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contract as alleged is void, and the proof in no mauner goods seized to the assignee in bankruptcy appointed, aids the pleading or verdict rendered.

after an adjudication of bankruptcy, in the proceedIt is alleged that the grandfather was advanced in ing in which the provisional warrant was issued, and years, too feeble to ride, and unable to write, and that the assignee having sold the goods, under the order of the appellee (his grandson) undertook to write his let- the court in bankruptcy, without giving to the plaintters to the young lady and deliver them, and the iff in the action of trespass any notice, under section young lady says those letters had reference to a matri- 5063 of the Revised Statutes, of the application for the movial alliance with the old gentleman.

order of sale or of the sale, and such plaintiff not hav. The principal witness for the appellee states, that in ing brought any action against the assiguee to recover a conversation with the old man, the latter said, he the goods, or applied to the bankruptcy court for the had agreed to give the grandson the note, if he could proceeds of sale, and the assignee not being sued in the assist him in marrying; that Hunt was to do his writ- action of trespass, he cannot bring a suit in equity in ing, etc., and was complying with his agreement. a Circuit Court of the United States, joining the

The same statement is made by other witnesses, who marshal as plaintiff, against the plaintiff in the action speak of conversations with this old man in which he of trespass, to have the title to the goods determined spoke of his matrimonial prospects, and of the appel- on the allegatiou that tbey were transferred to such lee as the instrument through which success was to be plaintiff in fraud of the bankruptcy act, and for an inaccomplisbed.

junction restraining the prosecution of that action. He said to a lady witness, that George was comply- Ex parte Schwab, 98 U. S. 240. Buck v. Colbath, 3 ing with his contract like a Turk.

Wall. 334; Sharp v. Doyle, 102 U. S. 686. Leroux v. The defense made, as well as the testimony in sup- Hudson. Opinion by Blatobford, J. port of it, shows clearly (if any contract was made) a [Decided Dec. 10, 1883.) marriage brokerage agreement, the young man undertaking to bring about the marriage in consideration of LIMITATION-UNDER CODE OF TENNESSEE - SUIT the surrender of the note for fire thousand dollars. BROUGHT WITHIN TIME BUT DISMISSED FOR WANT OF

The interference by one, upon an agreement to re- JURISDICTION EXTENDS TIME.-The Code of Tennesceive a moneyed or valuable consideration to induce or see provides thus: “No person, or any one claiming bring about a marriage between others has always been under him, shall have any action, either at law or in held void. Such contracts, if carried out, result in un- equity, for any lands, etc., but within seven years happy marital relations, and have been discounte- after the right of action has accrued.' It also pronanced by the law.

vides thus: “If the action is commenced within the The elementary authorities, as well as the reported time limited, but the judgment or decree is rendered cases, all sustain this view of such a contract.

against the plaintiff upon any ground not concluding We have seldom seen a more flimsy defense than has his right of action, etc., the plaintiff may commence a been made in this case. The declarations of an old, new action within one year after,etc." Plaintiffs comfeeble, and diseased man, with reference to a contemp- menced an action December 31, 1873, in the Federal lated marriage, are made the sole foundation for de- Circuit Court in Tennessee to recover land withheld feating the recovery.

by defendants. The case continued in court until The appellee promised to pay the note, time and February 24, 1877, when the court sustained defendagain, after the death of his grandfather, and there ant's demurrer to the declaration, and dismissed the can be no doubt, from the proof in the record, that the cause on the ground that it had no jurisdiction, Octostatements made by the intestate were mere expres- ber 20, 1877, more than seven years after the right of sions of an intention to give without any considera- action had accrued. Plaintiffs brought this suit for tion whatever. He died in possession of the note, the same cause of action. Held, that the case was not and it passed into the hands of the administrator.. barred by the statute of limitation, aud plaintiffs had

The court below should have sustained the demurrer not been guilty of laches defeating their right of to the answer as amended, aud failing to do that action. It is well settled that the judgment of a should have instructed the jury to find for the plaint- court dismissing a suit for want of jurisdiction does iffs.

not conclude the plaintiff's right of action. In WalSmith on Contracts, 221; Cole v. Gibson, 1 Ves. 503; den v. Bodley, 14 Pet. 156, it was said by this court: Fonblanque Equity, 212.

