statute for sale is four days after seizure. The collector keeping the property seized beyond the time in which it could be legally sold, is thereby a trespasser ab initio. Brackelt F. Vining, 49 Me. 356; Farnsworth Co. v. Rand, 65 id. 19.

The statutes in Massachusetts on this subject are similar to those of this State. The time when the sale was to be made became an early subject of discussion. In Caldwell v. Eaton, 5 Mass. 399, Parsons, C. J., in considering the question says: “The notice must be given forty-eight hours before the expiration of the four days. It is then a necessary consequence that they must be sold at auction, after they have been kept four days and no longer." In Titcomb v. Ins. Co., 8 Mass. 334, Sewall, J., says: “Shares taken on execution are to be exposed for sale in the same manner as by law prescribed when personal estate is taken on execution. The time for this purpose, allowed and determined by the general statute, is four days. Now when four days had expired and no sale had taken place, a new notice was necessary to legalize a subsequent sale." Iu Howev. Starkworth, 17 Mass. 241, Parker, C. J., citing the last named case, says: sale under the execution would be bad by suffering more than four days to elapse between the seizure on execution and the sale.” To the same effect is the decision in Pierce v. Benjamin, 14 Piok. 356. Such too is the recognized law in this State. “The day of seizure," remarks Shepley, C. J., in Tuttle v. Gates, 24 Me. 395, “is not to be reckoned as one of the four, and the sale cannot be legally made after the fourth day.” The day of seizure not being reckoned, the sale must be on the fourth day. Ordway v. Ferrin, 3 N. H. 69. If the day of the seizure as well as that of the sale, were both excluded, the defendant would be allowed parts of both those days beyond the time required by law. Bemis v. Leonard, 118 Mass. 502.

Tbe sale in the case at bar should have been on the twelfth. The defendant is not to have four whole days and parts of two others. The rule in England is that in case of goods distrained and sold within four days, the days must be calculated inclusively of the last, and exclusively of tbe day of taking. Robinson V. Waddington, 66 E. C. L. 753.

In the Massachusetts statute, the phrase "for the space of four days" occurs as in that of this State. But “the space of four days" embraces no more than four days. Such too has been the practical construction, as is clearly shown by the many decisions to which reference has been made.

The main ground of defense is that Sunday is not to be reckoned as a day. The statute provides that the distress is to be kept "for the space of four days at the expense of the owner," and if the tax be not paid within that time, the distress shall be sold at vendue by the officer for its payment. The expression, “the space of four days," excludes no day. It implies consecutive days. “Sunday,” remarks Byles, J., in Peacock v. The Queen, 93 E. C. L. 264, "at common law, is just like any other day." “Sunday," observes Lord Ellenborough, in Dreswell v. Green, 14 East, 537, “is as much a day to occupy space of time as any ohert day." When the statute prescribes the number of days within which an act is to be done, and nothing is said about Sunday, it is to be included. It was held in Carville v. Additon, 62 Me. 459, that it was no ob. jection to the legality of the collector's proceedings

CRESSEY V. PARKS.* When a statute gives a definite number of days for doing an

act, and says nothing about Sunday, the days are consecutive, and include Sunday. And when the day on which the act is to be done falls on Sunday, the act must

be done on the next day. When chattels distrained are to be sold in a specified time,

the day of seizure is excluded, and the day of sale included
in the reckoning. Thus goods seized on the eighth are to
be sold on the twelfth, when they are to be sold in four
days after seizure.
CTION of trespass. The opinion states the facts.

Case brought here on exceptions. By stipulations in the exceptious, if they were not sustained, the defendant was to be defaulted, and damages were to be assessed by the clerk.

D. F. Davis and C. A. Bailey, for plaintiff.

Barker, Vose & Barker and A. L. Simpson, for defeudant.

APPLETON, C. J. This is an action of trespass against the defendant, a collector of taxes for the town of Glenburn, for seizing and carrying away six tons of the plaintiff's hay for the non-payment of his taxes and selling the same.

By Revised Statutes, ch. 6, $ 104, “If any person refuses to pay the taxes assessed against him * the collector may distrain him by his goods and chat

* and keep such distress for the space of four days at the expense of the owner, and if he does not pay his taxes within that time, the distress shall be openly sold at vendue by the officer for its payment.

The bay was seized for taxes on Saturday, January 8th, and advertised for sale on Thursday, the thirteenth, and thence the sale adjourned to Friday, the fourteenth, when the property seized was sold.

