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ILLINOIS SUPREME COURT ABSTRACT.* validity thereof and the right to recover thereon. JUNE TERM, 1883.

Flynn v. Allen, 7 P. F. Smith, 485; Lyons v. Divelbis,

10 Har. 185. * But his own testimony shows SPECIFIC PERFORMANCE — WHEN DECREED

that he was as deep in the fraud as any of the others. BREACH OF CONTRACT TO ASSIGN PATENT-REMEDY AT It appears that he was a recognized agent of this and LAW.-(1) Courts of equity never dec the specific

other companies of like character, and was engaged in performance of a contract when the decree will be a what he naively terms “the speculative life insurance vain and imperfect one. Tobey v. Bristol, 3 Story, 800.

business as a business." It also appears this was only So a contract to assign an interest in letters patent for one of several policies which he held on this same an invention will not be specifically enforced on bill

The plaintiff bought a worthless filed only a short time before the patent expires. (2) A thing, knowing it to be worthless. He perhaps supcourt of equity has no jurisdiction of a bill seeking posed that owing to his connection with the company solely to recover damages for a breach of a contract to the latter would assess the loss and pay. Be tbat as it perform services, and to assign an interest in letters may, he certainly knew that if he got his money some patent, when there is no partnership account to be ad- one would be cheated. In doing this the law will not justed, and the contract is a personal one between the aid him. Blattenberger v. Holman. Opinion by Paxparties, not as partners, but as individuals. The rem- son, J. (14 Weekly Notes, 283). [See 13 Am. Rep. 313; edy iu such case is complete and adequate at law. For

26 id. 761.- Ed.] the breach of such covenants and agreements the rem- [Decided May, 1883.] edy is an action of covenant where the instrument is under seal, and where it is not, assumpsit. Parsons LIFE-CONDITION AS TO LIABILITY-ASSESSMENTS.on Part. 285, note a; Collyer on Part. (Perk. ed.) $ 245. Where a clause of a policy issued by a mutual insurSee also Doyle v. Bailey, 75 Ill. 418; Story's Eq. Jur., ance company provided that the only action maintain$ 294. Werden v. Graham. Opiniou by Scholfield, J. able on the policy should be to compel the association JUDICIAL SALE-SETTING

to levy the assessments agreed upon, and that if a

ASIDE FOR FRAUD-REDEMPTION.–Land was sold on execution at a grossly only be liable for the sum collected, held, that the pro

levy were ordered by the court the association should inadequate price, and bid in by one who was the fam

vision was valid, and that the only mode of enforcing ily physician of the debtor, and regarded as an intimate friend and adviser, the debtor being an aged il

the policy in the first instance was by proceedings in

chancery. Lueders' Ex'r v. Hartford L.& A. Ins. Co., literate person, almost wholly ignorant of his legal

12 Fed. Rep. 465, distinguished. It is not held that rights. The purchaser promised to give the debtor all

there may not be cases where resort can be had to a the time he wanted to redeem, telling him he had fif.

common-law remedy under contracts like that in teen months in which to redeem, and by artifice and misrepresentation lulled him into a sense of security

question, but it is held, as expressed on demurrer in

this case, that the clause in the contract as to the mode until the time of redemption had passed, with the knowledge and participation of the assignee of the cer

of ascertaining the rights of the parties is obligatory

(18 Fed. Rep. 14), with the possible exceptions sugtificate of purchase, to whom a sheriff's deed was

gested. Cir. Ct., E. D. Mo., Dec., 1883. Eggleston v. made. It was held that the debtor, under these cir

Centennial, etc. Opinion by Treat, J. (19 Fed. Rep. cumstances, was entitled, on bill in equity, to redeem

201.) from the sale, and have the sheriff's deed set aside as a cloud on his title. Palmer v. Douglass. Opinion by


