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privileges, and the court held, as against the public, tion intervenes, it is necessary that some convenient that such privileges could not be implied, but e con- means of trausportation shall be furnished, and the verso, where such privileges are expressly conferred, simplest and most economical, in many cases, is the the doctrine of the common law would apply. On the ferry." See also Hudson v. Cuero Land & Emigration other hand, it is contended that the "exclusive privi. Co., 47 Tex. 56; 26 Am. Rep. 289; Seal v. Donnelly, 50 leges” conferred by our statute are confined to the Miss. 662; Taylor v. Railroad Co., 4 Jones Law (N.C.). ferry landings -- the place “where such ferry is estab- 282, 285; Hartford Bridge Co. v. Union Ferry Co., 29 lished "- and do not extend on each side, so as to pre- Conn. 229. vent the licensing of contiguous and rival ferries, when The principle to be deduced from these authorities the County Court is “satisfied” the public accommo- of the nature of the franchise, and the uses and purdation requires it; that in effect, the statute but reit- poses for which a ferry is licensed and established, is erates in express terms what was decided in the War- that a ferry can only exist in connection with some ren Bridge case, and confines the “exclusive privi- highway or place where the public have rights. The leges” to the landings or place “where such ferry is grant of a ferry frauchise for the transportation of established,” and that no exclusive privileges can be persons and property across a stream to and from a implied beyond this or against the public, or jurisdic- place where there is no highway, or in which tion of the County Court to license other ferries con- the public have no rights, would be void aud inoperatiguous, whatever may be the effect of such competi- tive. The object of a ferry being to connect highways tion in withdrawing tolls. In our judgment, the pri- or places in which the public have rights, when intermary object to be accomplished by our statute is con- sected by streams, it becomes, when licensed and esferring jurisdiction upon County Courts, in their re- tablished, a part of such highway or line of travel bespective counties, to establish roads and to license fer- tween such places. When therefore the County Court ries for the transportation of persons and property has exercised its jurisdiction by granting a license at across streams which obstruct land travel, using pub- the suggestion of the public convenience, and a ferry lic ways, is to secure the public accommodation. For is established connecting such highways or places, thus the attainment of this end, but as subordinate to it, forming a continuous line of transportation, it has ex. when a ferry franchise is granted, the right to take hausted its jurisdiction as to such places or highways lawful tolls is conferred as an equivalent for the obli- while such franchise exists. As a link or part of the highgation to accommodate the travelling public. Al- way in the line of travel between such places or highthough the taking of such tolls is privati juris, and in- ways, the franchise gives, under our statute, to the per cident to the franchise, "a ferry is publica juris, and sou licensed to keep the ferry, the exclusive privilege cannot be created without a license, and is a thing of of transporting all persons and property between such public interest and use.” Attorney-Gen. v. Boston, 123 places or highways. The County Court cannot, at such Mass. 478.
places or highways, establish anotber ferry without As a link in the chain of transportation on dry land, violating the exclusive privileges secured by the frana a ferry forms a part of a public highway, or a connect- chise granted to the ferry already established, and ing link between places in which the public have which forms a part of such highway, and is designed rights, and as such it is a thing of public interest, and and required to accommodate all persons, on paying in which the public have the right of way or use on the required tolls, passing along the line of travel bepaying certain specified tolls, regulated and prescribed tween such places or highways. The reason is that the by public authority. This is evident from the nature ferry is established for the purpose of taking up the of the franchise, and the uses and purposes for which highway, so to speak, and unitiug it into one continuferries are liceused and established. “A ferry," says ous highway or line of travel for the public accommoMr. Dane, vol. 2, p. 683, “ forms a part of the public dation; and as a protection for the expense and outpassage or highway wherever rivers or waters are to be lay in thus serving the public convenience the statute passed in boats, and being a part of the highway, any gives the exclusive privilege of carrying all persons and obstruction of the use thereof is a nuisance." Ang. property coming on the line of such highway to the river Highw., $ 416. The definition of a ferry as given by bank for transportation—the place “where sucht ferry is Lord Abinger, in Huzzey v. Field, 2 Cromp. M. & R. established." There is no room to establish another 432, 442, is this: “A public ferry is a publio highway ferry, for the ferry already established, by forming a of a special description, and its termini must be in part,continues the highway over the water, and occupies places where the public have rights as towns or vills, that place. In the sense here applied, it may be said or high ways leading to towns or vills."
