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ALVEY, J. The plaintiff in this case sues as indor mentioned in the note with that which is uncertain, see of what is alleged to be a negotiable promissory and treating the note as an entire contract, it is foran note made by the defendant, and the question is unascertained sum, and therefore uncertain on its whether the instrument sued on is, in legal contem- face as to the amount promised to be paid. This as we plation, a negotiable instrument or not. The question have seen, is not allowable in notes intended to be newas raised in the court below by a demurrer to the gotiable. declaration; and the declaration avers that the de- Notes of similar import to that declared on in this fendant, on the 29th of September, 1880, by his promis- case have been under consideration in sereral of the sory note, payable two months after date, promised to State courts of the country; but it would appear that pay David C. Avery, or order, $93; payable at the the decided preponderance of authority is against Easton National Bank of Maryland; and if not paid holding such notes to be negotiable. when due, promised and agreed to pay all costs and In Woods v. North, 84 Penn. St. 407, the note soed charges for collecting the same, with interest; and on contained a promise to pay to the order of the that the said Avery indorsed the said note to the payee a certain sum of money, “and five per cent colplaintiff, and the same was duly presented when due lection fee, if not paid when due;" and in that case, it for payment, and was dishonored, etc. The court was held that the note was not negotiable, and that below ruled the demurrer good, and entered judg- the indorser thereon was not liable. That was greatly ment for the defendant, from which the plaintiff ap. more certain as to the sum to be paid than the promise pealed.

in this case; for there the rate of percentage for colA promissory note may, in brief, be defined to be a lection was fixed. The same doctrine is, in express written promise, uot under seal, to pay a certain sum terms, affirmed, in the recent case of Johnson v. Speer, of money unconditionally. At common law such note 92 Penn. St. 227. was not transferable, and by the decision of the courts In the case of First National Bank of Nere Windsor it was not allowed to acquire, by custom among mer- v. Bynum, 84 N. C. 24, the same principle was mainchants, the quality of negotiability. Buller v. Cripps, tained, and the case of Woods v. North, 84 Penn. St. 6 Mod. 29; Clerk v. Martin, 2 Ld. Raym. 757. But by 407, applied and affirmed. And in the case of the First the Stat. 3 and 4 Anne, ch. 9, it was provided “that all National Bank of Trenton v. Gaz, 60 Mo. 33, where the notes in writing that shall be made and signed by any note, in addition to a sum certain promised to be paid, person, etc., whereby such person, etc., shall promise contained a stipulation to pay ten per cent as attur to pay to any other person, his, her, or their order, or ney's fee, if the note was not paid at maturity and was unto bearer, any sum of money mentioned in such placed in the hands of an attorney for collection, it note, shall be taken and construed to be, by virtue was held that such note was not a negotiable instruthereof, due and payable to any such person, etc., to ment. See also Moryan v. Edwards, 53 Wis. 599, and whom the same is made payable; and also every such Mahoney v. Fitzpatrick, 133 Mass. 151. We might refer pote payable to any person, etc., his, her, or their to several other cases holding the same proposition, order, shall be assignable or indorsable over, in the but we deem it uunecessary. same manner as inland bills of exchange are or may be, In some few States different views have prevailed, according to the custom of merchants.” The statute and notes of similar import and character to that defurther provides that actions may be maintained on clared on in this case have been held to be negotiable, such notes by the payees, or the indorsees thereof, "in notwithstanding the stipulation to pay all costs and like manner as in cases of inland bills of exchange." charges of collection; as in the cases of Stoneman v. By the statute therefore such promissory notes are Pyle, 35 Ind. 103; Wyant v. Pottorf, 87 id. 512; Sperry T. made commercial instruments, and when they are Horr, 32 Iowa, 184, and Seaton v. Scoville, 18 Kans. 433. made payable to order or to bearer, they are indor- We cannot however adopt the reasoning of those sable and transferable as commercial paper, and are placed upon the same footing of inland bills of ex- In two or three States the stipulation in the note for change. Bowie v. Duvall, 1 G. & J. 175.