NAL POLICY.-A policy of insurance was taken out on a MUNICIPAL CORPORATION-LIABILITY FOR DEFECT- mill and machinery for “one year, from June 10, 1877, IVE SIDEWALK-NOTICE.-A city had notice of a hole in to June 10, 1878;' on June 13, 1878, application was a sidewalk near a railroad crossing, and neglected to made for renewal, and on June 19, 1878, a renewal was repair the same within a reasonable time. A person in issued “for one year, from June 10, 1878, to June 10, passing over such walk, exercising due care, stepped 1879.” On June 16, 1879, the mill and contents burned, into the hole, whereby he was unavoidably thrown upon and the insurance money was sought to be recovered the railway track before an approaching train of cars, under the claim that the renewal extended for a year and in attempting to get up his clothes caught upon a from the date of its issue. Held, that the policy and spike or nail in the sidewalk, and he was struck by the renewal expired before the fire, and that neither was train before he was able to extricate himself, and killed. in force at the time of the fire. It is contended that Held, the city was liable in damages under the statute the renewal should be construed as though it had read to the personal representatives of the deceased for

that it should be continued in force for the term of causing his death. City of Chicago v. Schmidt. Opinion one year from the date thereof; and to enforce this by Mulkey, J. (See 7 Am. Rep. 39, 43 n. ; 39 id. 79, 98.

claim it is insisted that the defendant was not bound -ED.)

until the renewal receipt was in fact issued. The difficulty with this contention is that it calls upon the

court to make an agreement for the parties, instead of INSURANCE LAW.

construing the agreement which they made for them.

selves. This is not the province of this court. RedLIFE-WAGER-FRAUDULENT ASSIGNEE CANNOT RE

mon v. Phønix Ins. Co., 59 Wis. 302, 303; 8 N. W. COVER.—Where the assiguee of a policy of life insur

Rep. 226. If it is true, as claimed, that the plaintiff ance took the assignment, knowing that the policy bad

had no contract of insurance binding upon the combeen taken out for speculative purposes by per

pany during the first nine days of the year stipulated sons having no insurable interest in the life of the as

for, yet that would not authorize the court to extend sured, and brought suit to recover the money paid as

the contract for a period of nine days after the expiraconsideration for the assigament, on the ground that

tion of the year. Bast v. Byrne, 51 Wis. 531; 8 N. W. it was fraudulent. Held, that he was a party to the

Rep. 494. It is a circumstance entitled to weight in fraud, and could not recover. It is settled law that giving a construction if the wording of the contract one who sells a note, bond, or other chose in action

is such as to admit of construction. In Isaacs v. impliedly warrants not only the title thereto, but the

Royal Ins. Co., L. R., 5 Exch. 296, the policy was for

six months, from February 14, 1868, to August 14, 1868, * To appear in 107 Illinois Reports.

but the precise time of neither day was named. Taking the whole policy together, the court held that the very well done-concise, clear and practical. It is a first day was excluded and the last day included. | good guide through the maze of the statutes on this Where the precise time of the commencement and subject, and one that is much needed. end of the term is not definitely fixed there is some room for construction, but even in such case, and where the alleged agreement rested wholly in parol,

MURFREE ON SHERIFFS. the rule contended for has been rejected. Strobu v. Hartford Fire Ins. Co., 37 Wis. 625; Taylor v. Phoenix A Treatise on the Law of Sheriffs and other Ministerial OffIus. Co., 47 id. 365; 2 N. W. Rep. 559, and 3 id. 584. If cers. By William L. Murfree, Sr. St. Louis, Mo.: F. H. in such a case the absence of any definite agreement

Thomas & Co., 1884. Pp. x, 758. as to the duration of the risk renders the contract in- There has long seemed to be a place for a treatise on complete, and hence ineffectual, then certainly the

this topic, and this volume seems to fill it well. Mr. clause in a written agreement definitely fixing the pre- Murfree is a sound writer, and he has here done a very cise duration of the risk should not be rendered nuga-judicious and useful work. His plan and division are tory by mere construction. The application for the excellent, and his treatment is clear and discriminatinsurance was a part of the contract, and properly ad- ing. The text is divided into sections, with headmitted in evidence. Sup. Ct. Wis. Fuchs v. German- lines, and the volume has a good index and tables of town, etc. Opinion by Cassoday, J. (18 N. W. Rep. contents and cases cited. The printing is admira816.)