that a highway is already laid out over the water In Newton v. Cabitt, Mills, J., in delivering the “where such ferry is established " during the period judgment of the court, said: “A ferry exists in respect for which the franchise is granted, and until it expires, of persons using a right of way where the line of way or be revoked or forfeited, the County Court has no is across water. There must be a line of way on jurisdiction to establish another ferry at such place, land coming to a landing-place on the water's edge," designed to accommodate the travel passing over such etc.
highway “where such ferry is established," for the In Burlington & Henderson Co. Ferry v. Davis, 48 statute secures the exclusive privilege as to this to the Iowa, 133; 30 Am. Rep. 390, the court says a ferry is in ferry already licensed. some sense an extension of a public road. Mr. Cooley, Construing the statute in the strictest sense by conin his work ou Constitutional Limitations, 593, says, fining the “exclusive privilege " to the place "where in reference to the rights of the States to lawfully es- such ferry is established,” and it being limited either tablish ferries over navigable waters, that “this also is to a highway or place in which the public have rights, only the establishment of a public highway."
of which the ferry forms a part, the conclusion seems And in Sullivan v. Board of Suprs., 58 Miss. 799, inevitable that the County Court, having exercised its Cooper, J., in delivering the opinion of the court, said: jurisdiction by the grant of a license to keep a ferry at “ Where a stream crosses a public highway, the con- such place or highway, cannot exercise it again while tinuity of the highway is not broken; it does not end such franchise exists. Just outside or beyond this, and on one side of tbe stream and begin again on the not for the purpose of connecting other places or highother, but continues across the stream, and the public, ways in which the public have rights of access, is not for the purposes of travel, have the same right to go within the purview of the authority conferred on the on the water over the highway that they have to pass County Court by the statute to grant franchises to along other portions of it; but as a physical obstruc- keep ferries. That would be to establish a ferry where there was neither highway nor public place, and with- clusive rights of transportation to such an extent, on out which the public could not bave been accommo- each side, as to prerent near and injurious competidated, and would necessarily be inoperative and void. tion, as contended, is not presented by the record beNow the ferry which is sought to be established is fore us, nor decided. We only decide, in construing shown by the record to be designed to accommodate our statute upon this record, that the court was withthe same travelling public for which the Albina ferry out authority to grant the Montgomery license, and was licensed. It founds its claim to the franchise upon here we think the case ought properly to have ended. the limited facilities and imperfect accommodations But in the Circuit Court it seems that an objection furnished by the existing ferry to meet the present was raised and argued for the first time as to the validand growing demands of the travelling public at the ity of the assignment of certain interests in the Alplace where it is established, and therefore the right bina ferry licenses to the Multnomah Railway Comand the need to establish another ferry at such place pany, and the court held that a ferry license, being a for the convenience of the public. There is no pre- personal trust, was not assignable, and therefore such tense that it will form connection with any other assignment was void. As this question was argued with place or highway, in which the public have rights, than much zeal and great ability, we shall only briefly advert the highway connected by the Albina ferry, and of to it, although we do not see how the validity of that which it forms a part. It only claims not to occupy transaction was inquirable upon the record in this prothe particular spot where the other ferry lands, but it ceeding. There is no doubt some contrariety of opindoes not deny its proximity to it, and object to serve ion exists in the authorities upon this subject. The the same custom and to form a part of the same high- Albina ferry license was not granted to the riparian way which the franchise of the Albina ferry now cov- owners. And in Knott v. Frush, 2 Or. 237, it was held ers. And tbis is assumed and recognized in the order that a ferry license granted to another than the ripaof the court granting the license to it, for the order rian owner is a mere personal trust upon conditions, only seeks to protect the landings and the passage of and that his liability cannot be removed by substituthe boats of the Albina ferry, but not the exclusive tion, but that such license terminates upon the decease privileges secured to the Albina ferry by the statute as of the person to whom it was granted. This decision a part of the highway of transporting all persons and was the subject of much adverse criticism by counsel. property where it is established. It is the proximity As authorities to sustain its view it cites Munroe v. which carries passengers from the same place as where Thomas, 5 Cal. 470, and Thomas v. Armstrong, 7 id. the Albina ferry is licensed and