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Court commissioner, or by officers of the United to take an oath to support that Constitution, and they States in execution of their laws; while in the present are bound by it, and the laws of the United States case, the person who sued out the writ was in custody made in pursuance thereof, and all treaties made under of an agent of another State, charged with an offense their authority as the supreme law of the laud, “anyagainst her lawg.

thing in the Constitution or laws of any State to the Underlying the entire argument in behalf of plaint- contrary potwithstanding." If they fail therein, and iff in error is the idea that the judicial tribunals of the withhold or deny rights, privileges or immunities seStates are excluded altogether from the consideration cured by the Constitution and laws of the United and determination of questions involving an authority States, the party aggrieved may bring the case from or a right, privilege or immunity derived from the the highest court of the State in which the question Constitution and laws of the United States. But this could be decided to this court for final and conclusive view is not sustained by the statutes defining and reg- determination. ulating the jurisdiction of the courts of the United The recognition therefore of the authority of a State States. In establishing those courts Congress has taken court, or of one of its judges, upon writ of habeas corcare not to exclude the jurisdiction of the State courts pus, to pass upon the legality of the imprisonment from every case to which, by the Constitution, the ju- within the territory of that State of a person held in dicial power of the United States extends. In the ju- custody-otherwise than under the judgment or orders diciary act of 1789 it is declared that the Circuit Courts of the judicial tribunals of the United States, or by of the United States shall have original cognizance, the order of a commissioner of a Circuit Court, or by “concurrent with the courts of the several States," of officers of the United States acting under their lawsall suits of a civil nature, at common law or in equity, cannot be denied merely because the proceedings ininvolving a certain amount, in which the United States volve the determination of rights, privileges or immuare plaintiffs or petitioners, or an alien is a party, or vities derived from the pation, or require a constructhe suit is between a citizen of the State where the suit tion of the Constitution and laws of the United States. is brought and a citizen of another State. By section Congress has not undertaken to invest the judicial tri711 of the Revised Statutes of the United States, as bunals of the United States with exclusive jurisdiction amended by the act of February 18, 1875, jurisdiction, of issuing writs of habeas corpus in proceedings for the exclusive of the courts of the several States, is vested arrest of fugitives from justice and their delivery to in the courts of the United States of all crimes and of- the authorities of the State in which they stand fenses cognizable under the authority of the United charged with crime. When a demand has been made States; of all suits for penalties and forfeitures in- in accordance with the Constitution of the United curred under their laws; of all civil causes of admi. States by the State from which the fugitive has filed, ralty and maritime jurisdiction; of seizures under the upon the executive authority of the State in which he laws of the United States on land or on waters not is found, that instrument indeed makes it the duty of within admiralty and maritime jurisdiction; of all the latter to cause his arrest and surrender to the excases arising under the patent-right or copy-right laws ecutive authority of the demanding State or to the of the United States; of all matters and proceedings agent of such authority. But if it should appear upon in bankruptcy; and of all controversies of a civil nature the face of the warrant issued for the arrest of the fu. wbere a State is a party, except between a State and its gitive that such demand was not accompanied or supcitizens, or between a State and citizens of other ported by a copy, certified to be authentic, of any inStates or aliens; the jurisdiction of the States remain- dictment found against the accused, or of any affidavit ing unaffected in all other cases to which the judicial made before a magistrate of the demanding State, power of the United States may be extended. And by charging the commission by him of some crime in the the act of March 3, 1875, the original jurisdiction of the latter State, could it be claimed that the arrest of the Circuit Courts of the United States is enlarged so as to fugitive would be in pursuance of the acts of Congress embrace all suits of a civil nature at common law or or that the agent of the demanding State had authorequity, involving a certain amount, arising under the ity from the United States to receive and hold him to Constitution or laws of the United States, or treaties be transported to that State? made, or which shall be made under their authority, or This question could not be answered in the affirmain which the United States are plaintiffs or peti- tive except upon the supposition, not to be indulged, tioners, or in which there shall be a controversy that so far as the Constitution as the legislation of between citizens of different States, or