"A decree dismissing a bill generally may be set up in The judgment below is reversed and the cause re- bar of a second bill having the same object in view, but manded, with directions to award a new trial, and to when the bill has been dismissed on the ground that sustain the demurrer to the defense made, and for the court had no jurisdiction, which shows that the further proceedings consistent with this opinion. merits were not heard, the dismissal is not a bar to

the second suit." So in the case Hughes v. United

States, 4 Wall. 232, this court declared: “In order UNITED STATES SUPREME COURT AB

that a judgment may constitute a bar to another suit STRACT.

it must be rendered in a proceeding between the same

parties or their privies, and the point of controversy BANKRUPTCY-SEIZURE OF GOODS

must be the same in both cases, and must be deterTRESPASS IN STATE COURT-JURISDICTION OF FEDERAL mined on its merits. If the first suit was dismissed COURT-ACTION IN STATE COURT NOT ENJOINED. A for defect of pleadings or parties, or a misconception marshal of the United States, who under a provisional

of the form of proceeding, or the want of jurisdiction, warrant in bankruptcy, has after receiving a bond of or was disposed of on any ground which did not go to indemnity under General Order No. 13, in bankruptcy,

the merits of the action, the judgment rendered will seized goods as the property of the debtor, and been prove no bar to another suit." See also Greenl. Ev., $ sued for damages for such seizure, in an action of tres- 529, 530. That the plaintiffs were not guilty of such pass in a State court, by a third person, who claimed

negligence as to exclude them from the benefit of the that the goods were his property at the time of the provisions of the Code, see Cole v. Mayor of Nashseizure, cannot maintain a suit in equity in a Circuit

ville, 5 Cold. (Teun.) 939; Memphis & Charleston R. Court of the United States, for an injunction to re- Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersby F. strain the further prosecution of the action of tres- Weathersby, 31 Miss. 662; Woods v. Houghton, 1 Gray, pass, the parties to the suit in equity being citizens of 586; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, the same State. Such marshal having delivered the 11 Ala. 156; Skillington v. Allison, 2 Hawks (N. C.)


347; Lansdale v. Cox, 8 J.J. Mar. 394; Phelp v. Wood, 9 Vt. 404; Spear v. Newell, 13 id. 288; Matthews v. Phillips. 2 Salk.; Kinsey v. Hayward, 1 Ld. Ray. 434. Smith v. McNeal. Opinion by Woods, J. [Decided Dec. 3, 1883.]

MINING-OCCUPANCY OF CLAIM UNDER ACT OF CONGRESS-EXPENDITURE ON CLAIMS HELD IN COMMON. The provisions of the act of Congress of 1872 (7 Stats., chap. 152, $ 5), in relations to mining claims, and their location are, that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located an annual expenditure of $10 for each one hundred feet in length along the vein; and that when such claims are held in common, the expenditure may be upon any one of them. And that upon a failure to comply with these conditions the claim shall be opened for re-location in the same manner as if no location of the same had ever been made, provided the original locators, their assigns, or representatives, have not resumed work upon it after failure and before re-location. Held, that where work or expenditure on one of several claims held in common is allowed, in place of the required expenditure on the claims separately, the work or expenditure must be for the purpose of developing all the claims. It does not mean that all the expenditure upon one claimwhich has no reference to the development of the others-will answer. As was said in Smelting v. Kent, 104 U. S. 655, labor and improvements, within the meaning of the statute, are deemed to have been had on a mining claim, whether it consists of one location or several when the labor is performed, or the improvements are made for its development, that is to facilitate the extraction of the metals it may contain, though iu fact such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream or the introduction of water, or where the improvement consists of the construction of a flume to carry off the debris or waste material.” The law does not apply to cases where several claims are held in common, and all the expenditures made are for the development of one of them without reference to the development of the others. In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made, or the labor be performed upon any one of them. Jackson v. Roby. Opinion by Field, J. [Decided Dec. 3, 1883.)