In computing time, the day of the seizure is not to be reckoned. The rule is thus stated by Bishop in his work “On the Written Laws, 107." When a statute specifies a particular number of days, weeks, or years the computation should be made by adding, for in

* To appear in 75 Maine Reports.


tels *

[ocr errors]

that one of the four days during which the distress CONTRACT TO RUN BOAT ON SUNDAY INwas kept was Sunday. So in State v. Wheeler, 64 Me.

VALID. 532, it was decided the draft for jurors was valid, although oue of the four days before the drafting was


JUNE, 1883. Whenever the Legislature intend Sunday shall be excluded from the days within which an act shall be

GAUTHIER V. COLE. done, it is done in express terms, as in chapter 84, section 3. It is never left to implication. When goods

A contract which by its terms must be performed in part on are sold on execution, Sunday is excluded by statute

Sunday made in Michigan to run a boat from one point to from the four days during which the goods seized are

another in that State is void, though the boat in making

the trip must pass through Canadian waters. to be kept. But Sunday is not excluded where the Selector distrains for non-payment of taxes, Revised ACTION PL a contract. Motiou for a new trial after

for gires a specified number of days for doing a particu- ground that the contract was to be performed on Sunlar act, and says nothing about Sunday," observes Hill, / day. J., in Ex parte Simpkin, 2 E. & E., “the days are con- F. H. Canfield, for plaintiff. secutive days, including Sunday." In Asmole v. Goodwin, 2 Salk. 624, it was held “

W. H. Wells, for defendants. to business done out of court, as rules to plead within

... ghould, upon request, send one of their steamers, in

Brown, J. The contract provided that defendants four days, etc. Sundays are reckoned the same as other days." The uniform current of authorities is in continuation of its Saturday's trip, from Alpena to the conformity with this decision up to the present time. Duck islauds or Cockburn island, upon the east shore Thus in Ex parte Simpkin, 2 Ellis & E. 392, it was de- of Lake Huron. Plaintiff's own testimony showed cided that when an act of Parliament gives a specified beyond contradiction that the steamers, upon their number of days for doing a particular act and says Saturday's trips from Bay City to Alpena, did not nothing about Sunday, the days are consecutive days arrive at Alpena until about 3 o'clock Sunday morning, including Sunday. So in this country. In King v. and that they advertised to leave Alpeva for Bay City Doudall, 2 Sandf., section 131, Oakley, C. J., uses this at 6 o'clock on Monday morning. The contract must language: “We know of no rule or principle by which therefore be performed between these hours. The it (Sunday) is to be excluded from the computation testimony further showed that the usual running time when it is an intermediate day,” and we have sup- from Alpena to the islands and back was 12 hours, and posed the law on the subject to be settled.

that the steamer would be detaiued there, lading and The distress for taxes may be made on any day of unlading, about two hours. That would bring her the week, Sunday excepted. The law has not prohibi- back to Alpena about 6 o'clock Sunday evening. ted seizure on any week day. But the property

Comp. Laws, section 1984, provide that “10 person seized cannot be sold on Sunday, not because Sunday shall keep open his shop, warehouse, or work-house, is not a day, but because it is a day on which, by stat

or shall do any manner of labor, business, or work, ute, the execution of civil process is prohibited. Re- except only works of necessity fand charity, * * vised Statute, ch. 81, $ 78. No sale can be made on the on the first day of the week." Defendants' contenpreceding Saturday, when the seizure was made on

tion that this statute must be speciall pleaded cannot Wednesday, because that would be against the pro- be supported. It is true that in England, under the vision of the statute requiring the officer to keep the pleading rules of Hilary term, 4 Wm. IV., illegality of property distrained four days. When then is the sale consideration must have been specially pleaded (Potts in such case to be made? The statutes must be con- v. Sparrow, 1 Bing. N. C. 594); but the rule was otherstrued together. The seizure may be made on any wise at common law. 1 Chitty, Pl. (6th ed.) 511. In secular day. The property seized must be kept four this State illegality of consideration may be shown days by statute. Its sale is prohibited on Sunday.

under the general issue. Myers v. Carr, 12 Mich. 69; Being lawfully seized, it must be sold. As it cannot