the payment of costs and expenses of collection, on It is true, no particular form of words is essential to default of payment, has been treated as a stipulated constitute a valid promissory note or bill of exchange. penalty, and as such has been declared void ; as in the But there are certain essential elements that every cases of Bullock v. Taylor, 39 Mich. 137, and Wither. valid promissory note must contain, and the principal spoon v. Musselman, 14 Bush, 214. But to declare among these is a promise to pay a certain sum of such stipulation void, in order to maintain the negotimoney unconditionally. If the note be wanting in able character of the note, is certainly a strong thing this respect, while it may be a valid specific agreement, for the court to do, unless it clearly contravened some and assignable under the provisions of the Code, it established principle of law. Parties have the right to cannot be treated as a valid, negotiable promissory note make their contracts in what form they please, proto be passed by indorsement. It is of great import-vided they consist with the law of the land; and it is ance to the use and office of such commercial negoti- the duty of the courts so to construe them, if possible, able instruments as bills and notes, that they should as to maintain them in their integrity and entirety. be kept free of all conditions and singular and uu- While the instrument under consideration may not be usual stipulations, such as we find on the face of the a valid negotiable promissory note, it does not, by any note in question, whereby their negotiability might be means, follow that it is not a valid contract of another seriously clogged or impeded. It would appear to be description. the requirement of the statute, as well as of the long In the case of Smith v. Nightingule, 2 Stark. N. P. established custom of merchants, that the note to be 375, by the instrument declared on the party promised negotiable, should be certain and unconditional, and to pay a sum certain, “and also all other sums that not be trammelled by conditions or contingencies of should be found to be due;" and it was held that the any kind. In the note declared on in this case, the instrument could not be declared on as a promissory stipulation for the payment of all costs and charges note, even for the sum certain; and Lord Ellenboincurred in the collection of the note, introduces an rough said: “ The instrument is too indefinite to be element of uncertainty quite inconsistent with the de- considered as a promissory note, for it contains a gree of certainty required as to the sum to be paid. promise to pay interest for a sum not specified, and The costs and charges of collection could never, with not otherwise ascertained than by reference to the deaccuracy, be known until the collection had been made fendant's books; and since the whole constitutes one complete; and hence by coupling the certain sum entire promise, it cannot be divided into parts." Byles


on Bills, 70. And to the same effect is the case of Ayrez y. Fearnsides, 4 M. & W. 168. Here all the terms of the instrument have been treated as an entire promise, and so declared on by the plaintiff, suing as indorses of the note.

The judgment of the court below must be affirmed; bat as the plaintiff may desire to amend, and to declare on the special agreement as assignee thereof, we shall remand the cause to that end.

Judgment affirmed.


JANUARY 7, 1884.

ATTORNEY-AGREEMENT WITH, AS TO COMPENSATION-CAPTURE BY CRUISER ALABAMA. — An agreement made a fortnight before the treaty of Washington of 1871, and by which the owners of a ship and cargo taken by the armed rebel cruiser, the Florida, employed a person, whether an attorney at law or not, to use his best efforts to collect their "claim arising out of the capture," and authorized bim to employ such attorneys as he might think fit to prosecute it, and promised to pay him "a compensation equal to twenty-five per cent of whatever sum shall be collected on the said claim," applies to a som awarded to them by the court of commissioners of Alabama claims, established by the act of June 23, 1874, chap. 459; and is not affected by section 18 of that act, providing that that court should allow, out of the amount awarded ou any claim, reasonable compensation to the counsellor and attorney for the claimant, and issue a warrant therefor, and that all other liens or assignments, either absolute or conditional, for past or future serrices about any claim, made or to be made before judge ment in that court, should be void. Comegys v, Vasse, 1 Pet. 193; Phelps v. McDonald, 99 U. S. 298; Leonard v. Nye, 125 Mass. 455. Bachman v. Lawson. Opinion by Gray, J.