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COURT OF APPEALS DECISIONS. WILL-GIFT FOR LIFE-SURVIVOR.-A testator gave his real and personal estates to his wife for life, and at HE following decisions were handed down Tuesher decease he gave the same to M. & W. if they were

day, June 10, 1884: both living at the time of her decease, and in case of

Judgment affirmed, and appeal from the order disthe death of either M. or W. before her decease, he

missed without costs to either party in this courtgave the whole unto the survivor of them. Both M. James M. Smith, receiver, etc., respondent, v. Henry and W. died in the life-time of tbe testator's wife. M. Platt, executor, etc., appellant. -Order affirmed Held, that the gift to the survivor of M. and W. re

with costs-George Whitney et al., appellants, v. State, ferred to a survivorship of the testator's wife, and that respondent. —-Judgmeut affirmed with costs-Lucius neither M. nor W. had acquired a vested interest.

B. Warner, assignee, etc., appellant, v. Edward S. Jaf. White v. Baker, 2 L. T Rep. (N. S.)583, distinguished. fray et al., respondents. Judgment affirmed with Ch. Div., Apr. 12, 1884. Matter of Hill and Chapman. costs--Nathan Pakalinsky, respondent, v. N. Y. C Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 204.)

& H. R. R. Co., appellant.-Judgment affirmed with BILL OF EXCHANGE-POWER OF DIRECTORS-PER

costs—Catharine E. Dodge, an infant, respondent, v. SONAL LIABILITY.—The defendants, being two direct- with costs—People ex rel. Timothy McDonough, appel

Frederick M. St.John, appellant.--Judgment affirmed ors and secretary of a company, having no power to

lant, v. Board of Managers of Buffalo Asylum for the accept bills, accepted a bill of exchange in their own

Insane, respondent.- -Order of General Term revers. names on behalf of the company, as a recognition of a debt of the company to the drawer. The defendants ing the judgment and granting a new trial rerersed,

and the judgment entered upon the verdict affirmed told the drawer not to negotiate the bill, but took no

with costs of the appeal to the General Term and to other steps to restrain its negotiation. The drawer,

this court-Martin L. Ehrgott, appellant and respondnotwithstanding this prohibition, obtained discount of the bill from the plaintiffs, who sued as indorsees. ent, v. Mayor, etc., of New York, respondents and apHeld, that the defendants were personally liable on

pellants. Judgment affirmed with costs-John

Harris v. David Van Wart, assignee, etc., appellant, and the bill. They made a false representation by impli

Aaron Healy, respondent. — Judgment reversed, new catiou on the face of a negotiable instrument which the plaintiffs are entitled to have made good, and that

trial granted, costs to abide the event-Samuel P. the defendants by this false representation are bound

Knapp, appellant, v. Ulrich Simon, impleaded, etc., as between themselves and an indorsee for value with respondents.-Judgment affirmed with costs-Chas. out notice. Beattie v. Lord Ebury, 7 Ch. App. 777; 3

E. Patterson, receiver, etc., appellant, v. Daniel RobinEng Rep. 625; 7 H. L. 102; 9 Eng. Rep. 64, is no au

son et al., respondents. -Motion to amend remittitur thority upon this subject, for it was simply a question L. E. & W. Ry. and nine other cases.

denied without costs-Henry A. Valable v. New York, of the construction of a document. Q. B. Div., Dec., 1883. West London, etc., v. Kitson. Opinion by Day and Smith, JJ. (50 L. T. Rep. (N. S.] 208.) [See 14 Eng. Rep. 237; 30 id. 666. -ED.]



