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lation, but at the same time they are intended to sub- LIEN OF ATTORNEY FOR COSTS WHEN ACTION serve the public good. The travel on them bears no

COMPROMISED. analogy to our notions of travel on an ordinary street or highway where every one travels at his pleasure in ENGLISH COURT OF APPEAL, JUNE 7, 1883. his own conveyance without paying tolls or fares. The uses are totally different and even inconsistent. The

THE HOPE, 49 L, T. Rep. (N. S.) 158. one is exclusively in favor of private interests and the other is open and free to all. The doctrine most in

In a seaman's wages action, where the defendants effect a

settlement behind the back of the plaintiff's solicitor, and consonance with our sense of justice is, when the fee

the plaintiffs fail to pay their solicitor's costs, the of the street remains in the abutting land owner, the

solicitor cannot obtain an order that the defendants should corporation may grant the right to the railway com

pay his costs, unless he show clearly that in making the pany to lay its track along or across any street, but the compromise there has been collusion between the parties company avails of its privilege at its peril. If in lay- with the intention of depriving him of his lien, ing its track it causes a private injury to him who

HIS was an appeal from an order of Sir Robert owns the fee in the adjoining premises, it must make

Phillimore, made in chambers, in an action for good the damages sustained." The doctrine of this

seamen's wages and damages for wrongful dismissal, case has since been embodied in the text by Mr. Dil

by which he ordered that the defendants should pay lon, in the recent edition of his valuable work on

the taxed costs of the action to the plaintiff's solicimunicipal law, in a distinct section, and the author

tors. says it has for its support the sanction of some of the

The action was commenced on the 17th of January, most eminent jurists in this country. At all events it

1883, in the Liverpool district registry, by the plaintiffs, is now the settled law of this State, and it is now too,

two seamen, against the owners of the ship Hope, and late to insist a different rule should be adopted. The

on the 19th the defendant's solicitors gave an underprinciple of Harlley's case is conclusive of the one

taking to appear. On the 22d the plaiutiffs accepted being considered. What is there said respecting the

51. each from the defendants in settlement of their right of a railway to the use of a common highway,

claim and costs, and thereupon left the country withapplies with equal force to a telegraph corporation. In

out paying their solicitors their costs. The plaintiff's the same sense the construction of a line of telegraph

solicitors then made an application to the district on the highway is an additional servitude, to which

registrar at Liverpool for an order that the defendants the fee of the land had not before been subjected. The

should pay their taxed costs, alleging that the settleservitude differs more in degree than in character, and

ment had been made behind their backs," whether the damages are great or small, the corpora

The Liverpool registrar referred this application to tion asking for or appropriating to itself the benefit of

Sir Robert Phillimore, who ordered that the defend. such new servitude must make just compensation to

ants should pay the taxed costs of the plaintiff's sothe owner of the fee. In many and perhaps in most

licitors. instances the damages may be merely nominal, but in

From this order the defendants appealed. others an actual detriment may be occasioned. That

BRETT, M. R. We have some difficulty in dealing of course is a question to be determined from the evi.

with this case, seeing that it was taken by Sir Robert dence in each particular case, with which this court

Phillimore in chambers, where the learned judge had has no concern.

not the advantage of having the authorities on the The decision of the trial court in sustaining the de

point cited to him. I do not think we can differ murer to the special pleas of justification is warranted

from the judge merely on the ground that he took a by the law, and as its finding as to the damages sus

wrong view of the evidence. We differ from him in tained by plaintiff has been affirmed by the Appellate

that he decided this case on wrong legal principles in Court, it is of course conclusive on this court, and the

holding, that if a compromise is made between the judgment of the latter court will be affirmed.

parties to the cause without the knowledge and acJudgment affirmed.