“ the

RIPARIAN RIGHTS-CONVEYANCE OF STREET ALONG WATER SIDE TO UNITED STATES.- A conveyance of a street “for the use of the United States forever,” held to vest an absolute unconditional fee simple in the United States, and where the street ran along the water side, such a conveyance would vest in the United States the rights a riparian proprietor. A riparian proprietor, in the language of Miller, J., in Yates v. Milwaukee, 10 Wall. 497-504, is one "whose land is bounded by a navigable stream; ” and among the rights he is entitled to as such, are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the publio, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the public, whatever those may be." Webber v. Harbor Commissioners, 18 Wall. 57. In Massachusetts, where it is held that by virtue of the ordinance of 1647, if the lands be described as bounded by the sea, the grantee will hold the lands to low-water mark, 80 that he does not hold

more than one hundred rods below high-water mark. Storer v. Freeman, 6 Mass. 435; Commonwealth v. Charlestown, 1 Pick. 180; yet it is also held, that where an ancient location or grant by the proprietors of a township bounded the land granted by a way, which way adjoined the seashore, the ordinance did not pass the flats on the other side of the way to the grantee. Codman v. Winslow, 10 Mass. 146. And in Maine it was decided that a grantee, bounded by high-water mark, is not a riparian proprietor nor within the ordinance. Lapish v. Bangor, 8 Greenl. 85. In New Jersey it is spoken of as right of an owner of lands upon tide waters to maintain his adjacency to it and to profit by this advan tage.” Stevenson v. Paterson, etc., R. Co., 34 N. J. Law, 532-556, and as a right "in the riparian owner to preserve and improve the connection of his property with the navigable water." Keyport case, 3 C. E. Green, 516. The riparian right " is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his Own terms." Rowan's Exrs. v. Portland, 8 B. Monr. 232. It is “a form of enjoyment of the land and of the river in connection with the land." Lyon v. Fishmonger's Co., L. R., 1 App. Cas. 662, 672. “It seems to us clear," said Pollock, C. B., in Stockport Water Works Co. v. Potter, 3 Hurl & Colt. 300-326, that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away a portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights." No inference in sucb a case arises against the riparian right of the grantee because the land has been granted for a street. On the contrary, as was said in Barney v. Keokuk, 94 U. S. 324-340, “a street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river and the usual accomodations of navigation in such a connection;" that is as appears by the decision in that case, to be used by the public for such purposes, as well as a highway, in contradistinction to the exclusive right of one claiming riparian rights as owuer of the soil. Godfrey v. City of Alton, 12 Ill. 29. “If the city," said this court in New Orleans v. United States, 10 Pet. 663-717,

can claim the original dedication to the river it has all the rights and privileges of a riparian proprietor." And it is immaterial that the ground laid out as a street was not in a condition to be used as a street, or that much labor was required to place it in that situation, or that in fact it had not been used as such for a long period of time. Barclay v. Howell's Lessee, 6

FEDERAL QUESTION-WHETHER ACTS OF CORPORATION ARE ULTRA VIRES, NOT.-A suit to obtain an injunction against a corporation to restrain the performance of an act on the ground that it is not within its charter powers brought in a State court presents no Federal question that can be reviewed in the Federal Supreme Court. "Certainly,” as was said in Brown v. Colorado, 106 U. S. 97, “if the judgment of the courts of the States are to be reviewed here on such," tbat is to say, Federal, “questions, it should only be when it appears unmistakably that the court either knew or ought to have known, that such a question was involved in the decision to be made." Susquehanna Boom Co. v. West Branch Boom Co. Opinion by Waite, C. J.

REMOVAL OF CAUSE-SUIT TO SET ASIDE WILLRESIDENCE.- A suit to set aside a will brought by a daughter, where the will bequeathed to executors a specified sum in trust, cannot be removed to the Federal court where the daughter and executors are citizens of the same State as plaintiff, and are defendants in the suit though the beneficiaries under the will are citizens of another State. That a suit cannot be removed under the third sub-division of section 639, of the act of 1875, unless all the parties on one side of the controversy are citizens of different States from those on the other was settled in the cases of Sewing Machine Companies, 18 Wall. 587, and Vannevar v. Bryant, 21 id. 43, and the executors were necessary parties. American Bible Societyv. Price. Opinion by Waite, C. J.