collects tolls for them, 286, and these in turn bave been approved and followed which infringes and violates the exclusive privilege se- in Wood v. Truckee Turnpike Co., 24 id. 474, and Peocared to its franchise. When the proximity is such as ple v. Duncan, 41 id. 510. The license is regarded as to produce this result, it is, in effect and substance, es- a special privilege conferred by the government upon tablishing another ferry at the same place as where the the individual, and which does not belong to the citiAlbina ferry is established, which the County Court zen generally by common right. cannot do without violating the statute which gives The grant of such franchise or special privilege to these exclusive rights to the Albina ferry at the place the individual is considered the bestowal of a personal where established, and therefore the County Court is trust and confidence, which cannot be assigned nor be inhibited from licensing another ferry at that place. the subject of sale on execution). Sullivan v. Board of
When it is considered that the period for which a Suprs., 58 Miss. 791; Seal v. Donnelly, 60 id. 662; Raferry license is granted is not to exceed five years, the gan v. McCoy, 29 Mo. 367; The Maverick, 1 Spr. 24; Aroutlay and expense necessarily involved, the duty the thur v. Com. & R. Bank of Vicksburg, 9 Smedes & M. law imposes of keeping safe and commodious boats for 420; State v. Rives, 5 Ired. Law, 307; Amnant v. Pittstransportation, the right of regulating its tolls, and burgh Turnpike Co., 13 Serg. & R. 210; Lombard v. the bond required to be given to better secure and en- Cheever, 3 Gil. 473; Herm. Ex'ns, $$ 131, 361; Ang. force the faithful performance of all the duties and ob- Corp., $ 191; Redf. Railw. 419, 422; Freem. Ex'ns, $ 179. ligations the law imposes and attaches to the franchise And again it has been said that a ferry license is in in its interests, and for the benefit of the public con- the nature of an appointment to an office, having cervenience and accommodation a just and satisfactory tain fees annexed to it, to be held at the pleasure of reason is found why our statute secures to every per- the appointing power. Day v. Stetson, 8 Me. 370. On son licensed to keep a ferry the exclusive privilege of the other hand, it is contended that the right given trausportation across the streain where such ferry is under a ferry license is a franchise, which is as much established. In the case before us we are not con- property as any other incorporeal hereditament; that cerned with the power or jurisdiction of the court to a franchise was by the common law said to be a branch establish ferries to connect other highways and places, of the king's prerogative in the hands of the subject although the effect of establishing such, by reason of (2 Sharsw. Bl. Comm. 37); but that in America it is unvicinity, might be to divert the custom and to dimin- derstood to be a particular privilege conferred by ish the tolls of an existing ferry; nor of the effect of a grant from the government and vested in individuals. change of circumstances, produced by an increase of 3 Kent Comm. 458; People v. Utica Ins. Co., 15 Johns. population, or of a new neighborhood requiring the 387. Chancellor Kent says that “an estate in such opening of new highways, which would carry with it franchise, and an estate in lands, rest upon the same the right to continue the live of these highways across principle, being equally grants of a right or privia water highway. We are simply construing our stat- lege for an adequate consideration." 3 Kent Com. ute with regard to the record before us, for the pur- 458. pose of ascertaining whether the County Court can In Conway v. Taylor's Exr., 1 Black, 632, Mr. Jus. grant a license to establish a ferry, in substance, at the tice Swayne said : A ferry franchise is as much propsame place where one already licensed and estab- erty as a rent or any other incorporeal hereditament, lished. The statute gives the exclusive privilege of or chattels or realty. It is clothed with the same sanctrausportation at the place where such ferry is estab- tity, and entitled to the same protection as other proplished, and the establishing of another, in substance, erty." at the same place, is a contradiction of such exclusive In Lippincott v. Alexander, 27 Iowa, 460, it was held privileges and beyond the power of the court to do. that a ferry license is not vacated nor the franchise Whether these exclusive privileges conferred by the lost by the death of the party to whom it was granted, statute extend beyond the place where the ferry is es- but passes to his representatives. This decision is in tablisbed, and include the common-law doctrine of ex- direct conflict with Knott v. Frush, supra, and disapproves the reasoning of the authorities cited to sustain sons sued for acts, performed or omitted under orders it. It should be observed however that the lowa stat- of officers of the goverment, even when there was only ute makes certain provisions for the sale of such fran- color of authority, could, instead of having his case chise as real property upon execution, which do not tried in a State court, where both court and jury might exist in our statute, and which was referred to in be prejudiced against him, remove his case into a the decision as strengtheniug the views therein ex- court of the United States for trial. Its constitutionpressed.