Congress is concerned the transporting of a person betroversy between citizens of the same State claim. yond the limits of the State in which he resides or ing lands under grants of different States, or a happens to be to another State depends entirely upon controversy between citizens of a State and for- the arbitrary will of the executive authorities of the eign States, citizens or subjects. But it is ex- State demanding and of the State surrendering him. pressly declared that in such cases their jurisdiction is Whether the warrant of arrest issued by the governor

concurrent with the courts of the several States," of California for the arrest of Bayley appeared upon the jurisdiction of the latter courts being of course its face to be authorized and required by the act of subject to the right to remove the suit into the proper Congress-that is, whether upon its face a case was court of the United States at the time and in the mode made behind which the State courts or officers could prescribed, and to the appellate power of this court as not go consistently with the Constitution and laws of established and regulated by the Constitution and laws the United States, are questions upon which it is unof the United States. So that a State court of original necessary to express an opinion. What we decidejurisdiction, having the parties before it, may consist- and the present case requires nothing more-is that so ently with existing Federal legislation determine cases far as the Constitution and laws of the United States at law or in equity, arising under the Constitution or are concerned it is competent for the courts of the laws of the United States,or involving rights dependent State of California, or for any of her judges-having upon such Coustitution or laws. Upon the State courts power under her laws to issue writs of habeas corpusequally with the courts of the Union rests the obliga- to determine upon writ of habeas corpus whether the tion to guard, enforce and protect every right granted warrant of arrest and the delivery of the fugitive to or secured by the Constitution of the United States, the agent of the State of Oregon were in conformity and the laws made in pursuance thereof, whenever those with the statutes of the United States; if so, to rerights are involved in any suit or proceeding before mand him to the custody of the State of Oregop. And them, for the judges of the State courts are required since the alleged fugitive was not at the time the writ

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in question issued in the custody of the United States, braska, of 1867, which provided that “no bill shall by any of their tribunals or officers, the court or judge contain more than one subject, which shall be clearly issuing it did not violate any right, privilege or immu- expressed in its title." It would, we think, be a nity secured by the Constitution and laws of the strained construction, to hold that the title of the act United States, in requiring the production of the body is to be so interpreted as to be limited to works of the fugitive upon the hearing of the return to the situated in the State, when such limitation does not writ, to the end that he might be discharged, if upon exist in the body of the act, and when the words "in hearing, it was adjudged that his detention was uvau- this State,” in the title, may fairly be regarded as apthorized by the act of Congress providing for the ar- plicable to the prior words "counties, cities and prerest and surrender of fugitives from justice, or by tho cincts,” to which words they are applied in the body laws of the State in which he was found. The writ of the act. This principle of construction is sanctioned was without value or effect unless the body of the ac- by the views expressed in Montclair v. Ramsdell, 107 cused was produced. Subject then to the exclusive U. S. 152, and in City of Jonesboro v. Cairo and St. and paramount authority of the National government, Louis R. R. Co., 110 U. S. See also Cooley's Const. by its own judicial tribunals, to determine whether Lim. 141, et seq. We have not been referred to any persons held in oustody by authority of the courts of the decision of the Supreme Court of Nebraska which we United States or by the commissioners of such courts, regard os in conflict with these views. (4) Where an or by officers of the general government, acting under action of law is tried by a Circuit Court, without a its laws, are so held in conformity with law, the States jury, and the facts on which, on a writ of error, the have the right, by their own courts, or by the judges plaintiff in error seeks to raise a question of law, are thereof, to inquire into the grounds upon which any not admitted in the pleadings, or specially found by person within their respective territorial limits is re- the court, and there is a general finding for the destrained of his liberty, and to discharge him if it be as- fendaut in error on the cause of action which involves certained that such restraint is illegal; and this, not- such question of law, and there is no exception by the withstanding such illegality may arise from a viola- plaintiff in error to any ruling of the court in regard tion of the Constitution or the laws of the Uuited to such question, this court can make no adjudication States.

in regard to it. County of Otoe. Opinion by Blatchf, It is proper to say that we have not overlooked the J. recent elaborate opinion of the learned judge of the [Decided March 17, 1884.] Circuit Court of the United States for the District of