The American Law Register for May contains a leadNEW BOOKS AND NEW EDITIONS. ing article by Benjamin F. Rex, on Liability of Tele

graph Companies, and the following cases : Rintoul v. SOUTHWORTH & JONES ON MANUFACTURING CORPO- New York Cent.. etc., R. Co. (U. S. Cir.), on carrier's

stipulation that he shall have benefit of shipper's inA Treatise on the New York Manufacturiug Corporation Act

surance even against carrier's negligence, with note by of 1848 and Business Corporation Act of 1875, together

Arthur Bidell; Rouede v. Mayor, etc. (U. S. Circ.), on with said acts, as amended, extended and modified to rights of bona fide purchase of irregular municipal March, 1884, with Forms and By-Laws. By Edwin W. bonds, with note by Adelbert Hamilton; Hersheiser v. Southworth and Dwight A. Jores. New York: Baker, Florence (Ohio), on note of wife as surety for husband, Voorhis & Co., 1884. Pp. xx, 308.

with note by John F. Kelly; Goodnou v. Empire This subject is of very important local interest, and Lumber Co. (Minn.), on disaffirmance of minor's deed, deserves a mauual like the present. The work seems with note by M. D. Ewell.



isting law. With Mr. David Dudley Field's New The Albany Law Journal.

York Code before the world the best lexicon of

legal definitions and of the outline of jurisprudence ALBANY, Juve 21, 1884.

which was ever written the practicability of con

densing the law of the land into clear, concise rules, CURRENT TOPICS.

making one volume of moderate size, is no longer

an open question. It is just as futile now for the ПНЕ

army of

which they Reinecke and Mr. C. B. Seymour, both strongly derided the folly of Christopher Columbus, after the

would have been for the junta at Salamanca to have urging general codification. Mr. Reinecke has heretofore made the ablest plea on this side of the

prow of his caravel had touched the shore of San

Salvador. subject that we have ever seen, and some extracts

The responsibility, the solemn duty from which we gave in 28 Alb. Law Jour. 38. Mr.

of originating this greatest of all law Reinecke now says, among other things: “Leaving

forms rests with the legal profession. If the

know it, out of view entirely the vast bulk of statutory law, people knew, the necessity as there are 5,500 volumes of reported decisions in the they would force from us this inestimable gift. English language in which we are expected to seek

But they do not, and we may as well win the common law. They are increasing at the rate

ourselves the credit of having given it to them with

out coercion. For more than two centuries, to the of 100 volumes, annually. By a legal fiction which under existing circumstances is almost a mockery, top-story in the first quadrangle of All Souls' Colall the people are presumed to know the law.

At lege at Oxford a great sun-dial has been affixed, least, the duty is imposed upon them at their peril

, bearing upon it in large golden letters the words: to obey its commands, although they neither know

Pereunt et imputantur, referring to the fleeting hours them nor can know them. Must it not — slowly marked by the large pointers below. Time passes, perhaps, but surely – destroy in the hearts of the

and it goes down, too, against our account.” people that confidence and hearty acquiescence upon which all law and all order rests, to have withheld Mr. Seymour said: “The one real objection to from them the means of knowing their rights and codification is that it will limit the legislative pow. their duties? No one will be bold enough to deny that ers of the courts. By a singular fiction the courts, it is their good right to know the law. But is that from time immemorial, have pretended that they vast library of 5,500 volumes of decisions accessible simply declared the law, and did not make the law; to them ? And if it were, could they find the law yet we all know that this pretense is a mere fictionin them? Suppose then that they despair of the as much a fiction as the losing and finding in trover, task (as they surely will if they try it) and that they and the lease, entry and ouster in ejectment. The call to their aid the best legal advice which money,