PUBLIC LANDS—TOWN SITE ON - OCCUPANCY POLYGAMOUS WIFE WITH HUSBAND NOT NOTICE OF WIFE'S CLAIM WHEN HUSBAND HAS TITLE DEED SOT WITNESSED-SPECIAL STATUTE CONTROLLING GENERAL LAW-DEED FROM CITY.-(1)Plaiutiff, who was the polygamous wife of T., lived with him on premises in Utah, to which under the act of Congress of 1867, as occupants, they had a right to a conveyance from the corporate authorities of the town where the same where situated. T. took from the corporate authorities of the town a conveyance of the premises. Due notice was given by publication under the statutes, but the plaintiff asserted no clain. After the convey. ance to T. he conveyed the premises to defendants for a valuable consideration, they having no knowledge or notice of any claim by plaintiff thereto. Thereafter plaintiff brought this action for an undivided half of the premises, claiming that there was an agreement between her and T. giving her such a right. Held, that she was not entitled to maintain her action against defendants, they not being bound by a secret agreement between her and T., and her joint occu.

pancy with T. not being constructive notice of her rights. Nothing is clearer than that a purchaser for a valuable consideration, without notice of a prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well-known maxim that when equities are equal the law shall prevail. Williams v. Jackson, 107 U. S. 478; Willoughby v. Willoughby, 1 T. R. 763; Charlton v. Low, 3 P. Wms. 328; Ex parte Knott, 11 Wis. 609; Tildesley v. Lodge, 3 Sm. & Giff. 543; Stine v. Goff, 1 Ball & B. 436; Bowen v. Evans, 1 Jones & La. T. 264; Vattier v. Hind, 7 Pet. 252. Constructive notice is defined to be in its nature no more than evidence of notice, the presumption of which is 80 violent that the court will not even allow of its being controverted. Plumb v. Fluitt, 2 Anst. 438; Kennedy v. Green, 3 My. & K. 719. Where possession is relied ou as giving constructive notice it must be open and unambiguous, and not liable to be misunderstood or misconstrued. Ely v. Wilcox, 20 Wis. 53; Patten v. Moore, 32 N. H. 384; Billington v. Walsh, 5 Bin. 132. It must be sufficiently distinct and unequivocal so as to put the purchaser on his guard. Butler v. Stevens, 26 Me. 481; Wright v. Wood, 11 Harris, 130; Boyce y. Williams, 48 Ill. 371. As said in Mehan v. Williams, 12 Wright, 258, what makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell. See also Holmes v. Stout, 3 Green. Ch. 492; McMechan v. Griffing, 3 Pick. 149; Hancock y. Powell, 9 Ala. 409. (2) The general act of the territorial Legislature provided that a deed to convey title should have witnesses, but a special act providing for the couveyance to occupants by the mayor of a corporation of lands included in a town site, merely directed that “deeds of conveyance for the same shall be executed by the mayor of the city or town under the seal of the corporation.” Held, that according to the well settled rule, that general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together with the specifio qualifying and supplying exceptions to the general rule, tbis provision for the execution of a particular class of deeds was not controlled by the law of the territory requiring deeds generally to be executed with two witnesses. Pease v. Whitney, 5 Mass. 380; Nichols y. Bertram, 3 Pick. 342; State v. Perrysburg, 14 Ohio St. 472; London, eto., R. Co. v. Wandsworth Board of Works, L. R., 8 C. P. 185; Bishop Written Laws, $ 112. Townsend v. Little. Opinion by Woods, J. [Decided Dec. 10, 1883.]





ILLEGAL CONSIDERATION-BROKER WITHOUT CENSE SELLING CANNOT RECOVER COMMISSION.-A real estate broker who had not taken out a license cannot recover commissions for a sale of real estate even though there is a special contract to pay him for negotiating the sale in question. Holt v. Green, 23 P. F. S. M. 198. Morris Run Coal Co. v. Barclay Coal Co., 18 id. 174; Kilborn v. Field, 28 id. 194; Thorne v. Insurance Co., 30 id. 15; Ham v. Smith, 6 Nor. 63. In Craig v. State of Missouri, 4 Pet. 410 an action of assumpsit on a promissory note, the court found that the defendants did assume as the plaintiff had declared, and that the consideration for the note and the assumpsit was for loan-office certificates loaned by the State of Missouri at her loan office in Chariton. Under this finding by the court below it was held in the Supreme Court, that under the plea of non-as


sumpsit the defendants were at liberty to question the make valuable improvements and afterward by col validity of the consideratiou which was the foundation sion or other unfair practice, regains the possessi of the contract, and the constitutionality of the law Harris v. Bell, 10 S. & R. 39; Dixon v. Oliver, 5 Wa in which it originated. In Armstrong v. Toller, 11 509; Gregg v. Patterson, 9 W. & S. 208; Wykoff Wheat. 258, it is held that where a contract grows im- Wykoff, 3 id. 481; D'Arras v. Keyser, 2 Cas. : mediately out of, and is connected with an illegal or Eberly v. Lehman. Opiniou by Merour, J. immoral act, a court of justice will not lend its aid to