quiescence of the plaintiff's solicitors, the defendants NOTE. See also in reference to the subject, Thomp- should pay the plaintiff's solicitor's taxed costs. There son v. Hodgson, 2 Hun, 146; Barney v. Keokuk, 94 U. is strong evidence to show that the compromise was S. 324; Murphy v. Chicago, 29 III. 279; City of Quincy made without the knowledge or acquiescence of the v. Jones, 76 id. 231; Edwardsville R. Co. v. Sawyer, 92 plaintiff's solicitors, and that the defendants knew id. 317; Milburn v. Cedar Rapids, 12 Iowa, 247; Clinton that the plaintiffs had employed solicitors. The cases v. Cedar Rapids and Missouri R. Co., 24 id. 455; Tom- which have been cited to us show that the mere fact lin v. Debuque R. Co., 32 id. 106; Cook v. Burlington, id. that a compromise has been effected without the 357 ; Ingraham v. Chicago, etc., R. Co., 38 id. 669; West- knowledge of the solicitor is not sufficient; but that ern Un. Tel. Co. v. Rich, 15 Kan. 517; Prather v. Rail- it must be further shown clearly that there was the road Co., 52 Ind. 40; Gebhard v. Reeves, 75 III. 301; intention in the minds of both of the parties to deTown of Oldtown v. Dooley, 81 id. 255; Pfeifer v. Coe, prive the plaintiff's solicitors of their lien for costs. It 8 Am. Rep. 58; Cote v. Drew, id. 363; Williams v. seems to me that in this case there is absolutely no New York Central R. Co., 16 N. Y. 97; Wager v. Troy evidence of such collusion, or that it was in the minds Union R, Co., 25 id. 526; Craig v. Rochester City R. Co., of the defendants to deprive the plaintiff's solicitors 39 id. 404; Schurmeier v. St. Paul and F. R. Co., 10 of the fruits of what they had done. We are asked to Minn. 82; Brisbane v. St. Paul and L. C. R. Co., 23 id. say that that is the necessary inference to be drawn 114; Lafayette M. and B. R. Co. v. Mindoch, 68 Ind. from a settlement of this kind having been made by 137; Ford v. Chicago and Northw. R. Co., 14 Wis. 609; sailors with ship-owners. But there is no rule of law Blesch v. Chicugo and Northw. R. Co., 43 id. 183; Cape that sailors are to be presumed to be cheats, nor is Girardeau, etc., R. Co. v. Renfro, 58 Mo. 265; Moses v. there any evidence at all as to that. This case thereRailway Co., 21 Ill. 517; Roberts v. Chicago, 26 id. 249; fore has not been brought within the rule laid down in Jersey City and B. R. Co. v. Jersey City and H. Co., the cases which have been cited, and this appeal must 20 N. J. Eq. 69; Hinchman v. Patterson, 17 id. 76; Rail- therefore be allowed. road Co. v. Heisel, 38 Mich. 66; Attorney-General v. LINDLEY, L. J. I also think that this order must be Metropolitan R. Co., 125 Mass. 515; 2 Dill. Mun. Corp., discharged. I do not think that there is any difference $ 722; Pedicord v. Balt., etc., R. Co., 34 Md. 479; Hiss in the principles to be applied to cases in the Admiralty v. Baltimore and Hamp. R. Co., 52 id. 252; Regney v. Division, and to those in any other divisions of the Chicago, 102 111, 64.