ality, so far as it authorizes this removal, was settled In Billings v. Breinig, 45 Mich. 70, it was held in Mayor v. Cooper, 6 Wall. 247. The defendant how. the franchise of keeping a ferry is property, hav- ever for some reason did not attempt to remove this ing the valuable incidents of other kinds of prop- case into the Circuit Court of the United States, proberty, and transferable from the original granteeably because the Supreme Court of the State bad deto others, subject to couditions lawfully imposed, cided in the case of the State v. Gatzweiler, 49 Mo. 17, and to such government control as results from that the limitation clause of the act of Congress was its public nature. Bouman's Devisees v. Wathen, valid and was binding on the State court. The seventh 2 McLean, 376; Felton v. Deall, 22 Vt. 170; Berr- section declares, “that no suit or prosecution, civil or son v. Mayor, 10 Barb. 2:23; Ladd v. Cholard, i criminal, shall be maintained, * * * unless the Minor (Ala.), 366; Lewis v. Intendant and Town Coun- same shall have been commenced within two years next cil of Gainesville, 7 Ala. 85; Peter v. Kendal, Barn. & after such arrest,imprisonment, trespass, or wrong may C. 703; Willoughby v. Harridge, 12 C. B. 742; Dundy v. have been done or committed, or act may have been Chambers, 23 Ill. 370.
omitted to have been done; provided that in no case It thus appears that some diversity of opinion exists shall the limitation herein provided commence to run in the authorities as to the right to sell or assign a ferry until the passage of this act, so that uo party shall, by franchise, or whether the same is vacated by death, virtue of this act, be debarred of his remedy by suit or and that Knott v. Frush, supra, is not without author- prosecution until two years from and after the passage ity to sustain it. That it may be done when the con- of this act.” As to these acts, Congress had the power sent of the power that granted it has been obtained to vest the jurisdiction exclusively in the courts of the does not seem to be questioned. But whether the United States, and to regulate all the incidents of suits County Court, to whom the Legislature has delegated brought in any jurisdiction authorized to eutertain the power to grant ferry licenses, is authorized to give them. This being so, it must necessarily have the its consent to a sale or consignment of a ferry license power to regulate the remedy, including the right to upon filiug the required bond, or by filing such_boud, prescribe the time within which the suit must be and the acceptance of the same by the court, the assign-brought. In an action brought in a State court, the ment would be unassailable, we are not prepared, nor Federal statute was set up as a defense. Held, that is it necessary for us to decide, except that it may not the act of Congress by its terms applies to all cases of be amiss for us to observe that the statute imposes no the character described in the statute, and we see no restrictions upon the sale or transfer of the franchise, reason to limit its application to the Federal courts. nor is there any provision that upon the death of the If Congress has a right to legislate on this subject, it party to whom the license was issued, that it shall be has the right to make that legislation the law of all vacated and the franchise lost. The statute is simply courts into which such a case may come, and we think silent upon that subject. But whether the assignment they have done this in the statute under consideration. is void, or the effect of an assignment would be to va- Clark v. Dick, 1 Dill. 15; see Jenkins v. The Bank, 106 cate the license, we do not see how such matters are U. S. 571; Bean v. Beckwith, 18 Wall. 510. Mitchell v. inquirable in this proceeding. The record, both as to Clark. Opinion by Miller, J. the petition and order of the court, oguizes the val- [Decided March 3, 1884.) idity of the existing franchise. No question is raised by the record about the Albina ferry license, or any
CHALLENGE TO JURORS-ACCUSED MUST BE PRESENT sale or assigument of its franchise. The only question
-HEARSAY-CONFESSIONS MADE WHEN IN CUSTODYinvolved was the authority or power of the court to
STATUTES REGULATING PROCEDURE NOT EX POST grant the Montgomery license. Tbat was the object of
FACTO.-(1) The trial in Utah by triers appointed by and for which the writ of review was sued out, and the
the court, of challenges of proposed jurors in felony only matter necessary to be passed upon. When that
cases, must be had in the presence as well of the court was done the court had exhausted its power upon the
as of the accused; and such presence of the accused case made by this record, and the decision of matters