WAR-ACTION TO COMPEL PAYMENT OF LEGACYCalifornia iu In re Robb, 19 Fed. Rep. 26; 1 West. Coast

CONFEDERATE CONFISCATION NO DEFENSE.-In action Rep. 439. But we have not been able to reach the con

brought against an executor and the sureties on his clusion announced by him.

bond to compel payment of certain legacies, the execuFor the reasons we have stated, and without consid

tor set up in bar the judgment of the Confederate ering other questions discussed by counsel, the judg.

court, and averred that the State of Tennessee was ment of the Supreme Court of California (1 West. Coast

theu in the hands of the rebel authorities, both civil Rep. 255) must be

Affirmed.

and military; that he was threatened by them with [Tarble's case in State court is reported 3 Am. Rep.

punishment if he did not comply with the judgment;

that he believed it would be dangerous to refuse com85.-ED.)

pliance; that the officers had the power to seize his

property, and to arrest and imprison him; and that UNITED STATES SUPREME COURT AB- under his fears he paid the money. Held no defense. STRACT.

As Chief Justice Chase said: “Those who engage in rebellion must consider the consequences. If they

succeed, rebellion becomes revolution, and the new MUNICIPAL BONDS -IRREGULARITIES CURED BY STATUTE-SUBJECT EXPRESSED IN TITLE-PRACTICE

government will justify its founders. If they fail, all

their hostile acts to the rightful government are viola-NO

RULING.-(1) Bonds to the amount of $40,000 were issued by the county of

tions of law, and originate no rights wbich can be

recognized by the courts of the Nation whose authorOtoe, in the State (then Territory) of Nebraska, to the

ity and existence have been alike assailed.” ShotCouncil Bluffs and St. Joseph Railroad Company, as a donation to that company to aid in the construction

bridge v. Macon, Chase's Dec. 136. Neither the unlawof a railroad in Fremont county, Iowa, to secure to

ful proceedings of the Confederate government nor the

judgment of its unauthorized tribunal exempts the said Otoe county an eastern railroad connection. Notwithstanding any defects or irregularities in the vot

executor from liability. It may, indeed, as he asserts, ing upon or issuing said bonds, they were validated by

be a hardsbip upon him to compel him to pay the section 8 of the Act of the Legislature of the State of hardship however comes not from the regular admin

money again which he has once paid to others. This Nebraska, passed February 15, 1869 (Laws of 1869, p. 92), entitled "an act to enable counties, cities, and

istration of the law under the Constitution, but from precincts to borrow money on their bonds, or to issue

the violence of the insurrectionary movement in

which he participated. * * If questions of hardbonds to aid in the construction or completion of works of internal improvement in this State, and to

ship are to be considered, the plaintiff might put in legalize bonds already issued for such purpose," taken

her claim there. Stevens v. Griffith. Opinion by Field, in connection with another act of said Legislature of

J. [As to powers of courts in Rebel States, see 15 Alb.

L. J. 94, notes.-ED.] the same date (Laws of 1869, p. 200). The decreo of this court in Railroad Co. v. County of Otoe, 16 Wall.

[Decided March 17, 1884.] 667, cited and applied. (2) The Legislature of a State, INTERNAL REVENUE-WHISKY BOND - SALE unless restrained by its organic law, has the right to SPIRITS, FORFEITED, DISCHARGES. --When because of authorize a municipal corporation to issue bonds in the fraudulent acts of a distiller, bonded spirits are aid of a railroad, and to levy a tax to pay the bonds seized and sold, and of the proceeds tbe taxes are paid, and the interest on them, with or without a popular no action can be maintained on the distiller's bond. vote, and to cure, by a retrospective act, irregularities As two of the defendants are sureties, they have the in the exercise of the power conferred. (3) The first right to insist, that when the spirits are seized and of said acts of February 15, 1869, was not in violation sold by the United States for any reason whatever, of section 19 of article 2 of the Constitution of Ne- the proceeds shall be first applied to the payment of