Dean v. Chapin, 22 id. 276;' Hill v. Callaghan, 31 id. be legally sold within three days, it must be sold on 425; Snyder v. Willey, 33 id. 489. This was also held to Monday because all official or executive action is pro- be the proper practice under the common-law system hibited on Sunday. The true rule on this subject is of pleading by the Supreme Court of the United States laid down In the matter of Godwiler's Estate, 3 Penn. in Craig v. Missouri, 4 Pet. 410, 426. 200, thus: “Wheuever by a rule of court or an act of

It is difficult, in this case, to see how the plaintiff the Legislature, a given number of days are allowed to can escape the application of the statute. Not only are do an act, or it is said an act may be done withiu a contracts made upon Sunday void, but contracts to do given number of days, the day in which the rule is any manner of work on Sunday are equally within the taken or the decision is made is excluded, and if one inhabition of the act. Allen v. Duffie, 43 Mich. 5; or more Sundays occur within the time, they are

Smith v. Wilcox, 24 N. Y. 353; Berrill v. Smith, 2 counted unless the last day falls on Sunday, in which

Miles (Pa.), 402; Nodine v. Doherty, 46 Barb. 59;

Adams v. Gay, 19 Vt. 358; Slade v. Arnold, 14 B. Mon. case the act may be done on the next day.” To the

287; Palmer v. City of New York, 2 Sandf. 318; Phillips same effect is the opinion of the Supreme Court of

v. Innes, 4 C. & F. 234. Rhode Island in Barrows y. Eddy, 12 R. I. 25. Iu

Nor does the fact that the contract is maritime take Hughes v. Griffith, 106 E. C. L. 323, it was held in the it out of the operation of the statute. While the ordicomputation of time, that when the last day falls on a nary labor incident to the navigation of a ressel must Sunday and the act is to be done by the party, it may undoubtedly go on upon Sunday as well as other days, be done on the next practicable day.

it is neither usual, nor under ordinary circumstances The original notice being defective, no postpone

lawful to load or unload upon that day, or to require ment can cure the original defect. “A valid sale can

seamen to do any manner of work not demanded by

the exigencies of the voyage. Thus in Pate v. Wrighi, not be made at an adjournment which would have

30 Ind. 476, plaintiffs agreed to purchase of defendants been invalid if made on the day adjourned from.”

3,000 barrels of flour for the purpose of shipping the Wilson v. Sawyer, 61 Me. 531.

same to New Orleans, and in anticipation of the comDefendant defaulted. pletion of said purchase, engaged a steamer to take the


flour on board, and transport the same to New with this idea; on the contrary, the fact that there is Orleans. Defendants were notified that the steamer a special provision “that the salary of the mayor shall would stop at the place designated for the delivery of not be increased or diminished from the time of any the flour on Sunday. The court held that they were election until the close of the term;" Gen. St., ch. 41, under no obligation to deliver the flour upon that day, $ 11, according to the maxim“ that the express menalthough there was danger at that time of navigation tion of one thing implies the exclusion of another," is being closed by ice, so that the steamer might be un- evidence of the understanding of the Legislature tbat able to complete her voyage. This, it must be admit- the election to office and its acceptance does not preted, is an extreme case. In the case of the bark Tan- clude the proper authority from changing the comgier (Richardson v. Goddard, 23 How. 28), a distincpensation attached to any office, in the absence of any tion was drawn between a general fast day appointed provision of the Constitution or the statutes to the by the governor of the State and Sunday, and it was contrary. held that there was neither a law of the State forbid- The plaintiff contends that his election and acceptding the transaction of business on that day, nor a gen- ance, at a fixed salary, created a contract, which could eral usage ingrafted into the commercial and mari- not be changed without his consent. Whether this time law fordiddiug the unlading of vessels. See also position is correct we need not decide; but it might be Powhattan Sleamboat Co. V. Appomattox R. Co., 24 urged in answer to it that the plaintiff's election and How. 247. In neither of these cases was it intimated acceptance lack the element of mutuality necessary to that the Sunday laws were inapplicable to maritime make a valid contract. He could not have been com. transactions.

pelled to serve, and no action could have been mainNeither is this case affected by the fact that a por- tained against him if he had refused to serve or had tion of each voyage was to be performed within Cana- resigned at any time. Contracts relate to property dian waters, and that the law of Canada upon the sub- and property rights. An office is neither. It cauject of Sunday observance is not proven. Both the not be purchased, or sold, or incumbered, within the inception and completion of performance were to take ordinary meaning of those terms. The office of city place in this State, and the mere circumstance, that in marshal was a public office, created for the preservathe course of their trips the steamers must pass be- tion of the public peace, and not to subserve private yond the boundaries of the State, does not free the ends. By virtue of his office he was a conservator of contract from its taint of illegality.