[Decided Oct. 4, 1882.] enforce it. So if the contract be in part only connected with the illegal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it." Where however the

KANSAS SUPREME COURT ABSTRACT promise or undertaking, on which suit is brought, is

JANUARY TERM, 1883. * uot connected with the illegal contract, the rule is different. As in the case put by Lord Mansfield in Faikney v. Reynous, 4 Burr. 2069, if one person pay DAMAGES-BREACH OF CONTRACT OF SALE.-In the debt of another at his request, an action may be action on a contract for the sale of real estate, sustained to recover the money, although the original which the vendor's failure to perform is tainted wi contract was unlawful, and though the person who fraud or bad faith, the measure of damages is u paid the money knew that it was paid in discharge of limited to the consideration paid and interest, but m a debt not recoverable at law. Johnson v. Heilings. include all the actual damages sustained by the ve Opinion by Gordon, J.

deo. Tracy v. Gunn. Opinion by Brewer, J. [Decided May 25, 1883.] LEASE-TENEMENT LET BY MONTH-IMPLIED

LIBEL-CHARGE OF ADULTERY ACTIONABLE.-1 NEWAL BY THE MASTER.–Where the letting of a tene- Kansas words charging adultery are actionable per a inent is by the month, an implied renewal of the lease Whatever may have been the rule at common law where a tenant holds over is by the month, aud a

in any other State, there adultery is a' crime punis month's notice to quit is sufficient, and the tenant has able by imprisonment or fine, or both. Henicke the right to leave the premises without liability for Griffith. Opinion by Brewer, J. any portion of a year although he has occupied it for upwards of a year. Hollis v. Burns. Opinion by PARTNERSHIP- PARTNER'S POWER TO SELL FIR Mercur, J.

PROPERTY, AND LIMIT OF.-Where a partnership is ad [Decided Oct. 2, 1882.]

strictly a trading one, and where the business i MECHANICS' LIEN-ATTACHES TO EQUITABLE ESTATE

which the firm is engaged renders it indispensable fc

the ownership of the partnership property to be con -LANDS HELD UNDER PAROL AGREEMNT FOR SALE, WHEN EJECTMENT LIES.-(1) Where improvements are

tinued in the firm until a dissolution of the firm, d made upon land by one in possessionjunder a parol power to sell and dispose of all the joint propert

other arrangements are made, one partner has u contract of purchase the purchaser has an equitable estate to which a mechanics’ lien will attach. Although without the consent and in the temporary absence d the earlier decisions do not harmonize with each his copartner. Where the member of a partnership other, yet it is now undoubtedly held that all parol not strictly a trading one, without authority so to da contracts for the sale of lands are not invalidated by

undertakes to sell without the consent of his oopart the statute of frauds. Where possession has been ner, and in his temporary absence, all of the join taken in pursuance of the contract, and there has been property of the partnership, such sale is not vali such part performance that the purchaser cannot against his copartner, but is binding upon the partne reasonably be compensated in damages, the case is making the sale, and thereby the partner selling dis taken out of the statute. Possession and payment of poses of all his interest in the joint property of the purchase-money only are not sufficient, for the vendee

partnership. Sloan v. Moore, 37 Penn. St. 217; Kim may be compensated in damages; but when to posses

ball v. Insurance Co., 8 Bosw. 495; Kirby v. Ingersoll sion is added permanent improvements of considerable

Harr. Ch. (Mich.) 172; North v. Mudge, 13 Iowa, 496 value, which cannot be thus reasovably compensated, Md. 345; Tapley v. Butterfield, 1 Meto. 515; Arnold v.

Christy v. Sherman, 10 id. 535; Rhodes v. Amsick, 3. the rule is held otherwise. This constitutes such a part performance as to take the case out of the statute.