EXCEPTION

TO

OF

the tax. It was said by this court in the case of Uni- v. Bradley, 9 Wall. 394. Under that section all perted States v. Boecker, 21 Wall. 652, that a person about sonal suits are saved from abatement in cases wheu to become a surety on the bond required from a dis- the cause of action survives by law. But it would be tiller before commencing business “ may examine and anomalous to allow a person to continue a suit which determine how far, in the event of liability on the he is not authorized to begin. It is a more reasonable part of the principal, the property where the business construction of the sectiou to hold that when Conwas to be carried on would be available as security for gress authorized the coutinuance of a pending suit in the government and indemnity for the surety.” So the name of the executor or administrator, it meant to we think the fact that the tax due the United States refer to an executor or adıninistrator who was comis made by law a first lien on the spirits deposited in peteut to begin the action. The present suit is saved the distillery warehouse may fairly be considered by from abatement by the statute. The death of the the surety when he estimates the risk he takes by alien plaintiff suspends further proceedings until signing the distillery warehouse bond. There is an another lawful plaintiff be substituted. Cir. Ct., D. implied undertaking on the part of the United States, N. J., Dec., 1883. Krop.ff v. Poth. Opinion by based on the statute making the tax a first lien, that Nixon, J. the proceeds of the spirits shall be first applied to the

SHIP-LIEN FOR SUPPLIES TAKES PRECEDENCE OF payment of the tax, and this undertaking enters into

PRIOR MORTGAGE.- For necessary supplies furnished the distiller's warehouse bond. The government

a vessel in a State not that of her owner's residence, a therefore having forfeited the spirits for the miscon

maritime lien presumptively arises. The Neversink, 5 duct of the distiller, cannot consistently with the

Blatchf. 539; The Lulu, 10 Wall. 192; The Eliza Jane, rights of the sureties apply their proceeds on some

1 Spr. 152; The New Champion, 17 Fed. Rep. 816, and other account, and collect the tax of them, for the con

cases cited. This lien will take precedence of a prior tract of a surety is to be strictly construed. Leggett

mortgage, duly registered, under section 4192 of the v. Humphries, 21 How. 66; Miller v. Stewart, 7 Wheat.

Revised Statutes. The mortgagee, by assenting to the 680; United States v. Boyd, 15 Pet. 187; United States

use and possession of the vessel by the mortgagor for v. Boecker, 21 Wall. ubi supra. We think therefore

the purposes of navigation, without restriction, asthat the proceeds of the sale of the spirits was in fact

sents by implication to the creation of such maritime and in law applied to the payment of the tax due

liens as by law arise incidentally in the ordinary busithereon, and that the bond of the defendants in the

ness of the ship. That rule was laid down in this discase given for its payment was discharged. United

trict in the case of The E. M. MoChesney, 8 Ben. 150, States v. Ulrici. Opinion by Woods, J.

and the same rule has been elsewhere sustained. The [Decided March 17, 1884.]

Granite State, 1 Spr. 277; The Henrich Hudson, 7 L.

R. (N. S.) 93. See also The Lulu, 10 Wall. 192, 193; UNITED STATES CIRCUIT AND DISTRICT

The May Queen, 1 Spr. 588. Dist. Ct., S. D. N. Y., Jan.,

1884. The Charlotte Vanderbilt. Opinion by Brown, J. COURT ABSTRACT.*

ILLIYOIS SUPREME COURT ABSTRACT.*

SHIPPING AND ADMIRALTY-OFFER OF PILOT SERVICE-SIGNALS-"STATE INCLUDES “TERRITORY.. (1) The pilot commissioners of Oregon, under the Pilot Act of 1882, are authorized and required to declare by rule what shall constitute a valid offer of pilot service on the Columbia river bar pilot grounds, by a signal addressed to the eye, and in so doing may prescribe the distance within which such sigual must be made from the vessel signaled. (2) The statute of the United States does not prescribe any signal to be used on a pilot boat in making an offer of pilot service; and the light required by section 1233 of the Revised Statutes, to be carried by a sailing pilot vessel at night, is only used to prevent collision and incidentally to give notice of the character of such craft; but the usual signal by which an offer of pilot service is made is the jack set at the main truck in the day-time, and “flareups" at night, and this jack is usually the ensign of the country in which the service is offered. In the United States it is a blue flag charged with a star for every State then in the Union, and called the “Union Jack." (3) The term " State" in the act of March 2, 1837 (5 Stat. 153, 8 4236, Rev. Stat.), regulating the taking of pilots on a water forming the boundary between two States, construed to include an organized “Territory " of the United States. Dist. Ct., Oregon, Feb., 1884. The Ulock. Opinion by Deady, J.