the peace. Gen. St., ch, 43, 57. Offices are not incor. A new trial must be denied.

poreal hereditaments, nor have they the quality of grants. They are rather agencies for the accomplish

ment of particular objects. They are created for the REDUCTION OF SALARY OF PUBLIC OFFICER. benefit of the public, and not for the benefit of the in

cumbent. Their tenure is fixed with a view to the NEW HAMPSHIRE SUPREME COURT.

public convenience, and not to confer the emoluments

during their term on the office-holder. The prospecMARDEN V. CITY OF PORTSMOUTH.*

tive salary and emoluments are not property in any An election to and acceptance of a public office, at a fixed sense. They more nearly resemble daily wages un

salary, does not create a contract so that the salary can- earned, and which may never be earned because the not be changed during the term of such election.

incumbent may die, resign, be removed, or superCity councils have the power to change the salary of any seded, and his place filled by another; or the office may officer elected by them, or by the mayor and aldermen.

be abolished. If the election or appointment to and

acceptance of an office constitute a contract whicb city marshal of Portsmouth, October 2, 1874. At cannot be modified or annulled, then it is beyond the that time the city marshal received an annual salary of power of the Legislature to repeal or modify any $800, and his fees as a witness in the police court in all statute creating an office, which shall be effectual durcases where the city was a party or interested. Octoing the incumbency of the person then in it. It is ber 9, 1874, an ordinance of the city fixed the salary at enough to say that this view has not been adopted $700, and required all fees and costs allowed him in by the Legislature, and is not in accordance with the the police court, including his costs as a witness in law. criminal cases and in any other case in which the city It may not be easy to distinguish this case in prinmight be a party or interested, to be paid to the city. ciple from that where a person pays the fee and obThe plaintiff held the office until October 28, 1875, tains a license to carry on a particular business for a when he was re-elected, and continued to hold the specified time. In such cases it is held that there is office until August 4, 1876. The question was reserved nothing in the nature of a contract conferring a vested whether he was entitled to recover at the rate of com- right such as is protected by the Constitution of the pensation fixed when he was elected and accepted, United States, and that such license is revoked and or at the rate fixed by the ordinance of October 9, annulled by the repeal of the statute before the ex1874.

piration of the time limited in the license. State v.

Holmes, 38 N. H. 225; Baxter v. Pennsylvania, 10 How. Frink, for plaintiff.

416; Calder v. Kurby, 5 Gray, 597; and if the office may Foster, for defendant.

be abolished and the right to receive any compensaSTANLEY, J. The city councils were by law vested

tion thus be revoked and annulled, it may be difficult with all the powers of towns-Gen. St., ch. 44, $ 1; and

to explain upon what principle it is that the amount among these powers was that of fixing the compensa

of compensation cannot be changed. Smith v. Mayor, tion of police officers. Gen. St., ch. 44, $ 2; ch. 235, $

37 N. Y. 518; Conner v. Mayor, 5 id. 285, 295; People vi 6. The plaintiff was city marshal, and by virtue of his

Garey, 6 Cow. 642; Warner v. People, 2 Denio, 272, office, a police officer. Gen. St., ch. 43, $7. This be- 292; S. C., 7 Hill, 81; Wilcox v. Rodman, 46 Mo. 322; ing the case, he was only entitled to recover such com

State v. Douglas, 26 Wis. 428; Commissioners v. Jones, pensation as was fixed by the city councils. The ac

18 Minn. 199; Trustees v. Woodward, 4 Wheat. 518, ceptance of the office was under the implied condition

626. that the city councils might change the salary at any

In Rindge v. Lamb, 58 N. H. 278, it was held that a time. There is nothing in the statute which conflicts selectman was not entitled to more compensation than

be agreed with the town to take. The questions, * To appear in 59 New Hampshire Reports.

whether if the town had voted to pay the selectmen a


particular sum they could have rescinded that voted otherwise; and would indemnify the obligee and save and voted a less sum, or whether if they had voted him harmless “ from all loss, damage and expense, by pot to pay them any thing for their services they reason of said or any indebtedness incurred by D." could have recovered any thing (Dill. Mun. Corp., Subsequently a promissory note was made and deliv$$ 168, 169, 170; Farnsworth v. Melrose, 122 Mass. 268; ered to the obligee for value by a firm of which D. was Sikes v. Hatfield, 13 Gray, 347; Sawyer v. Pawners' a member, and for its use, and which was at its incepBank, 6 Allen, 207, 209; Bonden v. Brookline, 8 Vt. 284), tion indorsed by D. in his individual name. Held the were not raised or considered.