cannot be dispensed with. Criminal Code of Proce. dehors it, without reference to the correctness of the dure, s$ 218, 239, 241-253. The natural life, says Blackprinciple decided, was a nullity, and ought not to
stone, “cannot legally be disposed of or destroyed by stand. Besides it would seem to follow that if the
any ndividual, neither by the person himself, nor by franchise is a personal trust, and not assignable with any other of his fellow creatures, merely upon their out the consent of the granting power, as argued and
own authority." 1 Bl. Com. 133. The public has an claimed, then the right to object to the transfer of the interest in his life and liberty. Such being the relafranchise, and its exercise by a party to whom it was
tion which the citizen holds to the public, the Legisnot originally granted, was a right affecting the public lature has deemed it essential to the protection of one which belongs to its officers to take advantage of by an
whose life or liberty is involved in a prosecution for appropriate proceeding, and could not be collaterally felony, that he shall be personally present at the trial, assailed here. People v. Duncan, 41 Cal. 508; Conner
that is, at every stage of the trial when his substantial v. Paxson, 1 Blackf. 168; Edmondson v. De Kalb Co.,
rights may be affected by the proceedings against him. 51 Ala. 103.
If he be deprived of his life or liberty without being The judgment declaring the Montgomery license
so present, such deprivation would be without that void is affirmed, but in all other respects reversed.
due process of law required by the Constitution (2). The rule that hearsay evidence is incompetent to es
tablish any specifio fact which in its nature is suscepti. UNITED STATES SUPREME COURT AB- ble of being proved by witnesses who speak from their STRACT.
own knowledge, reaffirmed. 7 Cranch, 295. (3) A con.
fession freely and voluntarily made is evidence of the LIMITATION FEDERAL STATUTE
most satisfactory character. But the presumption MIGHT BE REMOVED--ACTS DONE UNDER MILITARY
upon which weight is given to such evidence, pamely, AUTHORITY.--An act of Congress provides that per
that an innocent man will not imperil bis safety or
prejudice his interests by an untrue statement, ceases States, or by a State, city or town, upon the enlistwhen the confession appears to have been made, either ment of a minor as a soldier, during the recent war, in consequence of inducements of a temporal nature belonged to him, and not to his father or master. held out by one in authority, touching the charge pre- Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 ferred, or because of a threat or promise made by, or Mass. 169. See also Alexander v. Wellington, 2 Russ. in the presence of such person, in reference to such & Myl. 35, 56, 64. When each of these acts speaks of charge. A confession made to an officer will not be lands "sold by Congress," "five per cent of the net excluded from the jury merely because it appears that proceeds” of which shall be reserved, and be “disthe accused was previously in the custody of another bursed” or “appropriated" for the benefit of the officer; and the court will not, as a condition precedent State in which the land lies, it evidently has in view to the admission of such evidence, require the prosecu- sales in the ordinary sense, from which the United tion to call the latter, unless the circumstances render States receive proceeds, in the shape of money payable it probable that the accused held a conversation with into the treasury, out of which the five per cent may the first officer upon the subject of a confession, or be reserved and paid to the State, and does not intend justify the belief of collusion between the officers. 1 to include lands promised and granted by the United Greenl. Ev., $ 215; 1 Archbold Cr. Pl. 125; 1 Phillips' States as a reward for military service, for which Ev. 533-4; Starkie Ev. 73; 1 Leach, 263; Rex v. Clewes, notbing is received into the treasury. The question 4 Carr. & Payne, 221. (4) A statute which simply en- depends upon the terms in which the compact between larges the class of persons who may be competent to the United States and each State is expressed, and not testify, is not ex post facto in its application to offenses upon any supposed equity extending those terms to previously committed. Such alterations relate to cases not fairly embraced within their meaning. The modes of procedure only which the State may regulate
conclusion to which the court is brought, upon a conat pleasure, and in whicb no one can be said to have a sideration of the language of the statutes relied on, vested right. See Kring v. Missouri, 107 U. S. 221; 27 and of the nature of the sụbjects to which they refer, Alb. L. J. 347; 45 Am. Rep. 541. Hopt v. Territory of accords with the contemporaneous and uniform conUtah. Opinion by Harlan, J.