A BATEMENT-DEATH OF ALIEN PLAINTIFF.-Under the provisions of section 955 of the Revised Statutes of the United States, when an alien sues in the Circuit Court and dies, the suit cannot be continued to final judgment by his executor or administrator, unless such executor or administrator has taken out letters testamentary or of administration ou the estate in the State where the suit is brought. See Dixon's Ex’rs v. Ramsay's Ex’rs, 3 Cranch, 319; Noonan

*Appearing in 19 Federal Reporter,

NEGLIGENCE-WHAT FACTS ESTABLISH-ADMISSION OF IMPROPER EVIDENCE--DECLARATIONS OF THIRD PERSONS.-(1) In an action on the case against a railway company, to recover for a personal injury alleged to have resulted from the negligence of defendant, where there was evidence tending to show that the plaintiff was struck by cars being moved by the defend. ant at a street crossing; that the train was being run at an unusual rate of speed; that no bell was rung or whistle sounded; that there was no light on the forward car that struck the plaintiff, and that plaintiff was observing due care for his safety, it was held that such facts, assuming them to have been proven, established a clear right of recovery in the plaintiff. (2) The admission of improper evidence of a trifling character, not affecting in the slightest degree the defense set up, affords no ground for reversing a judgment in favor of the plaintiff fully justified by the other facts found by the jury. (3) The defeuse offered to prove that just before the accident the plaintiff, in a saloon, called for a drink of liquor, and that the bar-keeper told him he had enough, which the court excluded ou objection. Held, that this evidence was not admissible, and was properly refused. The fact whether plaintiff was under the influence of liquor was subject to proof the same as any other fact in the case, but could not be proved by the declaration of a third person. Lake Erie v. Zoffinger. Opinion per Curiam.

HIGHWAYS-OPENING STREET-WHEN ENJOINED — DEDICATION-WHAT ESSENTIAL- ABANDONMENT. -A plat of a village recorded in 1858 contained lines indicating blocks, with spaces between them, probably intended for streets, but no streets were named, and no length or width of the spaces between the blocks, or

*To appear in 107 Illinois Reports,

as

a

or

any scale, was given by which the streets could be as- them, when they come in question in the courts of certained and located. Held, that where the owner of this State, must be proved by evidence as matters of adjoining.blocks had fenced the same, including the fact. Smith v. Bartram, 11 Ohio St. Rep. 690. Larunknown space between, and such inclosure had been well v. Hanover Savings Society (Com.). Opinion by maintained for orer twenty years without complaint, Dickman, J. (See 4 Alb. L. J. 130; 5 id. 384; 16 Eng. the village authorities were properly enjoined from Rep. 591, 602; 32 id. 468.-ED.] opening the supposed street through such inclosure, no surveyor could from the plat, find the limits of the street. To make

PENNSYLVANIA SUPREME COURT good dedication, either under the statute

ABSTRACT. at common law, there should be a definite and certain description of that which is proposed to be dedicated, BONDS-BONA FIDE PURCHASER OF STOLEN.-Corand an acceptance by the public before the withdrawal poration bonds, of ordinary form, payable to bearer at or abandonment of the offer to dedicate. Littler v. maturity, like bank notes and promissory notes inCity of Lincoln, 106 Ill. 353; Trustees, etc., v. Walsh, dorsed in blank, pass by delivery, and a bona fide pur57 id. 370. There was therefore as we understand this chaser is unaffected by want of title in his vendor. record, no definite statutory dedication of any par- Connor v. Fifth Nat., etc. Opinion per Curiam. [See ticular quantity of ground for this street, and the 7 Am. Rep. 423; 20 id. 376; 25 id. 152.--ED. ] proof fails to show a sufficient offer to dedicate any [Decided Nov. 12, 1883.] definite quantity, or such an acceptance of any offer in