Pet. 504,505; Boston v. Lecraw, 17 How. 426. “A man Hun, 157; Becker v. Western Union Tel. Co., 11 Neb. cannot lose the title to his lands," it is said in this 87; S. C., 23 Alb. Law J. 277; Sweatland F. Ill. & M. case, by leaving them in their natural state without Tel. Co., 27 Iowa, 455; White v. Western Union Tel improvement, or forfeit them by non-user." P. 436. Co., 14 Fed. Rep. 710. U.S. Cir. Ct., E. D. Arkansas, McMurry v. Baltimore, 54 Md. 103. Potomac Steamboat Oct., 1883. Jones v. Western Union Telegraph Co. Co. v. Upper Potomac Steamboat Co. Opinion by Opinion by Caldwell, J. Matthews, J.




SEPTEMBER, 1883. LIGENCE NOT COGNIZABLE IN.-A State statute which gives to the administrator of oue who has been killed CORPORATION-MAY RECOVER FROM ONE PROCURING by an accident a right of action for damages for the TRANSFER OF SHARES ON FORGED CERTIFICATE benefit of " husband, wife, parent, and child” of the BROKER.-A. Owued five shares of stock in the plaintdeceased, against the person or corporation responsi- iff railroad company. Defendants purchased the shares ble for the accident, thereby creates a right which, from a broker who was in possession of the certificate, though the killing be a marine tort, is not maritime, and a forged signature to a power of attorney pur. and a libel in rem brought by the administrator against porting to authorize their transfer. On the faith of a ship for the damages cannot be maintained. A stat- this power of attorney plaintiff transferred the shares ute which gives a right of action in personam does not to defendants and issued to them a certificate. Subsethereby give a right of action in rem in a similar case quently plaintiff transferred the shares to a purchaser in admiralty. The States of this Union cannot create from defendants at their request, and issued to the maritime rights, or rights of action in admiralty; vor purchaser a new certificate. Plaintiff was afterward can they endow with a maritime right one who is not com pelled to procure for A. five shares of stock and to entitled to that right by the law maritime. U. S. Dist. pay her accrued dividends. Held, that plaintiff was Ct., E. D. Virginia, January, 1884. The Manhassett. entitled to recover of defendant the value of the stock Opinion by Hughes, J.

and dividends. A. never parted with her property in

the shares, and therefore the plaintiff was obliged to PARTNERSHIP--USE OF NAME OF ONE NOT PARTNER.

procure shares for her and also pay her the dividends - A partnership which is suffered by any one to use

Pratt v. Taunton Copper Co., 123 Mass. 110. It is sethis name as a part of the firm style and title, though it

tled that the corporation has no remedy against the may acquire by such license an exclusive right to the

person who purchased of the defendants, because as to use of the name so long as the partnership continues

him the corporation is estopped to deny its certificate intact, cannot, upon its dissolution, confer the same

issued to the defendants and transferred to the purprivilege upon its successor. Acquiescence by any chaser. Machinists' National Bank v. Field, 126 Mass. person in the wrongful use of his name will not estop

345. It is familiar law that in a sale of chattels a warhim from asserting his rights in equity, unless he has

ranty of title is implied unless the circumstances are notice during such acquiescence of the facts rendering

such as to give rise to a contrary presumption. Shatthe use of his name wrongful. U. S. Cir. Ct., Indiana,

tuck v. Green, 104 Mass. 42. The possession and offer Dec. 29, 1883. Horton Manufacturing Co. v. Horton

to sell a chattel is held equivalent to an affirmation Manufacturing Co. Opinion by Woods, J.

that the seller has title to it. This is founded upon REMOVAL OF CAUSE-SUIT INSTITUTED BY STATE.- the reason that men vaturally understand that a seller A suit instituted by a State in one of its own courts

who offers a chattel for sale owns it. The same rule against a citizen of another State is not removable on

has been extended to the case of a sale of a promissory the ground of a diversity of citizenship of the parties.

note. The seller impliedly warrants that the previous Such a suit is not a denial of the equal protection of

signatures are genuine. Cabot Bank v. Merten, 4 the laws, within the meaning of the Fourteenth