struction given to them by the executive officers [Decided March 3, 1884.]
charged with the duty of putting them in force. If (As to last point, see also 4 Crim. L. Mag. 715; 46
the court had a doubt of the true meaning of their Cal. 114.-ED. A. L. J.]
provisions, this practical construction would be en
titled to great weight. Edwards v. Darby, 12 Wheat. PUBLIC LANDS-DISPOSITION OF IN SATISFACTION OF 206; United States v. State Bank of North Carolina, 6 MILITARY LAND WARRANTS, NOT A “SALE" ENTIT- Pet. 29; United States v. McDaniel, 7 id. 1; Surgett v. LING STATE TO PERCENTAGE-PRACTICAL CONSTRUC- Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; TION OF STATUTE.—Under the act of March 3, 1845, ch. United States v. Moore, 95 U. S.760; United States v. 76, relating to the admission of Iowa into the Union, Pugh, 99 id. 265; Swift Co. v. United States, 105 id. 691, or the act of April 18, 1818, ch. 67, for the admission of 695. Appeals dismissed. United States v. Watkins, the State of Illinois into the Vuion, by which "five 97 U. S. 219, distinguished. Matter of Iowa and Iliper cent of the net proceeds” of public lands lying nois. Opinion by Gray, J. within the State, and afterward “sold by Congress,” [Decided March 3, 1884.) shall be reserved and appropriated for certain public uses of the State, the State is not entitled TAXATION-ABATEMENT OF TAX NOT REVOCABLE.to a percentage on the value of lands disposed of by
Where an abateinent of taxes due from a distillery is the United States in satisfaction of military land war
once made by the secretary of the treasurv, he has no rants. Lauds disposed of by the United States in authority to revoke such abatement and hold the oblisatisfaction of military land warrants are not sold, gors upon the distillery bond liable for such tax. within the meaning of the statutes upon wbich the
United States v. Alexander. Opinion by Woods, J. petitioners rely. A sale, in the ordinary sense of the
JURISDICTION — STIPULATION OF PARTIES CANNOT word, is a transfer of property for a fixed price in
GIVE.-In an action upon a policy of marine insurance money or its equivalent. When property or money is
the amount of insurance with interest would not extransferred or paid
ceed $4,800, but it was stipulated between the parties service, the property or money may be said
that if judgment was entered for plaintiffs it should to be the price of the service; but it can
be for the amount of $5,010. Held, that an appeal hardly be said that the service is the price of the
would not lie to this court. Parties cannot stipulate property or money, or that the property or money is
in contradiction to the pleadings in order to give jurissold to the person performing the service. Nor can it
diction. It was decided in Lee v. Watson, 1 Wall. 339, be said that the pay of an officer or soldier in the army
that "in an action upon a money demand, where the or navy is sold to him by the government in consider
general issue is pleaded, the matter in dispute is the ation of a price paid by him. Land or money, other
debt claimed, and its amount, as stated in the body of than current salary or pay, granted by the govern
the declaration, and not merely the damages alleged, ment to a person entering the military or paval ser
or the prayer for judgment at its conclusion, must be vice of the country has always been called a bounty; and while it is by no means a gratuity, because the
considered in determining whether this court can take
jurisdiction on a writ of error sued out by the plaintpromise to grant it is one of the considerations for
iff.” Such is now the established rule. Schacker v. wbich the soldier or sailor enters the service, yet it is
Hartford Fire Ins. Co., 93 U. S. 241; Gray v. Blanchclearly distinguishable from salary or pay measured
ard, 97 id. 565; Tintsman v. National Bank, 100 id. 6; by the time of service. For example, it was held by Banking Association v. Insurance Association, 102 id. Lord Mansfield and the Court of King's Bench in 1784,