effect of this fiction has been to obscure the boundliberally bestowed, can buy. Can the lawyers, aries of the legislative function of the courts. In without wading through all these reports, do more times when Parliaments were seldom called together than guess at the law? We should be insincere if the bulk of legislative work had to be done by the we failed to confess that the best legal marksmen courts; in these times when legislatures meet occasionally make very wild shots. And even if biennially, the legislative powers of the courts ought we have guessed with such apparent safety that we to be reduced to a minimum. Judicial legislation felt secure in advising a client unhesitatingly to act is always the making of a rule to apply to an act upon our conclusions, when he has acted upon our already done. Such has been its character from the advice and got into trouble and relies upon us to time of the famous case of Zelophehad's daughters in get him out and our case comes to trial, we may the Pentateuch, XXXVI, Num. 6-12, unto this find to our dismay a lawmaker in the place of the present. The boasted element of elasticity is judge upon the bench, who, creating a new rule, simply uncertainty. Every settled doctrine of the which until then had no existence, applies it to a law ought to be incorporated into a statute, so as to transaction entered into upon the faith of the law be put out of the reach of the courts as far as posas theretofore expounded. But he could not do it sible. Judicial discretion has been of service, and if the old rule was written down in a statute, instead yet discretion has in it a strong element of do-asof an opinion.

It is paradoxical you-please. This objection to codification seems to to call that rule of conduct which me its strongest recommendation.

The is not certain or which is unknown. Unless it question of practicability resolves itself into a is already written down in a statute or in the re- question as to the patience, attention, care and ports, the law does not exist at all, although we all thought of the codifiers. In order that a code may know to our cost how it is sometimes evolved from be produced that is worth baving, the Legislature the inner consciousness of the court, and how the and the codifiers must possess a large amount of non-existing law becomes a cudgel with which ex- that greatest of political virtues — self control; and isting rights are beaten over the head.

this virtue is unfortunately a rare one." Mr. Sey. It is too late in the day to doubt sincerely the mour then particularly urges immediate codification possibility of making a code of the body of the ex- of the criminal law and the law of coverture. In

VOL. 29 No. 25.







Times says:


respect to the latter he says: “It is safe to say that of whose appearance in court we gave some account, no lawyer in this State to-day knows what is the ante, 221. It seems that she has been “wearying " Kentucky law as to married women's separate the judges with the scriptural result. The Law estate. The amount of litigation produced by the

“ The evils arising from suitors appearuncertainty is not edifying. The recent tendency ing in the courts in person have been illustrated by of decisions is to in the uncertainty. Prob- Mrs. Weldon, who will very soon become an intolably the result cannot be avoided by any care of the crable nuisance and a very costly intruder upon the courts, if the labor of making laws on this subject time of the judges. She has found out that an atis to be thrust upon the courts; and indeed it must tractive woman, appearing as her own advocate, will not be forgotten that a precedent so far as it is au- be allowed to say and do many things which no one thority at all is a law, differing from other laws in- else could do or say with impunity. Consequently deed in being the work of courts and in being ar- she is proceeding to abuse the license allowed her, rived at through a competition of conflicting analo- and if a judge sums up in a way she does not like

she condemns him as a nasty man; and if another

judge wishes to keep her to the point she denounces In the very excellent and thoughtful preface to him as prejudiced, and threatens to go to the Court Mr. Henry Reed's new treatise on the Statute of of Appeal. She is also, we regret to say, leading Frauds, the author speaks of the necessity of reduc-judges into wrong decisions. Justices Cave and ing precedents to some concise expression. Although Smith restored some parts of a statement of claim he speaks of the construction of a statute, yet what which had been struck out by a master and a judge, he says is still more applicable to the unwritten law, which were as objectionable, from a pleading point for if what is written gives rise to so much construc- of view, as they could possibly be. They set up the tion, how much more that which is unwritten or ex- motives for a trespass; suggesting aggravation of isting only in scattered and conflicting authorities! damages. This, we suppose, is on the same lines as Mr. Reed says of the growing necessity for carefully allowing an allegation of seduction in a claim for considered text-books: “If the 'lawless science of breach of promise of marriage (Millington v. Loring), our law' is ever to be made single and homogeneous,

a decision we always considered erroneous.” if the 'myriad code of precedent'is to be reduced to a system, it must be done through some such pre