Gray, 156; Merriam v. Walcott, 3 Allen, 258. So it has Amendment or Revised Statute, section 641, and re

been held that if one, honestly believing himself to be moval on that ground. U. S. Cir. Ct., M.D. Alabama,

authorized, acts as agent for another and procures July, 1883. State of Alabama v. Wolffe. Opinion by

money or goods upon the credit of his supposed prinBruce, J.

cipal, and it turns out that he is not authorized, he is

liable for the value of the money or goods. Jefts v. TELEGRAPH-NOTICE LIMITING LIABILITY AS TO York, 10 Cush. 392. In numerous other cases the MESSAGE.-The printed conditions on the half-rate remedy is said to be an action ou the case for falsely message blanks of the Western Union Telegraph Com- assuming to be an agent. Bartlett v. Tucker, 104 pany are reasonable and valid, to the extent of pro- Mass 336; May v. Western Union Tel. Co., 112 id. tecting the company from damages for any error or 90. See also Simm v. Anglo American Tube Co., L. R., mistake occurring in the transmission of a half-rate 5 Q. B. D. 188; Hamb.eton v. Central Ohio R. CO., 4 message, unless it is shown affirmatively that such Md. 551 ; Brown v. Howard Ins. Co., 42 id. 384. Boston error or mistake was the result of gross negligence or & Albany Railroad Co. v. Richardson. Opinion by fraud; and mere proof of the fact that there is a mis- | Morton, C. J. take of a word or a figure in the message as delivered is not in itself sufficient evidence of negligence or

DEFINITION—" HEIRS AT LAW"-TRUST.-A deed in fraud to render the company liable beyond the amount

trust of personal property directed the trustees to pay stipulated for in the contract of the parties. Western

over the income during life to beneficiaries named and Union Tel. Co. v Neill, 57 Tex. 283; $. C., 13 Cent.

upon their death to divide between H. and others. Law J. 475; Aikin v. Western Union Tel. Co., 5 S. C.

The deed directed that the share of H., if he was then 358; Pinckney v. Western Union Tel. Co., Sup. Ct. S.

deceased, go “to his heirs at law.” The trustees were C. MS. Op. Nov. Term, 1882; Ellis v. Amer. Tel. Co.,

authorized to invest the fund in real estate as well as 13 Allen, 226; Grinnell v. Western Union Tel. Co., 113

personal property. Held, that the words "heirs at Mass. 299; Schwartz v. Atlantic & Pacifio Tel. Co., 18

law” were to bo taken in their literal sense. It is

true that Sweet v. Dutton, 109 Mass. 589, can only be *Appearing in 18 Federal Reporter.

reconciled with this construction by laying hold of



minute differences which might lead to the conclusion recover the price of liquors sold to an agent of the that in that case the settlor meant simply that if she town for the sale of spirituous liquor, the record refailed to make a will the law should take its course. quired by law to be made of the rules and regulations Viewed as authority however, Sweet v. Dutton, it prescribed for the observance of such agent is compeshould be noticed, relied largely on Mace v. Cushman, tent evidence upon the question of the authority of 43 Me. 250, which had been overruled in the State the agent to purchase liquors on the credit of the where it was decided. Lord v. Bourne, 63 Me. 368, town; and a person selling liquor to such agent is stands almost, if not entirely, alone (see Richardson v. charged with notice of any limitation of the agent's Martin, 55 N. H. 45, 47), and is hardly to be reconciled authority shown by such record. Story on Agency, with the generally accepted rules upon the subject. 252-260; 1 Wait Actions and Defenses, 233; Thacher v. See also Clark v. Cord is, 4 Allen, 466. Merrill v. Pres. Pray, 113 Mass. 291; Thorndike v. Godfrey, 3 Greenl. ton. Opinion by Holmes, J.