121; Hilton v. Dickinson, 108 id. Webster V. Buffalo that though the master of an apprentice was entitled
Ins. Co. Opinion by Waite, C. J. by the act of Parliament of 2 & 3 Anne, ch. 6. $ 17, to the wages of his apprentice enlisting into the pavy, yet JURISDICTION-WHEN JOINDER OF JUDGMENTS CANthe apprentice's share of prize money belonged to him- NOT GIVE.-The rule is well settled that distinct judgself, and not to his master, because it was not wages, ments in favor or against distinct parties, though in but the bounty of the crown. Carsan v.Watts, 3 Doug. the same record, cannot be joined to give this court 350; Eades v. Vandeput, 4 id. 1. Upon like grounds, jurisdiction. The whole subject was fully considered it has been held that bounty money paid by the United in E. parte Baltimore & Ohio R. Co., 106 U. S. 5;,
Farmers' Loan & Trust Co. v. Waterman, id. 265; partnership, and will be applied to the liquidation of Adams v. Crittenden, id. 576; Schwed v. Smith, id. partnership in preference to individual liabilities. 188. Tupper v. Wise. Opinion by Waite, C. J.
Fairchild v. Fairchild, 64 N. Y. 471; Dyer v. Clark, 5 CONTRACT
Meto. 562; Jarvis v. Brooks, 27 N. H. 37, 67 ; Cilly v. PERFORMANCE PREVENTED BY THE
Huse, 40 id. 358; Parker v. Bowles, 57 id. 491, 495. GOVERNMENT-DAMAGES-LOSSES AND EXPENDITURES.
Messer v. Messer. Opinion by Clark, J. Losses and expenditures incurred by a contractor in the fair endeavor to perform a contract made with HEIRS—WHEN DOES NOT INCLUDE HUSBAND.-The the government when the government stopped the word "heirs," in its technical common-law significaperformance of the contract, are recoverable as dam- | tion, does not necessarily embrace all who would share ages, and there is no presumption that the expendi- in the personal estate under the statute of distributures were unreasonable. The prima facie measure of tions; and a bequest to the heirs of a deceased wife damages for the breach of a contract is the amount of does not include her surviving husband, unless it apthe loss which the injured party has sustained thereby. pears from other parts of the will that such was the If the breach consists in preventing the performance intention of the testator. Keteltas v. Keteltas, 72 N. of the contract, without the fault of the other party, | Y. 312; Luce v. Dunham, 69 id. 36; Cleaver v. Clearer, who is willing to perform it, the loss of the latter will 39 Wis. 96; Esty v. Clark, 101 Mass. 36; Lord v. consist of two distinot items or grounds of damage, Bourne, 63 Me. 368. Welkins v. Ordway. Opinion by namely, first, what he has already expended toward Clark, J. performance (less the value of materials on hand); secondly, the profits that he would realize by perform
EASEMENT-RIGHT OF WAY-HOW MAY BE USED.-A ing the whole contract. The second item, profits, right of way, granted or reserved without limit of use, cannot always be recovered. They may be too re
may be used for any purpose to which the land accommote and speculative in their character, and therefore modated by the way may naturally and reasonably incapable of that clear and direct proof which the law
be devoted. The owner of a way on land o requires. But when, in the language of Chief Justice
auother is limited in its use to the terms of the grant Nelson, in the case of Masterson v. Mayor of Brook
from which the way is derived. If granted for one lyn, 7 Hill, 69, they are “the direct and immediate purpose he cannot use it for another. French v. Marsfruits of the contract,” they are free from this objec- tin, 24 N. H. 440; Cowling v. Higginson, 4 Mee. & W. tion; they are then “part and parcel of the contract
245; Kirkham v. Sharp, 1 Whart. 323; Wash. Eas. 185, itself, entering into and constituting a portion of its
136. But while the terms of the grant caunot be envery elements; something stipulated for, the right to