note is not within the condition of the bond, and the Oar conclusion is, that the plaintiff is entitled to pay action is not maintainable. Donley v. Liberty Improveat the rate of $800 per year from his election, October ment Bank. Opinion by Martin, J. 2, 1874, to the passage of the ordinance of October 9, 1874, and his witness fees in suits or prosecutions where the city were a party or interested during that NEW HAMPSHIRE SUPREME COURT time, and after that at the rate of $700 per year in full

ABSTRACT. * for salary and witness fees.

Case discharged.


for attorney's services stand on the same ground and OHIO SUPREME COURT COMMISSION

are governed by the same rules as other similar conABSTRACT.

tracts for services. Whether the employment of an JANUARY TERM, 1883. *

attorney to prosecute a petition for divorce was an

entire contract, is a question of fact to be determined CIVIL DAMAGE LAW-ACTION AGAINST LIQUOR SEL- upon evidence. Dodge v. Janvrin. Opinion by StanLERS JOINTLY.-In an action by a wife, under the

ley, J. seventh section of the act of May 1, 1854, to provide CARRIER-EVIDENCE OF NEGLIGENCE-IMPEACHING against the evils resulting from the sale of intoxicating WITNESS.-(1) In an action against a common carrier liquors, as amended April 18, 1870, against two persons of passengers, for damages occasioned by his neglifor injury to her means of support resulting from the gence, his conduct subsequent to the time of the habitual intoxication of her husband, caused by intoxi- plaintiff's injuries may be proved, if it tends to show cating liquors sold and furnished him by the defend

an admission of negligence. (2) If a witness does not ants, and where, from the facts found, it appears that remember, or denies, saying that which is imputed to the defendants each sold intoxicating liquors to the him, evidence may be given that he did say it, prohusband, and that they were in no way connected in vided it is relevant to the matter in issue. Crowley v. business, and that neither of them was in any way in- Page, 7 C. & P. 789; Nute v. Nute, 41 N. H. 60; Santerested in the sales made by the other; but that the derson v. Nashua, 44 id. 492. Marison v. Towle. Opinhusband of the plaintiff, during the time in which the

ion by Smith, J. sales were made, was babitually intoxicated, and that the sales were made by both defendants with knowl

DIVORCE-ALIMONY TO WIFE WHEN SHE IS UNSUCedge of this fact, and the sales thus made contributed

CESSFUL.–Upon any decree of divorce, the court may to keep up said habit. Held, that the defendants are

order the husband to pay the wife such sum of money jointly liable. Rantz v. Barnes. Opinion by Mc

as may be deemed just, even when a divorce is decreed Canley, J.

against her, and she is not entitled to a divorce against

him. Gen. St., chap. 163, $ 12; Sheafe v. Sheafe, 24 N. NEGLIGENCE-WALKING ON RAILROAD TRACK-CON

H. 564; Sheafe v. Laighton, 36 id. 240; 2 Bish. Mar. TRIBUTORY.-Where a locomotive with cars attached

& Div., $ 378. Janvrin v. Janvrin. Opinion by Bingis standing on a railroad track near a railrood station ham, J. or other place where cars are frequently moved forward or backward, a person who goes upon the rail

MORTGAGE — GRANTEE SUBJECT TO DOES NOT ASroad track, seeing the locomotive and cars, and know

SUME.-Where land is conveyed in terms subject to a ing that they would, within a few minutes, be moved mortgage, the grantee assumes no personal liability toward him, and walks upon the track away from the

for its payment by the mere acceptance of the deed.

The insertion of such a clause qualifies the covenants train without keeping watch of its movements, when there was nothing to hinder him from seeing the move

of warranty on the part of the grantor and is notice ments of the train in time to avoid danger, and when

merely to the grantee that he is buying only the he could have gone in the same direction without

equity of redemption. Trotter v. Hughes, 12 N. Y. walking on the track, is guilty of such negligence as

74; Belmont v. Coman, 22 id. 438; Binsse v. Paige, 1

Keyes, 87; Stevenson ·v. Black, Saxton (N. J.) 338; will prefent his recovery for an injury caused by the carelessness or unskillfulness of the employees of the

Klapworth v. Dressler, 2 Beas. Ch. (N. J.) 62; Post v.