LANDLORD AND TENANT-COVENANT TO PAY TAXES, that regard as is necessary to constitute a commonJaw dedication. Indeed the evidence shows such an

ETC.–PAVING AND CURBING STREET.-A clause in a abandonment by the public as now precludes the opeu

lease, which provides that the lessee shall "pay all ing of the street. See Peoria v. Johnston, 56 Ill. 51;

taxes, water-rents, and assessments upon the premiChamplin v. Morgan, 20 id. 182; Town of Lewiston p.

ses," includes a charge for paving and curbing the Proctor, 27 id. 418; Littler v. City of Lincoln, 106 id.

streets in front of the leased premises, when ordered 353. Winnetka v. Prouty. Opinion by Scholfield, J.

by the municipal authorities. In an action of cove[See 14 Alb. L. J. 278; 7 id. 171;5 id. 139; 6 App. Cas.

nant by the lessors in the above case against the lessees 643; 34 Eng. Rep.-ED.)

for the cost of curbing and paving the leased premises. Held, that the fact that the parties to the lease had

agreed that a third party should do the work, and that OHIO SUPREME COURT COMMISSION the question of the liability therefor should be subseABSTRACT. *

quently determined, was not such an alteration of the covenant as to render necessary a change in the form

of the action. McManus v. Cassidy, Penn. St. Rep. SURETY-MAY WAIVE DISCHARGE.—The promise of

260. Griffin v. Phanix Co. Opinion per Curiam. a surety, without other consideration than the exten

[Decided Feb. 25, 1884.) sion, to pay the note, if his priucipal does not, made after the creditor has arranged with the principal to

MALICIOUS PROSECUTION-WHEN DOES NOT LIE FOR extend the time of payment, but with a full kuowl- PROSECUTING CIVIL SUIT.-It has been wisely deteredge of all the facts, is good. Where a surety has been mined, that for the prosecution of a civil suit, however discharged by the extension of time, it is a personal unfounded, where there has been no interference with privilege which he may waive, and this he does when either the person or property of the defendant, no with a full knowledge of the facts he renews his action will lie. In Potts v. Imlay, 1 Southard, 330, promise. Brandt on Sur. and Guar., $ 300; Fowler Chief Justice Kirkpatrick alleged that the books, for V. Brooks, 13 N. H. 240; Porter v. Hodenpuyl, 5 four hundred years back, had been searched to find an Mich. 11; Bank v. Whitman 66 Ill. 331 ; Mayhew instance where an action on the case for the malicious v. Cricketts, 2 Swanst. 185; Smith v. Winter, 4 M. prosecution of a civil suit, like the one then trying, & W. 454; Stevens v. Lynch, 12 East, 38. Bramble v. had been successfully maintained, and that it was conWard. Opinion by Nash, J.

ceded by the counsel for the plaintiff that uo such case RAILROAD-PRIVATE ROAD CROSSING-FENCE-EVI

had been found. In the case of Eberly v. Rupp, 9

Norris, 259, the very latest expression of this court DENCE-BOOKS—INADMISSIBLE AGAINST STRANGER.Where a private road extends across the track and

upon the subject in hand, and a case much stronger in

its facts than the one under consideration, for there right of way of a railroad company, and counects with a public highway, the company is required to main

the action was for the recovery of damages resulting tain across such private road suitable feuces, or pro

from the services of a writ of estrepement, but it was

held that the action could not be maintained inasvide other protection against injuries which may result from animals passing from such highway, through

much as the writ being purely preventive, neither the private road, on or along the railroad track. The

arrested the person of the defendant nor seized his whole subject has been receutly considered in Iudiana,

goods. See also Kramer v. Stock, 10 Watts, 115; where the legislation is similar, and after disapprov

Mayer v. Walter, 14 P. F. Smith, 283; Woodmansie ing some of the decisions in that State, the same view

v. Logan, 1 Penn. (N. J.) 67. Muldoon V. Rickey. here stated is enforced by the Supreme Court in an

Opinion by Gordon, J. (See 44 Am. Rep. 343, 346, n., able opinion by Elliott, J. Indianapolis, etc., R. Co.

maliciously filing lis pendens, 20 Hun, 555.-ED.] v. Thomas, 84 Ind. 194. Books kept by a railroad com