High Court. It seems to me that there is not any rule

or practice which prevents parties effecting a com- The Hine v. Trevor, 4 Wall. 555, and The Eagle, 8 id. promise without the intervention of their solicitors. 15, the court has no doubt of the jurisdiction of the Therefore a litigant who employs a solicitor in the or- District Court in this case. Navigable water situadinary way can compromise the action; but this ted as this canal is, used for the purposes for principle or rule has been engrafted upon that, namely, which it is used, a highway for commerce bethat the compromise must be honestly effected and not tween ports and places in different States, carried for the purpose of cheating the solicitors. The gen- on by vessels such as those in question here, is public eral rule is correctly stated in Archbold's Practice water of the United States, and within the legitimate 13th ed., pp. 142, 143), where after referring to the scope of the admiralty jurisdiction conferred by the Solieitor's Act of 1860, 23 and 24 Vict., ch. 127, § 28, Constitution and statutes of the United States, even which enables the court to make a charging order up- though the canal is wholly artificial, and is wholly on property recovered or preserved through the in- within the body of a State, and subject to its ownerstrumentality of the solicitor, it is stated that “a so- ship and control; and it makes no difference as to the leitor has also, it is said, a lien for his costs upon a jurisdiction of the District Court that one or the judgment recovered by his client, or upon money or other of the vessels was at the time of the collision on costs awarded or ordered to be paid to him in a cause a voyage from one place in the State of Illinois to in wbich the solicitor was employed; and this even another place in that State. The Belfast, Wall. 624. though the client had previously become a bankrupt. Many of the embarrassments connected with the quesThis lien however is in truth} merely a claim to the tion of the extent of the jurisdiction of the admiralty equitable interference of the court." Then it runs on disappeared when this court held in the case of The thus, which I think is right, "the court will exercise Eagle, supra, that all of the provisions of section 9 of this equitable interference when the solicitor has the Judiciary Act of September 24, 1789, ch. 20 (1 St. given the opposite party or his solicitor notice of his 77), which conferred admiralty and maritime jurisdiclien, and that he claims the amount payable to his tion upon the District Courts were inoperative, except client to be paid to him in the first instance; in which the simple clause giving to them “ exclusive origival case the opposite party will at bis peril pay the client cognizance of all civil causes of admiralty and marior release the claim, or compromise it without the time jurisdiction.” That decision is carried out by assent of the solicitor. So the court will exercise it, the en actment in section 563 of the Revised Statutes, though no such notice has been given, in cases where subdivision 8, that the District Courts shall have jurit is clearly made out that there bas been some collu- isdiction of "all civil causes of admiralty and marision or fraudulent conspiracy between the parties to time jurisdiction,” thus leaving out the inoperative cheat the solicitor of his costs. But unless such notice provisions. Matter of Boyer. Opinion by Blatchbe given, or there has been such collusion or fraudu- ford, J. lent conspiracy, the client, although he sues [Decided Jan. 7, 1884.] in forma pauperis, may compromise with

BANK-REPRESENTATIVE AUTHORITY OF CASHIERthe other party and give him a release without the intervention of his solicitor.” In support corporation, whose charter does not otherwise provide,

PRESUMPTION FROM COURSE OF DEALING.-A banking of every one of those propositions a number of authorities are therein cited. Here there is no evidence

may be represented by its cashier in transactions outthat it was the intention of the parties to defeat the

side of his ordinary duties, without his authority to plaintiff's solicitors of their lien for costs, and we can

do so being in writing, or appearing in the records of

the proceedings of the directors. His authority may not presume that sailors are cheats.

be by parol and collected from circumstances or imFry, L. J. It appears to me that the law which

plied from the conduct or acquiescence of the directgoverns this case was correctly laid down by Tindal,

ors. It may be inferred from the general manner in C. J. in Nelson v. Wilson, 6 Bingh. 568, when he says that "it is undoubtedly competent for the party to

which, for a period sufficiently long to establish a setsettle the case without the intervention of his attorney;

tled course of business, he has been suffered by the

directors, without interference or inquiry, to conduct and if the attorney proceeds in order to secure his

the affairs of the bank. When during a series of years, costs, he is bound to make out a clear case of fraud between the plaintiff and defendant to deprive him of

or in numerous business transactions, he has been such costs.” In my opinion the plaintiffs have

permitted, in his official capacity, and without objecfailed to establish such a clear case of fraud in this

tion, to pursue a particular course of conduct, it may case. I therefore think the order was wrong, and this

be presumed, as between the bank and those who in

good faith deal with it upon the basis of his authority appeal must be allowed.

to represent the corporation, that he has acted in conAppeal allowed.

formity with instructions received from those who

have the right to control its operations. That which UNITED STATES SUPREME COURT AB- directors ought, by proper diligence, to have known STRACT.

as to the general course of the bank's business, they

may be presumed to have known in any contest beADMIRALTY-HAS JURISDICTION OF COLLISION BY

tween the corporation and those who are justified by CANAL BOAT ON CANAL.–The District Court of the

the circumstances in dealing with it upon the basis of

that course of business. Martin v. Webb. Opinion by United States for the Northern District of Illinois, as

Harlan, J. a Court of Admiralty, has jurisdiction of a suit in rem against a steam canal-boat, to recover damages caused