Bank, 28 Conn. 420; Johnson v. Monell, 13 Iowa, 300; railroad, not amounting to willfulness on their part. A person so walking upon a railroad track is not free

Kearney v. Tanner, 17 Serg. & R. 94; Fiske v. Tolman, from negligence which will prevent his recovery for an

124 Mass. 224; Woodbury v. Swan, 58 N. H. 380; 1

Jones Mort., $S735-9. The law has been held otherinjury so caused, if he omits to keep watch of the

wise in England. Waring v. Ward, 7 Ves. 333. Lawmovements of the train, relying upon a rule or custom of the employees of the railroad, to give a sigual for

rence v. Towle. Opinion by Smith, J. the moving of the train. The expectation that such SEDUCTION-DAMAGES—MENTAL SUFFERING.-In an signal would be given does not relieve a person in such

action by a father for the seduction of his daughter, situation from constant watchfulness for his safety. the plaintiff under a count setting up generally loss of Baltimore & Ohio Railroad Co. v. Depew. Opinion by the daughter's service, may recover compensation for McCauley, J.

his mental suffering caused by defendant's act. Lunt SURETYSHIP-FOR ONE PARTNER IS NOT FOR FIRM.

v. Phelbrick. Opinion by Doe, C. J. D. and others executed a penal bond conditioned that Town--LIABLE FOR OBSTRUCTION HIGHWAY they would pay to the obligee any sum or sums, which CREATED BY RAILROAD COMPANY.-If a railroad comD. may owe to or thereafter become indebted to the pany, acting under their charter, create an obstrucobligee, upon bond, bill, note, draft, check, account or tion in a highway by which a traveler sustains dam*To appear in 40 Ohio State Reports.

*To appear in 59 New Hampshire Reports.



age, the towu is answerable as if the same acts had been of jurisdiction. It is true that a matter in controdone by an individual. Willey v. Portsmouth, 35 N. versy, or a peuding civil suit, may be finally submitH. 313; Elliot v. Concord, 27 id. 204; State v. Dover, ted to arbitration or to the decision of a single judge, 46 id. 452; Bacon v. Boston, 3 Cush. 179; Eyler v. Co. or by omitting to exercise their rights, the parties may Com'rs., 49 Md. 257; Watson v. Tripp, 11 R. I. 98. waive them, as they choose, but they cannot by an Sides v. Portsmouth. Opinion by Bingham, J.

agreement iu advance, when no matter of dispute or controversy has yet arisen, forfeit their rights to a

proper adjudication in the appropriate tribunal estabNEW JERSEY SUPREME COURT ABSTRACT. lished by law, when a proper case may be presented. JUNE TERM, 1883. *

In the case of Insurance Co. v. Morse, 20 Wall. 445, this

point was very fully discussed, and it was there held, CONTRACT-BUILDING CONTRACT-ARCHITECT'S CER

that as the Constitution of the United States secures TIFICATE--WAIVER.--Suit will not lie on a building con

to citizens of another State than that in which suit is tract for money payable upon an architect's certificate brought, an absolute right to remove their cases into without the production of such certificate or evidence Federal courts, upon compliance with the terms of the that its production has been waived. Waiver may be judiciary act, neither a statute or the State nor an express or proved by acts and conduct of the party eu

agreement of the litigant parties made in advance titled to demand it. Less evidence of waiver is re

under it, justified a denial of the constitutional right. quisite when it clearly appears that the contract has

In support of this view we may refer also to the cases been fully performed. Add. on Cont. 666; Scott v.

of Nate v. Hamilton Ins. Co., 6 Gray, 174; Hobbs v. Liverpool Corp., 25 L. J. Ch. 236; Mayor, etc., v. Ack

Manhattan Ins. Co., 56 Me. 421; Scott v. Avery, 5 H. ers, 16 L. J. Ex. 6; Moffatt v. Dickson, 13 C. B. 543;

of L. Cas. 811, and Story Eq. Jur., $ 670. It is true Dobson v. Hudson, 1 C. B. (N. S.) 652. Byrne v. Sis

also that parties may impose as condition precedent ters of Charity of St. Elizabeth. Opinion by Knapp, J.