[Decided April 16, 1883.) pany solely for its own use in the management of its business, are not admissible as evidence, when offered

NEW HAMPSHIRE SUPREME COURT ABSTRACT.* by the company, in an action against it by a stranger to such company seeking to recover damages sustained OFFICER

WHEN NOT by the company's negligence. Railroad v. Cwnning- LIABLE IN DAMAGES.–To make an officer a trespasser ton (Sup. Ct.)Opinion by O'Key, J.

for exceeding or abusing his authority, he must be STATUTE-FOREIGN MUST BE PROVED.-The statutes

shown to have committed acts which persons of ordiof another State and also any peculiar construction nary care and prudence would not, under like circumwhich the courts of such State may have placed upon

stances, have committed, and made such a departure *To appear in 40 Ohio State Reports.

* To appear in 59 New Hampshire Reports.

EXCESSIVE

ATTACHMENT

from duty as to warrant the conclusion that he in- claim of legal right, and not by consent, permission, tended from the first to do wrong, and use his legal or indulgence, and these facts must be proved by the authority as a cover for an illegal act. Taylor v. Jones, party claiming the easement. Wallace v. Fletcher, 30 42 N. H. 25, 35; Closson v. Morrison, 47 id. 482. It N. H. 434, 448; Burnham v. Kempton, 44 id. 78.88; does not appear that the officer acted in bad faith in Gilford v. Lake Co., 52 id. 262; Sargent v. Ballard, 9 making the attachment, or that he was culpably negli-Pick. 251; Smith v. Miller, 11 Gray, 145; White r. gent in not ascertaining the value of the real estate or Chapin, 12 Allen, 516; Wash. Ease. 110, 111; Godd. that it was unincumbered, before attaching the per- Ease. (Bennett's ed.) 172; 2 Gr. Ev., & 539; and author sonal property. Davis v. Webster. Opinion by Al- ities passim. Taylor v. Gerrish. Opinion by Stanlen, J.

ley, J. [As to first point see 10 Am. Rep. 195; 12 id. 50; RECEIPT–SO FAR AS CONTRACT, CANNOT BE VARIED

18 id. 455.-ED.) BY PAROL.–The defendant offered in evidence the fol. [Decided June, 1880.] lowing receipt: “In consideration of twenty-five hundred dollars to me paid by Martha Goodwin, executrix of. * * * I hereby waive all right to contest

MICHIGAN SUPREME COURT ABSTRACT. said will or the proof thereof, and all claim I have or might have as heir of deceased. Elisha Goodwin." A GIFT-DEPOSIT ÎN BANK IN ANOTHER'S NAME, SUB. writing which partakes of the nature both of a con JECT TO OWN ORDER-DEATH OF DONEE.—Plaintiff tract and a receipt may be contradicted and explained sued defendant for a balance on deposit; the defense in regard to any fact which it erroneously recites, but was that the money belonged to his deceased wife. in other respects it is to be treated like other written Plaintiff recovered and defendant appeals. Held, that contracts. 1 Gr. Ev., $ 305, and note; Smith v. Hol- the judgment should be affirmed. There is no prinland, 61 N. Y. 635. The writing before us, denomi- ciple of law which makes the mere placing of money nated a receipt, partakes of this double nature. In so or property in another's name an irrevocable gift to far as it may be regarded as a receipt, it is capable of that person. But this arrangement falls short of even explanation and contradiction with regard to any fact this, because in law it was merely a contract between erroneously recited; but in its main features it is two persous that one should open an account in the more properly to be regarded as a contract, made name of a third person, the original depositor having binding upon the plaintiff by his signature, and on the a reserved right to draw the sums credited. At eomdefendant, by being delivered to and accepted by her. mon law no one could sue on an express contract, exIn this aspect it could no more be varied or controlled cept the parties to it. Under the equitable action for by oral evidence than any other written contract be- money had and received, a beneficiary may sometween the parties. James v. Bligh, 11 Allen, 4; Egles- times sue, but this can only be where the parties have ton v. Knickerbacker, 6 Barb. 458 ; Kellogg v. Richards given him such a right as transfers the fund to his con14 Wend. 116; Coon v. Knap, 8 N. Y. 402, 405; Ryan v.