429; Smith v. Kidd, 68 N. Y. 130; Busby v. Ins. Co., MASTER AND SERVANT-IN EXPERIENCED WORKMAN

40 Md. 572. Sprague v. Cornish. Opinion by Clark, J. USING CIRCULAR SAW-DUTY OF MASTER.--Where a

BANKRUPTCY-CONFLICT OF LAW.-The validity of a master employed an inexperienced workman to use a

discharge under the United States Bankrupt Act of circular saw, and the workman was injured, a verdict 1867 (U. S. Rev. Stat., $ 5120). cannot be contested in against the master for the injury was upheld on the

a State court. Corey v. Ripley, 57 Me. 69; Oceau Nat. ground that there was no guard upon the machine, Bank v. Olcott, 46 N. Y. 12; Way v. Howe, 108 Mass. and that it was the master's duty to notify the servant 502; Hunt v. Taylor, id. 508; Burpee v. Sparhawk, id. of the danger of using such machine, and his direction 111; Smith v. Ramsey, 27 Ohio, 339. Marshall v. to a foreman to give the required notice not complied Sumner. Opinion by Foster, J. with was not enough. The duty resting upon the master is not merely one of reasonable care and dili LIBEL-NEWSPAPER LIABLE FOR, THOUGH

PUBgence to give a proper notice; but that he is responsi- LISHED AS NEWS.—The business of publishing a newsble in case the servant suffers through a want of re- paper, is not of itself a lawful occasion for making in ceiving a proper notice of the risks to which he is ex- such paper, a false charge of crime. Professional pubposed. It is more reasonable to hold, that where the lishers of news are not exempt, as a privileged class, from danger is known to the master and unknown to the the consequences of damage done by their false news. servant, the master should be held to see to it that the Their communications are not privileged merely bekervant, when put upon work which exposes him to cause made in a public journal. They have the same the danger, should be informed of it. Where the ser

right to give information that others have, and no Fant is as well acquainted as the master with the dan

Smart v. Blanchard, 42 N. H. 137, 151; Palmer gerous nature of the machinery or instrument used,

v. Concord, 48 id. 211, 216; Sheckell v. Jackson, 10 or of the service in which he is engaged, he cannot re

Cush. 25. Barnes v. Campbell. Opinion by Smith, J. cover. But where the master employs a servant in the

PROBATE LAW-PROBATE OF WILL NOT IMPEACHAuse of machinery which he knows, but the servant

COLLATERALLY.-The validity of a will, duly does not know, to be attended with peculiar danger, proved and allowed in the Probate Court, cannot by a be must be held responsible for an injury which oc

collateral proceeding be attacked on the ground that eurs in consequence of his failure to see to it that a

its execution was fraudulently proved. Gordon v. proper notice is given. Coombs v. New Bedford Gordon, 55 N. H. 399: Lyme v. Allen, 51 id. 242; RailCordage Co., 102 Mass. 583; Sullivan v. India Manufac

road v. Railroad, 57 id. 200; Poplin v. Hawke, 8 id. turing Co., 113 id. 399. Wheeler v. Wason Manufactur- 124. Spofford v. Smith. Opinion by Bingham, J. ing Co. Opinion by C. Allen, J. NEGLIGENCE-INJURY TO TRAVELLER AT RAILROAD


COVERABLE. -An action cannot be maintained to re

cover compensation for labor and services, not of neFIVE YEARS OLD.-In an action for injury from being ran into by a train upon defendant's railway, it ap- cessity or mercy, performed on Saturday, Sunday and peared that the plaintiff was a boy less than five years Monday, under an entire contract made in contemplaof age, and was accompanied by his brother, who was

tion of part performance on Sunday. Williams v. nearly nine years of age. The place where the injury Hastings. Opinion by Clark, J. occurred was not a public highway, but was a way open for the public to use; and the plaintiff was lawfully there. Held, that it was for the jury to say NEW JERSEY COURT OF ERRORS AND SU. whether the parents of plaintiff were negligent in al

PREME COURT. lowing him to be there attended as he was (Mulligan

JUNE TERM, 1883. * 5. Curtis, 100 Mass. 512; Ihl v. Forty-Second St. R. Co., 47 N. Y. 317), whether the brother in whose case

CORPORATION-LIABILITY OF SUBSCRIBER FOR STOCK plaintiff was exercised due care, and whether plaintiff