[Decided Jan. 7, 1884.] by a collision betweeu her and another caval-boát, CONSTITUTIONAL LAW- POWER OF EMINENT DOwhile the two boats were navigating the Illinois and MAIN OF GOVERNMENT MAY BE EXERCISED THROUGH Lake Michigan Canal, at a point about four miles from STATES-UNITED STATES PARTY TO SUIT.-(1) The its Chicago end, and within the body of Cook county, power of eminent domain possessed by the general Illinois, although the libellant's boat was bound from government can be exercised through the State gov. one place in Illinois to another place in Illinois. ernments. Consequently the provision of the act of Within the principles laid down by this court in The Congress of March 3, 1875, in relation to the improve. Daniel Ball, 10 Wall. 557, and The Montello, 20 id. 430, ment of the Fox and Wisconsin rivers, that when which extended the salutary views of admiralty juris- land should be appropriated overflowed, or injured in diction applied in The Genesee Chief, 12 How. 443; | making such improvement, the damages should be as

certained in the mode provided by the laws of the wagons, and proceeding to sell them was an acceptState where the same was situated is valid, and the ance of them pro tanto in payment of the claim; tbat State tribunals might entertain proceedings there- the contract for the payment in wagons was unfulunder. The power to take private property for pub- filled as to the four wagous not delivered; and that lic uses, generally termed the right of eminent do- the price for which the nineteen wagons were sold, and main, belongs to every independent government. It the selling value of the two not sold, bad no bearing on is an incident of sovereignty, and as said in Boom v. the case, unless there was a surplus of the proceeds of Patterson, 98 U. S. 406, requires no constitutional re- sale to be refunded to the debtor, under the contract. cognition. The provision found in the fifth amend- Winchester and Partridge Manufacturing Co.v. Funge. ment to the Federal Constitution, and in the Consti- Opinion by Blatchford, J. tutions of the several States, for just compensation for [Decided Jan. 7, 1884.] the property taken, is merely a limitation upon the use of the powers. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in

PENNSYLVANIA SUPREME COURT the general government-its right of eminent domain,

ABSTRACT. which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the FIXTURES-REFUSAL TO PERMIT FORMER TENANT TO wealth of the country-cannot be transferred to a REMOVE-REPLEVIN.–The refusal of the owner of the State any more than its other sovereign attributes; premises, after he has taken possession thereof, to and that when the use to which the property taken is

permit the former tenants to remove the fixtures, applied is public, the propriety or expediency of the which they have attached to the premises during the appropriation cannot be called in question by any term, will not enable the latter to maintain trover other authority. But there is no reason why the com- against the owner of the freehold. Trover lies for the pensation to be made may not be ascertained by any conversion of goods or personal chattels. It does not appropriate tribunal capable of estimativg the value lie for fixtures eo nomine. 1 Chit. Plead. 146. Title of the property. There is nothing in the nature of the to land cannot be tried in such action when the plaintmatter to be determined which calls for the establish

iff is not in possession. It does not lie for property ment of any special tribunal by the appropriating severed from the realty, against one who has an actual power. Whether the tribunal shall be created directly adverse possession under claim of title. Mather v. by an act of Congress, or one already established by Trinity Church, 3 S. & R. 509; Brown v. Caldwell, 10 the States shall be adopted for the occasion, is a mere id. 114; Powell v. Smith, 2 Watts, 126. If fixtures matter of legislative discretion. Undoubtedly it was which the tenant might remove during his term be the purpose of the Constitution to establish a general

suffered to remain after its expiration, they become government independent of, and in some respects inseparable from the freehold. They cannot aftersuperior to, that of the State governments-one which ward be recovered by the tenant as personal chattels could enforce its own laws through its own officers and by action of trover against his landlord. White v. tribunals; and this purpose was accomplished. That Arndt, 1 Whar. 91; Overton v. Williston, 7 Casey, 155. government can create all the officers and tribunals

The owner of the freehold, in actual or constructive required for the execution of its powers. Upon this possession, may maintain trover against a tort-feasor, point there can be no question. Kohl v. United

who has no right of possession, but enters only casuStates, 91 U, S. 367. From the time of its establish

ally or temporarily, and severs and removes property ment that government has been in the habit of using, therefrom; yet a tenant, after the expiration of his with the consent of the States, their officers, tribunals, term, cannot maintain such action against his landand institutions as its agents. Their use has not been

lord. Wright v. Guier, 9 Watts, 172; Harlan v. Hardeemed violative of any principle or as in any manner lan, 3 Harris, 507; Clement v. Wright, 4 Wright, 250; derogating from the sovereign authority of the Fed

Brewer v. Fleming, 1 P. F. Smith, 102. Fixtures are eral government; but as a matter of convenience and

not goods and chattels for all purposes. They are not as tending to a great saving of expense. (2) Held also, unless made so by the tenant's severance, or for the that a provision in the act of 1875, that the United

benefit of his execution creditors. While they reStates should be represented in such proceedings by

main attached they are part of the freehold. Minthe department of justice was a waiver of the immu

shall v. Lloyd, 2 M. & W. 450; Mackintosh v. Trotter, nity of the United States from process. United States

3 id. 184. Darrah v. Baird. Opinion by Merour, J. v. Jones. Opinion by Field, J.