trol. The money belonging to oue person cannot Ward, 48 id. 204, 207, 208; Henry v. Henry, 11 Ind. cease to belong to him until he does some act to dis236. Each of the cases above cited bears a strong re- pose of it. The cases heretofore determined in this semblance to the case before us in respect to the pecu- court are stronger cases than the present in favor of liar cbaracter of the written instrument which was the plaintiff's rights. See Burtnett v. First Nat. Bank of subject of contention. See also Brown v. Cambridge, Corunna, 38 Mich. 630, and Detroit Say. Bank v. Bur3 Allen, 474; Sencerbox v. McGrade, 6 Minn. 484; rows, 34 id. 153. In the former case the bank had no Wykoff v. Irvine, id. 496; Brown v. Brooks, 7 Jones dealings whatever with the plaintiff, but held bis Law (N. C.), 93; Capps v. Holt, 5 Jones Eq. (N. C.) money deposited by an agent in his own name. In the 153; Harrison y. The Juneau Bank, 17 Wis. 350. Good- latter it was understood that the wife, in whose name win v. Goodwin. Opinion by Foster, J.

the money was deposited, was to draw all the checks, [Decided June, 1880.]

but they were to be payable to the husband's order,

which made the case more analogous to the present. LICENSE-REVOKED BY LEVY UNDER EXECUTION

In both the question was treated as one of fact. The TITLE BY PRESCRIPTION.-(1) A statement by A. that

decisions referred to in the opinions in those cases, as if B. would dig out a spring on A.'s land, stone it up,

well as in the arguments, sustain that doctrine. Daris and lay pipes to convey the water to B.'s house, B.

v. Lenawee. Opinion by Campbell, J. might have the spring, creates a iicense merely, which may be revoked, even though B. complies with A.'s [Decided March 6, 1884.] offer. Being a license, it was revoked by the set-off on WILL-SURVIVORS OR THEIR LEGAL REPRESENTAthe execution against A. Harris v. Gillingham, 6 N. TIVES — DAUGHTER DYING-HER CHILDREN TAKE.H. 9; Carleton v. Redington, 21 id. 291, 305; Cowles v. Property was left by will to the four children of the Kidder, 24 id. 364, 379; Houstou v. Laffee, 46 id. 505, testatrix, none of whom were married at date of the 507: Dodge v. McClintock, 47 id. 383, 385; Stevens v. will, with the proviso “that if any of my children die Dennett, supra; Blaisdell. v. R., 51 N. H. 483, 485; before me, my estate shall be divided among the surCook v. Stearns, 11 Mass. 533, 538; Drake v. Wells, 11 vivors or their legal representatives, share and share Allen, 141; Godd. Ease. (Bennett's ed.) 475; Gale & alike.” One daughter married, and died before her Wh. 353; Wash. Ease. 5, 19. (2) The right to the spring mother, leaving two children. Held, that by the term was an iucorporeal right, and could only be created by “legal representatives” in this will was evidently deed, or by user, under such circumstances and for meant the lawful heirs; a different construction is not such a period as to furuish evidence from which it claimed by either party. It is only in case of the death might be inferred that there was a deed. It could not of one of the four children of the testatrix that she be created by parol, or by writing not under seal. desired any of the property to go to "legal represenStevens v. Dennett, 51 N. H. 324, 331 ; Hewlins v. Ship- tatives" of any of her children. If the " legal reprepam, 5 B. & C. 221, 229; Cocker v. Cowper, 1 Cr. M. & sentatives” intended are confined to those of the surR. 418; Gale & Wh. 12; Godd. Ease. (Bennett's ed.) 88. vivors, as claimed by counsel for appellant, then the (3) Title by prescription can only be acquired by an term has no mesniug in the will, because survivors adverse, exclusive, uninterrupted use, sufficiently could have no legal representatives. A will must be long continued (in this State for twenty years) under so construed that each word means something, if posa claim of title, and with the knowledge and acquies-sible, and this cannot be done unless the words "legal cence of the owner of the land. It must be under a representatives" wean the legal heirs of the deceased

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