larged beyond their natural meaning, they will not be the enjoyment of which is just as clear and plain as to
so narrowed as to prevent the beneficial use by the the fulfillment of any other stipulation." Still in
grantee of what is granted, in the manner and for the order to furuish a ground of recovery in damages,
purpose fairly indicated by the grant. Senhouse v. they must be proved. If not proved, or if they are of
Christian, 1 T. R. 560; Russell v. Jackson, 2 Pick. 574, such a remote and speculative character that they 577. Abbott v. Butter. Opinion by Allen, J. cannot be legally proved, the party is confined to his
CONVERSION - PLAINTIFF'S MONEY DEPOSITED IN loss of aotual outlay and expense. This loss howerer
DEFENDANT'S NAME-NO DEMAND NECESSARY TO MAINhe is clearly entitled to recover in all cases, unless the
TAIN ACTION-STATUTE OF LIMITATIONS.—Where the other party, who has voluntarily stopped the per
defendant, at the request of plaintiff, deposited money formance of the contract, can show the contrary. See
of the plaintiff in a savings bank in the defendaut's also Planche v. Colburn, 5 C. & P. 58; 8. C., 8 Bing. 14; Masterton v. Mayor of Brooklyn, 7 Hill (N. Y.), 61;
name, upon the understanding that the plaintiff was Goodman v. Pocock, 15 Q. B. 576; Hadley v. Baxen
to have the money whenever she wanted it, but if
she never wanted it, that it was to become the defeud. dalé, 9 Excheq. 341; Fletcher v. Tayleur, 17 C. B. 21; Smeed v. Ford, 1 El. & El. 602; Inch bald v. Western
ant's money at the plaintiff's death, and the defendant
afterward, without the knowledge or consent of the Coffee Co., 17 C. B. (N. S.) 733; Griffin v. Colver, 16 N. Y. 489.
plaintiff, withdrew the money and converted it to her United States Behan. Opinion by
own use, an action for the recovery of the money can Bradley, J.
be maintained without a previous demand. In such JUDICIAL SALE-SETTING ASIDE RESALE-SETTING
case the statute of limitations runs from the time of ASIDE AND REINSTATING-DAMAGES-USE OF PROP
the wrongful withdrawal of the money from the sap. ERTY.-Property was sold to H., by order of a court ivgs bank. Giles v. Merritt. Opinion by Clark, J. of bankruptcy. He not paying for it, the court, without notice to him, vacated the order of sale, and made an order seiling it to C., who paid for it, and went into possession of it. Afterward, on review, the sale to C.
MICHIGAN SUPREME COURT ABSTRACT. was set aside, and the sale to H. reinstated. H. hay. ing paid for the property, received possession of it, DAMAGES—WHEN RIGHT OF ACTION ASSIGNABLEand afterward the money paid by C. was repaid to BREACH OF WARRANTY-MEASURE.- The plaintiff sued him, held, that C. was not liable to pay to H. the in his own right and also as assignee, on an agreeprofits derived by him from the use of the property ment made by defendant, on sale of an evaporator while he had it. Conro v. Crane. Opinion by Blatch. | purchased by plaintiff and his assignor with ford, J.
'guaranty and warrant to work well." The machine was tried but did not work satisfactorily, and was
subsequently tendered back. “The question is made NEW HAMPSHIRE SUPREME COURT
whether the claim was assignable, so as to enable the ABSTRACT. *
plaintiff to sue alone. We have no doubt it was. It
has been several times held that rights to sue to rePARTNERSHIP-REAL ESTATE-DEBTS OF PARTNER- cover damages for fraud or deceit are not assignable, SHIP.-Real estate purchased with partnership funds
Dickinson v. Seaver, 44 Mich. 624; S. C., 7 N. W. Rep. for the use of the partnership and used in the partner. 182; Dayton v. Fargo, 45 Mich. 153; 8. C., 7 N. W. ship business, is in equity regarded as assets of the Rep. 758; see Brush v. Sweet, 38 Mich. 574; but there
is no doubt of the right to assign a claim like this. * To appear in 59 New Hampshire Reports.
The statute provides that the assignee of “any bond,