to application to the courts, that they sball first have DEATH-PRESUMPTION OF, FROM ABSENCE--IDENTITY settled the amount to be received by an agreed mode OF ONE CLAIMED TO BE ALIVE.-A person who absents of liquidation or adjustment, and this in many cases himself from this State for seven successive years is provides a much more appropriate tribunal for the presumed to be dead, and the party asserting that he purpose than a jury. Monongahela Navigation Co. v. is living must prove it. After the presumption of Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey, death arises, the burthen of proof is on the party de- 306; Mentz v. Amenia Fire Ins. Co., 79 Penn. St. 480. nying the death to show that the person is alive and to The principle involved in these cases does not close the overcome the presumption by proof. There should access of the parties to the courts of law, as the award be something inore than similarity of name to over- of the arbiter is only enforceable there. Appeal of come the presumption of death raised by the statute. Rea. Opinion by Clark, J. The identity of the person should be proved. Hoyt v. [Decided Nov. 12, 1883.] Neubold. Opinion by Parker, J.


MINERAL-DEED.-A deed excepted from the grant WATER CHARGES BY, FORBIDDEN.-The board of pub-"all timber suitable for sawing, also all minerals." lic works cannot, under the charter of Jersey city, Held, not to except petroleum. It is true that pecharge certain water consumers with expensive troleum is a mineral. But salt and other waters immeters put in by them to regulate the supply and rent preguated or combined with mineral substances are to be paid, without the consent of the persons charged; minerals ; so are rocks, clays and sands; any thing nor impose the penalty of cutting off the water for due from mines and quarries; in fine, all inorganic non-payment of the price of the meter. The proviso substances are classed under the general name of in section 87 of the charter that their rules, regulations minerals. Bouv. L. Dic.; Wor. Dio.; Dan's Geology; and by-laws shall not be inconsistent with the Con- Grey's Botany. If the reservation embraces all these stitution and laws of the State of New Jersey, or of things, it is as extensive as the grant, and therefore the United States, forbids the making of unwarranted

void. If then any thing at all is to be retained for the discriminations in particular cases, and arbitrary vendor, by some means the meaning of the word charges, with the penalty of forfeiture of the right to

“minerals" must be limited. The rule by which this use the water. Dayton v. Quigley, 2 Stew. Eq. 77; may be done is well stated by Gibson, C. J., in the Parker v. City of Boston, 1 Allen, 361; Young v. City

case of the Schuylkill Navigation Co. v. Moore, 2 of Boston, 104 Mass. 95; Kip v. Paterson, 2 Dutch.

Whart. 477, as follows: “The best construction is that 298; 1 Dill. on Mun. Corp., $$ 319, 320, 321, 322. State which is made by viewing the subject of the contract of New Jersey v. Mayor of New Jersey. Opinion by

as the mass of mankind would view it; for,"continues Scudder, J.

the learned chief justice, “it may be safely assumed NEGLIGENCE - FIRE SET BY

that such was the aspect in which the parties themRESTER.-If a railroad company use upon its engine a selves viewed it.” So Kennedy, J., adopting this spark-arrester of an approved pattern in general use, same rule in the case of Gibson v. Tyson, 5 Watts, 34, and which upon a careful inspection by a skilled me- when construing an exception in a deed “of all minchanio, appeared to be in good condition, such com- eral or magnesia of any kind," says that by the bulk pany shall not be responsible for damage done by fire of mankind nothing is considered as a mineral except occasioned by sparks escaping through such spark-ar- such things as be of a metallic nature, such as gold, rester. Hoff v. West Jersey Railroad Co. Opinion by silver, copper, lead, etc., and that in looking at the Deasley, C. J.

deed before him, under the general understanding, he

would have hesitated about classing chromate of iron PENNSYLVANIA SUPREME COURT as a mineral, except that from the parol testimony it

appeared the parties themselves regarded it as a meABSTRACT.

tallio ore of some kind. Oil is regarded even by

science and law as a mineral only because of its inorCONTRACT-TO OUST COURT OF JURISDICTION OF A

ganic character, or as in Stoughton's Appeal, 7 Norr. CONTROVERSY INVALID.-Parties cannot by private 198, because of its forming part of of the freehold from agreement in advance of a controversy oust the court which it is taken. Certainly in popular estimation,

*To appear in 16 Vroom's (45 N. J. Law) Reports. petroleum is not regarded as a mineral substance any


« 이전계속 »