The recent death of Noah Haynes Swayne, a jusliminary process. The number of decisions, and the tice of the United States Supreme Court from 1862 physical difficulty alone of using them, as we are in to 1881, at the age of eighty-four years, brings into the habit of doing, must at last bring about the respectful remembrance an able and faithful public adoption of a plan radically different from that in servant, who participated in the decisions of that use. The contradictory, subtle and yet practically tribunal during the most important period of its hisimportant subject of the Statute of Frauds gives as tory, and has left the impress of a calm and clear good a fleld for experiment as perhaps could be judgment and full legal learning upon the Federal found; and if the present work has been written as jurisprudence. We call attention to a beautiful it should be, it will show how and where the courts tribute to his memory, in another column. when unfettered by authority, and under any circumstances the Legislature can formulate such rules,

The resignation of Judge Erskine, of Georgia, that the only real occupation for a judicial tribunal

from the Federal bench is the subject of regret will be the ascertaining of facts in the particular among the people of his jurisdiction. The bar controversy. The writer has no hesitation in saying of Atlanta have caused his portrait to be painted that if skill and care are employed a statute can be and placed in the Federal court room, and on its drawn which can set at rest three-fourths of the presentation recorded their testimony that hewas “a questions of law connected with the Statute of judge who, by a fair interpretation and just enforceFrauds; and as the trials of questions of fact will

ment of the laws of the United States, did much to not be reported to be a later source of perplexity, make hearts once estranged feel a new love for the the mass of precedents may be kept within a reason- National government; a judge who, in his dealings able compass.” This is an excellent answer to those

and intercourse with the bar, was always kind, acwho oppose general codification on the ground commodating and considerate of their feelings and that statutes give rise to so much discussion. Our wishes; a judge who, in times of temptation, when late Legislature enacted a law that married women

the honesty of others was questioned and charges may contract as if single. This is so far a codifica- were rife against them, passed among his fellow men tion. We do not know that there can be any objec-without reproach, unchallenged, for what he was, tion to it. And yet if the arguments against codi

an honest man, a good citizen, respected and befication are sound, we should be forced to believe loved, and a judge able, intelligent, learned, laborithat this act is only to be tolerated because it is in ous, upright and impartial.” There is probably no the statute book and not in a code.

class of public servants in this country who do more work for such meagre pay, and are generally so little

thanked, as the judges of the Federal Circuit and The lawyers who are jealous of women in court District Courts. It is quite refreshing to find one will find some comfort in the case of Mrs. Weldon, appreciated.



claimed the goods generally, by virtue of his pur

chase from Benn and Smith, and had not distinN Atwater v. Mayor, etc., New Jersey Chancery guished as between the general stock and these

Court, March 19, 1884, 7 N. J. L. Jour. 176, it specific articles he could not recover for them, unwas held that a public market held in the street lese he recovered the whole, and if the jury should may constitute a nuisance to an adjoining land find that the sale by C. H. Benn to his brother and owner, and may be enjoined, although authorized sister was fraudulent, their verdict should be for the by ordinance. The fact of the nuisance was admit- defendant in the replevin. The court affirmed this ted in argument, and the chancellor granted a pre- view of the law, and the defendant had a verdict. liminary injunction. The Journal accompanies the Day, Pennewvill and Wolcott for plaintiff. J. A. case with a note stating that this is the first case Fulton for defendant. directly involving this question in that State, and citing Knox v. Mayor, 55 Barb. 404; Wartman v. Philadelphia, 33 Penn. St. 202; Com. v. Wentworth,

In City of Wellington v. Gregson, 31 Kans. 99, it Bright, 318; Rex v. Russel, 6 East, 427; Wilkes v.