OF RAILROAD.-Proof that certain of the promoters of who was walking backward at the time, did so or ex

a railroad scheme guaranteed that the route would pass ercised the care ordinarily shown by children of their

near to a certain tract of land, accompanied with proof ages. Gaynor v. Old Colony R. Co., 100 Mass. 208; of a deviation from such line, will not be sufficient to Smith v. Westfield National Bank, 99 id. 605; Mayo v. Boston & Maine R. Co., 104 id. 137; Lane v. Atlantic discharge a subscriber who had subscribed in reliance

on such statement, there being no evidence tending to Works, 111 id. 136; Treat v. Boston & Lowell R. Co., 131 id. 371; Fleck v. Union R. Co., 134 id. 90. O'Conner phia, Marltoa & Medford Railroad Co. Opinion by

show any fraudulent intent. Braddock v. Philadel7. Boston & Lowell Railroad Co. Opinion by W. Al.. Beasley, C. J. (Errors.) len, J


An outgoing board of chosen freeholders cannot fill an ABSTRACT. *

office that will not become vacant during the term of

their own official life. Where it appears that an intruAGENCY

NOTICE OF LIMIT OF AUTHORITY OF sion has been consciously wrongful, a part of the judge TOWN LIQUOR AGENT.-In an action against a town to ment will be a fine or a punishment. State of New "To appear in 59 New Hampshire Reports.

*To appear in 16 Vroom's (45 N. J. Law) Reports.



Jersey v. Mehan. Opinion by Beasley, C. J. (Su- mentalities furnished for his use gives notice thereof preme.)

to his employer, who thereupon promises that they SURETYSHIP-BANK OFFICER'S BOND-DISCHARGE

shall be remedied, the servant may recover for an inCOVENANT-JOINT OBLIGORS.-(1) A surety upon the

jury caused thereby, at least where the master rebond of a cashier of a bank is not discharged by the

quested him to continue in the service, and the injury mere fact that the cashier was, at the time the bond

occurred within the time at which the defects were was given, a defaulter. Nor will the neglect of the

promised to be remedied, and where the instrumenbank to ascertain that fact discharge him. The books

tality, although defective, was not so imminently and of the bank, and the statements of the bank sent to

immediately dangerous that a man of ordinary pru. the comptroller of the currency under the National

dence would have refused longer to use it. Uuder such Banking Law, are not admissible in evidence to prove

circumstances his subsequent use of the defective inthe negligence of the bank officers, nor as tending to

strument would not necessarily, or as a matter of las, establish the fact of knowledge on the part of the

make the servant guilty of contributory negligence, bank of the existence of the defalcation. Tapley v.

but it would be a question for the jury, whether in Martin, 116 Mass. 275; Wayne v. Commonwealth Na

continuing its use after he knew of the defect, he was tional Bank, 52 Penn. St. 343; Brandt on Suretyship, $

in the exercise of ordinary care. Clarke v. Holmes, i 367. (2) A covenant given to one of sereral obligors,

Hurl. & N. 948; Hough v. Railway Co., 100 U. 8. 213; which provides that if suit should be brought against

Patterson v. Railroad Co., 76 Peun. St. 389; Laning F.

Railroad Co., 49 N. Y. 531; Snow v. Railroad Co., 8 him the instrument should become a good bar thereto, and operate as an absolute release and acquittance of

Alleu, 441; Holmes v. Worthington, 2 Foster & F. 583.

See also Ford v. Railroad Co., 110 Mass. 240; Green. the bond as to him, and which declared that it was not intended thereby to release or discharge the other

leaf v. Railroad Co., 29 Iowa, 14; Kroy v. Railroad Co.. sureties, is a covenant not to sue, and not a release.

32 id. 357. Greene v. Minneapolis & St. Louis Railiday Dean v. Newball, 8 T. R. 168; Thompson v. Lack, 3 M.,

Co. Opinion by Mitchell, J. G. & S. 540; Crane v. Alling, 3 Green, 423. Bowen v.