Stevenson, 2 Nev. 234; Sutlive v. Jones, 61 Ga. 676 McGibbeny v. Burmaster, 3 P. F. Smith, 332; Whack

Blaker v. Sands. Opinion by Horton, C. J. v. Sorber, 2 Whart. 387. When a party has induced

TRIAL-RIGHT TO BE HEARD BY COUNSEL-RESTRICanother on the faith of his promise, though verbal, to

TION OF RIGHT.-When a controverted question of fact expend his cash or labor for which he can only be remunerated by the enjoyment of the thing so promised, either party has an absolute right to be heard by his

is to be submitted to a jury for its determination, equity will compel the promisor to give such deed or writing as will secure the promisee's perfect enjoy

counsel in argument thereon to the jury; and while ment of the thing promised. McKillip v. Molllhenny, time to be occupied by the argument, that is the limit

the court may impose reasonable restrictions as to the 4 Watts, 322. (2) In Pennsylvania ejectment is substituted for a bill in equity. Peebles v. Reading, 8 S.

of its power. Garrison v. Wilcoxson, 11 Ga. 154; Peo& R. 484. When brought to enforce specific perform- 10 Meto. 263 ; Commonwealth v. Austin, 7 Gray, 51;

ple v. Keenan, 13 Cal. 581; Commonwealth v. Porter, ance of a purchase, it is subject to all the considerations that would affect a bill for that purpose in the con

Wilkius v. Anderson, 11 Peun. St. 399; Dobbins v. templation of a chancellor. Brawdy v. Brawdy, 7 Oswalt, 20 Ark. 619; Tobin v. Jenkins, 29 id. 151; Barr, 158. It will lie to enforce execution of articles of

Brooks v. Perry, 23 id. 32; Bertrand v. Taylor, 32 id. agreement on the part of the vendee who has never

470; Cory v. Silcox, 5 Ind. 370; State v. Page, 21 Mo. beeu in possession. Tyson v. Passmore, 2 Barr, 122.

257 ; Freligh v. Ames, 31 id. 253; Trice v. Railroad Co., When the plaintiff relies on an equitable title, tender

35 id. 416; Bierson v. Mahoney, 6 Baxter (Tenn.), 304;

Coldwell v. Brower, 75 III. 516; Slate Co. v. Meyer, 8 of the money due must generally precede the action, yet the rule bas its exceptions. It does not apply Daly, 61; Millerd v. Thorne, 56 N. Y. 402. Douglass v. when the vendor, before payment, has put the vendee Hill. Opinion by Brewer, J. into possession under the contract and induced him to

Appearing in 29 Kansas Reports.


MAY 10, 1883.*

Mayor, 53 Mo. 159; Howard v. San Francisco, 51 Cal. 52. Wilcox v. City of Chicago. Opinion by Walker, J.


ATTORNEY-EVIDENCE OF VALUE OF SERVICES.-In an action by an attorney to recover for professional

VERMONT SUPREME COURT ABSTRACT. services for the defendant, such services resulting in a

JANUARY TERM, 1883. * favorable compromise of litigation, opinions of other attorneys may be received as to the value of the ser


OF AGAINST CREDITORS-SUFFICIENCY vices rendered; but opinions as to the benefits of the

TION.—(1) The owner of land may make a valid chatcompromise to the defendant in his business in the future are not admissible. While the amount involved

tel mortgage of a growing crop that he has planted, in the litigation may not improperly be considered in

which is superior to the lien acquired by another fixing the value of the services of an attorney in the

creditor's subsequent attachment. The mortgagor of

a farm, in possession, and after condition broken, may ease which led to a settlement of the matters in dis

make a valid chattel mortgage of the growing grass pute, and the securing of certain rights and privileges

thereon, which is superior to the lien acquired by anto his client, yet it is not admissible to go into an in

other creditor's subsequent attachment. In the lanquiry concerning prospective benefits which may ac

guage of Hobart, C. J.: “Land is the mother and the crue in the future to the client from such settlement.

root of all fruits. Therefore he that hath it may In proving the value of legal services of an attorney in

grant all fruits that may arise upon it after, and the the defense of a suit, and attending to other matters, leading to a favorable settlement of the litigation, it is

property shall pass as soon as the fruits are extant."