was held that a city is not, as matter of law, liable Hungerford Market; Sattermole v. Mayor, etc., 15

for an injury caused by the upsetting of a carriage Fla. 206. In Henkel v. City of Detroit, 49 Mich. 249; by running against a post set at the corner of two S. C., 43 Am. Rep. 464, it was held that a city hav

streets to protect a shade-tree. The court said: ing established a public market in a portion of a

" The existence of a post or other object large public street duly condemned for that purpose, no

enough to upset a buggy or wagon running over it action can be maintained against the city for injury within a carriage-width of a traveled track is not to his adjoining property by the incidental obstruc- necessarily, and as a matter of law, such an obstruction of the street by the collecting of wagons in the

tion as renders the city liable for injuries occasioned neighborhood, and the selling of produce there

thereby. It may or may not be such an obstruction, from, where the same is under police regulation. depending upon a variety of circumstances, and orSee also note, 43 Am. Rep. 473.

dinarily, whether it is or not, is a question of fact to be determined by the jury. In other words, the

the city is not bound, as matter of law, to keep not In Miller v. Lacey, Superior Court of Delaware, only the traveled track in good and safe condition, April Term, 1884, at Dover, decided a point of con- but also to keep a space of a carriage-width on each siderable practical utility and importance, both to side of such traveled track free from posts, stones parties and officers having execution process in or other objects large enough to upset a buggy or hand, as to the duty of a claimant of goods levied wagon running over them. And yet that is subon by the sheriff as the property of the defendant stantially what the court instructed the jury. in the execution, but really not belonging to him. It is unquestionably the duty of the city In the exact form in which it was put it is novel as to keep its streets in a reasonably safe well as important. Brewers' Sons placed an execu- dition for travel in the ordinary modes. tion in the hands of Lacey, sheriff, against a certain In the discharge of this duty in places it must keep C. H. Benn. When the sheriff called at Benn's the whole width of the street in a safe condition for store he was informed that (. H. Benn had sold out travel. Bryant v. Biddlefield, 39 Me. 193. In other his stock of goods to George W. Benn and Rebecca places it is sufficient if it keep a travelled track in A. Smith, the brother and sister of C. H. Benn, and good repair. Hull v. Richmond, 2 Woodb. & M. their agent was then in possession. The sheriff 337; Ireland v. Plank Road Co., 13 N. Y. 526; Basmade a levy, but did not remove the goods or close sett v. St. Joseph, 53 Mo. 290; S. C., 14 Am. Rep. the store. Two weeks later, being indemnified by 446; Broun v. Glasgow, 57 Mo. 157. Whether in the plaintiffs in the execution, he went back and any given case the public needs are such as to reclosed the store, and afterward sold the goods. Atquire the whole width of the street to be kept in the time he closed the store he found Miller, the safe condition, is generally a question of fact for the plaintiff in the suit, in possession. Miller claimed jury. * * * It is a familiar fact that in all our as a bona fide purchaser from G. W. Benn and Re- cities lot owners are accustomed to plant shade trees becca A. Smith, the purchasers from C. H. Benn. in front of their lots. Many streets are thus rendered At this time there were in the store a stove, clock, beautiful by the long rows on either side. Especimoney drawer and a half dozen chairs, which Miller ally is this true in the residence portion of the city. had purchased from other persons, and which never Sometimes these trees are in the sidewalk, but more had belonged to C. H. Benn, but Miller did not often just outside the sidewalk, in the street proper. make any specific claim of these, but claimed the Often, especially when the trees are young, they are contents of the store as a whole. After the sale of inclosed with boxes or railings, to prevent their inthe store by the sheriff, Miller brought replevin for jury by straying cattle or passing teams. Can it be the goods, including the above-named specific arti- that permitting these things is per se negligence on cles. For the sheriff defendant it was urged that the part of the city; that every time a buggy runs although Benn never owned the stove, clock and against one of these trees or its protection the city money drawer, and they undoubtedly belonged to is liable for all injuries, unless the driver was also Miller, the plaintiff in the replevin, yet, as he had negligent? Cannot a party put a hitching-post in



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