[Decided Nov. 24, 1883.] Mount Holly National Bank. Opinion by Runyon, C. (Errors.)



FLINTS NOT MINERALS. — The appellant let to the reEVIDENCE--PAROL EXPLAINING INTENTION OF SEALED spondent a farm in a chalk district, reserving by the INSTRUMENT

ACTION FOR DECEIT. agreement “all mines and minerals." In the course -(1) The general principle is that parol evidence is ad- of husbandry the tenant turned up flint stones by the missible to show that notwithstanding the delivery of plough, which he collected off the land and sold. Erian instrument not under seal, the intention of the dence was given that it was necessary that the stones parties was that it should not become operative as a should be removed from the land in the course of good contract except upon the happening of a future con- husbaudry, and the tenant alleged a local custom that tingent event. Pym v. Campbell, 6 El. & Bl. 370, and

they might be sold by the tenants. The landlord apWallis v. Littell, 11 C. B. (N. S.) 369; Westeman v. plied for an injunction to restrain him. Held (affirmKrumweide, 15 N. W. Rep. 255. (2) In an action for ing the judgment of the court below), that assuming damages where the defendant had falsely assumed au

the custom to be proved, it was not unreasonable, and thority to sell and convey property,held that the meas- that the reservation in the lease was not sufficient to ure of damages was the diffe ence in value between exclude it. House of Lords, June 15, 1883. Tucker . what plaintiffs would have got if the assumed au- Linger. Opinions by Lords O'Heagan, Blackburn, and thority had existed, and what they did get. If the as- Fitzgerald. (49 L. T. Rep. [N. 8.) 373.) sumed authority had in fact existed, plaintiffs would

SPECIFIC PERFORMANCE — MISREPRESENTATION DEhave got the right to acquire title upon payment of the

FEATING-LEASE.—The plaintiffs advertised for sale price, whereas in the absence of the authority, they

by auction a hotel, stated in the particulars to be got no right to the property at all. Their loss was the

held by a "most desirable tenant." The defendants difference between the value of the price which they

sent their secretary down to inspect the property and agreed to pay, and the market value of the property at the time when the agreement was made. The rule en

report thereon. The secretary reported very unfatitling plaintiffs to the loss of bargain, when authority

vorably, stating that the tenant could scarcely pay the

rent (4001), rates, and taxes. The defendants however to sell has been falsely assumed, is supported by Sped

relying on the statements in the particulars, authording v. Nevell, L. 4 C. P. 212; Taylor v. Bradley, 39 N. Y. 129. Skaarass v. Finnegan. Opinion by

ized the secretary to attend the sale and to bid up to

5,0001. The property was bought in at the sale, and the Berry, J.

secretary purchased it by private contraot for 4,700.. [Decided July 17, 1883.]

It appeared subsequently that the quarter's rent preMASTER AND SERVANT- LIABILITY OF MASTER FOR vious to the sale had not been paid; the previous quar INJURY FROM DEFECTIVE MACHINERY-KNOWLEDGE ter had been paid by installments, and six weeks after OF SERVANT.-If a servant before he enters a service, the sale the tenant filed his petition. It appeared knows or afterward discovers that the instrumentali- however that the hotel business was as good during the ties furnished for his use are defective, and under- last year as previously, and that the month of the tenstands, or by exercise of ordinary observation ought ant's failure was the best he had had. The plaintiffs to understand the risks to which he is thereby ex- brought an action for specific performance, relying (in posed, aud if notwithstanding such knowledge, he, answer to the defense and counter-claim for rescission without objection, and without any promise on the on the ground of misrepreseutation) on the fact that part of the employer that such defects will be reme- the defendants had made their own inquiries. Held, died, enters or continues in such service, he cannot re- that the statement that the property was held by a cover for injuries resulting therefrom, but will be "most desirable tenant" could not be treated as “simdeemed to have assumed all the risks of the employ- plex commendatio," and that the defendants, having ment thus known. But it is now well settled that if a relied thereon, were entitled to rescission of the conservant who has kuowledge of defects in the instru- tract, on the authority of Redgrave v. Hurd, 45 L. T.

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