Grantham v. Hawley, Hob. 132; Evans v. Roberts, 5 not proper to present to the view of the jury the setElements made with other persons by those settling form, there is abundant authority holding or recogniz

Barn. & Cress. 836. Although the cases are not uniwith the client, either by direct evidence or by the

ing the distinction to the effect that crops like corn, form of a hypothetical question to witnesses. It is not proper to show that the settlement with the client was

wheat, rye, potatoes, etc., called fructus industriales,

are considered as the representatives of the labor and much more favorable than with other parties. Such

expense bestowed upon them, and regarded as chatcomparisons should not be permitted. See Egleston

tels while still growing; and as such go to the executor 5. Boardman, 37 Mich. 18; Robbins v. Harvey, 5 Conn.

instead of the beir, and may be seized on execution as 341. Haish v. Payson. Opinion by Sheldon, J. Two

chattels, and may be sold or bargained by parol; while judges discent.

growing grass and trees and fruit on trees, called GIFT-DELIVERY OF BONDS WITH RIGHT TO RE- fructus naturales, are in contemplation of law, a part CLAIM SAME IS NOT-LIMITATION.-(1) Where a party of the soil of which they are the natural growth, and delivers bonds to another under a written acknowl- descend with it to the heir, and until severed cannot edgment, from which it is evident the party making be seized on execution, and under the statute of the delivery intends to retain his right to call for frauds cannot be sold or conveyed by parol. Jones v. them if circumstances should make that course desir. Flint, 10 Ad. & E. 753; Dunne v. Furguson, 1 Hayes, able, the transaction cannot be regarded as an abso- 541; Whipple v. Foote, 2 Johns. 422; Stewart v. late gift, even though he never expected to call for Doughty, 9 id. 112; Austin v. Sawyer, 9 Cow. 39; Cutthem. In such case it matters not what may have ler v. Pope, 13 Me. 377; Bryant v. Crosby, 40 id. 21; been his motives for such action. (2) If bonds are de- Ross v. Welch, 11 Gray, 235; Kingsley y. Holbrook, 45 livered by one person to another under a written con- N. H. 313, Howe v. Batchelder, 49 id. 204, 208; Martract to return the same “whenever called for," no shall v. Ferguson, 23 Cal. 65; Davis v. McFarlane, 37 duty to return the bonds or their proceeds will arise id. 634; Bernal v. Hovious, 17 id. 541 ; Graff v. Fitch, until an actual demand for the same is made, and no 58 III. 377; Bull v. Griswold, 19 id. 631; Carson v. right of action will accrue to the lender until after Browder, 2 Lea, 701; Buck v. Pickwell, 27 Vt. 157; such demand is made, and the Statute of Limitations Bellows y. Wells, 36 id. 600. But if the owner of the will not commence to run until the cause of action ac- fee of the land by a conveyance in writing sells these crues. Selleck v. Selleck. Opinion by Dickey, J. natural products of the earth, which grow spontaneNEGLIGENCE-MUNICIPAL CORPORATION NOT LIABLE

ously and without cultivation, to be taken from the FOR NEGLIGENCE OF FIREMAN.-A master is liable for land, or sells the land reserving them to be cut and reinjury to others caused by negligence of his servant

moved by himself, the law regards this as equivawhile in the performance of acts within the line of his

lent to an actual severance. If an absolute sale oper. duty. But cities are not liable for the negligent acts

ates a severance in contemplation of law, then a chatof the officers or men employed in their fire depart

tel mortgage executed after condition is broken must ments while in the discharge of their duty, thus creat

have the same effect. (2)The description in the mortgage ing an exception in this class of cases to the general

was: “also all the grass and oats and corn now growrule of respondeat superior. This exemption from

ing on two hundred and thirty acres of said farm," liability is placed upon the ground that the service is

the farm being properly described; held, prima facie performed by the corporation in obedience to an act

sufficient. Kimball v. Sattley. Opinion by Veazie, J. of the Legislature, and is one in which the corporation CONSIDERATION-FORBEARANCE TO OPPOSE PROBATE has no particular interest, and from which it claims no OF WILL WILL SUPPORT CONTRACT TO PAY. - The special benefit in its corporate capacity, and because plaintiff was heir at law of the defendant's testator, the members of the fire department, although ap- but received nothing under the will. The defendant pointed and paid by the city, are not the agents and was executor, and his wife and daughter legatees. The servants of the city for whose conduct it is liable, but plaintiff claimed that he had determined to contest the act rather as officers of the city charged with a public will on the ground that it had been obtained by undue service, and because sound public policy forbids any influence, that he had given notice of his intention to liability in such a case. Hafford v. New Bedford, 16 the Probate Court, that he had employed counsel, and Gray, 297; Fisher v. Boston, 104 Mass. 87; Maximilian had been advised by him to make opposition; that v. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 513; this was known to the defendant; that the defendant Jewett F. New Haven, 38 Conn. 368; Ogg v. Lansing, promised to pay the plaintiff $5,000 if he would desist 35 Iowa, 495; Field v. Des Moines, 39 id. 575; Heller v. in such opposition; that the plaintiff in consideration * To appear in 107 Illinois Reports.

*To appear in 55 Vermont Reports.




of sucb promise, did forbear; and that the will was circumstantial evidence is such that there is a stron approved without delay. Held, in an action to recover probability that some engine on the road di the five thousand dollars, the plaintiff was neither set the fire, then it may be proper

to sho bound to allege, nor prove that undue influence had the engines that road generally emitte been used to procure the making of the will. But the sparks, or that some one or

of them di consideration was sufficient if he was able to show that so at other times and places. Sheldon v. Hudso he honestly thought he had good and reasonable River R. Co., 14 N. Y. 221; Field v. New York, ete ground for making the claim that the will, so far as it R. Co., 32 id. 339; St. Joseph, etc., R. Co. v. Chase, 1 related to him, was the production of undue influence, Kan. 47; Huyett v. Philadelphia, etc., R. Co., 3 Penn and for that reason he honestly and in good faith in- St. 373; 1 Thomp. Neg. notes, 160. Testimony sbow tended to oppose its establishment. A doubtful right ing that some of the company's locomotives bad pre compromised to be a good consideration for a promise, viously or subsequently scattered fire is not admissible must upon reasonable grounds be honestly entertained. unless it is also shown that the locomotive which There must be a yielding of something by each party. caused the fire was one of them, or was similar in con Bellows v. Sowles. Opinion by Ross, J.

struction, state of repair, or management. Boyce v

Cheshire R. Co., 42 N. H. 97; Phelps v. Conant, 30 Vt CONDITIONAL SALE OF CATTLE -- TITLE OF

277; Malton v. Nesbit, 1 Car. & P. 70; Hubbard v. CHASER FROM CONDITIONAL VENDEE.—The plaintiff Railroad Co., 39 Me. 506; Standish v. Washburn, 21 sold a herd of cattle conditionally, taking a note there

Pick. 237; Collins v. Dorchester, 6 Cush. 396; Robin fore for $837.50, and a lien by which they were to re

son v. Railroad Co., 7 Gray, 92; Jordan y. Osgood, 109 main his until the note was "fully paid." The vendee

Mass. 457 ; Smith v. Railroad Co., 37 Mo. 287; Railwithout the knowledge of the plaintiff, sold a part of

road Co. v. Doak, 52 Penn. St. 379. In Pennsylvania the cattle to the defendants, who paid him, aud he

R. Co. v. Stranahan, 79 id. 405, the court said: "This paid the plaintiff, the plaintiff endorsing it on tho note.

was not a case where a certain engine had thrown out In an action of trover, the note remaining unpaid, held, that the defendants were liable; and that the money

the sparks which set fire to the plaintiff's barn, but it

was where the engine was unknown. Yet the cause of paid by them could not be allowed in mitigation of

the fire was clearly traced to the railroad track, and damages. The lien was recorded; the title was in the

left the belief that some one of the engines of the deplaintiff till the whole debt was paid; the defendants

fondants had emitted the coals which set the barn on were charged with notice of these facts; and their

fire. Hence it was necessary to permit the party to good faith cannot help them. Evidence was not ad

show that the emitting of coals and sparks in unusual missible iu mitigation of damages to show that the

quantities was frequent, and was permitted to be done identical bank bills paid for the cattle were sent to the

by a number of engines." (2) It is a question of fact plaintiff, he being ignorant of the sale. Thrall v.

whether in any particular place it was negligence to so Lathrop, 30 Vt. 307; Coles v. Clark, 3 Cush. 399. The

leave material on or near the track on the grounds of case is distinguishable from Plevin v. Hensball, 25 E.

the company, liable to be iguited by the sparks emitC. L. 21 (10 Bing. 24.) Morgan v. Kidder. Opinion by

ted by engines. It is not per se, or as a question of Veazie, J.

law, negligence, but a question of fact to be deter

mined by the jury in any given case. Pierce Railw. WISCONSIN SUPREME COURT ABSTRACT. 434; Sear. & R. Neg. 404; Ohio & M. R. Co. y. ShaneOCTOBER, 1883.

felt, 47 III. 497; 1 Redf. Railw. 477, and notes; Smith

v. Lind & S. W. R. Co., L. R., 5 C. PL. 98; Karsen v. NEGLIGENCE-INJURY TO TRAVELLER ON HIGHWAY

Milwaukee & St. P. R. Co., 29 Minn. 12; Toledo, etc., TRAVEL MUST BE ON PROPER PART OF HIGHWAY.-It

R. Co. v. Wand, 43 Iud. 476; Pittsburgh, C. & St. L. R. is the duty of the traveller on the highway to remain

Co. v. Nelson, 51 id. 150; Kansas P. R. Co. F. Butts, in the travelled track, or that part of the highway

7 Kans, 308. Gibbons v. Wisconsin Valley Railroad Co. which, to a reasonable width, has been graded or pre

Opinion by Osborn, J. pared for that purpose. Hence if without necessity, SALE-OF CHATTELS OF SPECIFIED QUALITY-MUST or for his own pleasure or convenience he voluntarily

BE SEPARATED FROM OTHERS BY VENDOR TO MAKE deviates from the travelled track, which is in good DELIVERY.-In a contract for the sale of lumber of a condition, and in so doing meets with an accident specified quality, held that it was the duty of vendor from some cause outside of the travelled track, the to separate and set apart the lumber from inferior lumtown will not be responsible for any damage or injury ber of different dimensions so as to be capable of which he may thus sustain. Sykes v. Pawlet, 43 Vt. identification, and uutil this should be done, there 446; Matthews v. Baraboo, 39 Wis. 674; Cremer v. would not be a sufficient offer to deliver to put the Portland, 36 id. 92. Cartwright v. Town of Belmont. vendee in default for refusing to accept and carry it Opinion by Lyon, J.

away. To constitute a delivery of chattels sold, the

articles must be set apart so that possession can be NEGLIGENCE-OF RAILROAD COMPANY SETTING FIRE

taken by the purchaser, without any further act on -EVIDENCE AS TO-LEAVING COMBUSTIBLE MATERIAL ON GROUND.-(1) In an action against a railroad com

the part of the seller, except in the case of such artipany for setting fire by locomotive sparks where it is

cles as wine, oil or grain of common quality, and as shown, either by positive or circumstantial evidence,

are incapable of identification. Kimberly v. Patchin,

19 N. Y. 333; Ward v. Shaw, 7 Wend. 404; Downer v. that some locomotive of the company caused the fire, without the identification of any particular one, such

Thompson, 2 Hill, 137 ; 2 Pars. Cont. 160; 2 Kent, evidence might have weight in showing the negligence

Comm. 496; Veazy v. Harmony, 7 Greenl. 91; Isber

wood v. Whitmore, 11 Mees. & W. 345; Avery p. of the company. There may be cases which have gone

Stewart, 2 Conn. 69. Hoffman v. King. Opinion by further than this in the admission of such evidence,

Orton, J. but they do not appear to be authority in reason. In Ross v. Boston, etc., R. Co., 6 Allen, 87, it was held TowN-BOUNDARIES BY PRESCRIPTION-IRREGULAR competent to show that the engine in question emitted ACTION OF COUNTY BOARD ACQUIESCED IN.- Where burning sparks a fortnight previous to the fire in ques- the proceedings of a county board in attaching territion, and that other similarly constructed engines had tory to a town were irregular to such a degree as would emitted sparks which set fires. Where there is no justify a court in holding them void in an action in proof of what particular engine set the fire, aud the which they might have been drawu in question, com

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