[Decided Nov. 20, 1883.] [Decided Dec. 10, 1883.] PAYMENT


-It is true a deed from a husband directly to his wife tling a debt, the debtor gave to the creditor orders for

is a nullity at common law. Under modern legislation twenty-five wagons, and the creditor gave to the

and the application of equitable principles, a wide dedebtor a written receipt, which he accepted, stating parture has been made from the common law in rethat the wagons were to be received in payment of the

spect to the ability of a wife to acquire and hold propclaim, provided they were delivered to the creditor in erty. Her right of acquisition and power of control good condition and merchantable order, and that it is not restricted to property obtained from one not her was understood and agreed that if the wagons were so

husband. When not in fraud of creditors of the husdelivered in good condition they were to be sold for

band, a conveyance from him directly to his wife may the highest prices that conld be obtained for them,

be sustained on equitable principles. Coates v. Gerand the surplus, after paying the debt and cost of

lach, 8 Wr. 43; Townsend v. Maynard, 9 id. 198; Pennselling, should be refunded to the debtor; twenty-one sylvania Co. v. Neel, 4 P. F. S. 9; Rose v. Latshaw, 9 of the wagons were delivered, but none of them were Norris, 238. A husband may not only convey directly in good condition and merchantable order; the credi

to his wife for a valuable consideration, but he may tor sold nineteeu of them and made ineffectual efforts also convey to her as a gift, when not prejudicial to his to sell the other two, and after crediting the net pro

creditors. Thompson v. Allen. Opinion by Mer. ceeds of sale, sued the debtor to recover the balance of

cur, C. J. the debt. Held, that the receiving the twenty-one [Decided March 15, 1883.]

MUNICIPAL CORPORATION – LIABLE FOR NEGLI- the principals to the surety is several; each is liable GENCE AS TO ROAD WITHIN RAILROAD RIGHT OF WAY. for the whole amount. The Court of Errors in review

- A township which permitted a road within the right said: “If the surety is bound for several principals, of way of a railroad company to remain in use, held he is entitled to proceed agaiust each of them for the liable for its dangerous condition causing injury to recovery of the whole of what he has paid. Each of trareller, although it was the statutory duty of the the principals is debtor of the whole debt in favor of railroad company to construct a public road upon the creditor; and the person being surety for each of taking possession of the other road. Township of them has, by paying the debt, liberated each of them Aston y. McClure. Opinion by Mercur, C. J.

from the whole, and consequently has a right to con[Decided Feb. 19, 1883. ]

clude in solido against each of them for the reimburseNEGLIGENCE – JUMPING FROM TRAIN WHEN NOT.

ment of the whole of what he has paid, with interest When a railway train ran off a track from defective

from the day of the demand. This rule prevails both ties, and plaintiff jumped from the train injuring Martin (La.), 588, it was held that where there are

in civil and common law.” In Dickey v. Rogers, 9 himself, held, that it was for the jury to say whether several joint debtors, the surety has the right to call it was a reasonable act of prudence to jump, although those who remained on the train were uninjured.

on each of them for the whole amount of his obligaPittsburgh, Buffalo and Western Ruilroad Co. v. Rohr

tion. In Overton v. Woodson, 17 Mo. 453, it was held man. Opinion by the Court.

that where two executors or administrators unite in

one bond they are jointly and severally liable as prin[Decided Jan. 15, 1883.]

cipals to indemnify the surety who has been subjected to the payment of money by the default of one of

them. In Duncan v. Keiffer, 3 Bin. 126, the court held VERMONT SUPREME COURT ABSTRACT.

to the same doctrine in case of a bond between indiviJANUARY TERM, 1883. *

duals. Having borne the burden of his principals, GIFT- FROM FATHER TO SON — DELIVERY.- The he stands, in many respects, in the place of a creditor, plaintiff and her brother lived with their father on and may proceed against one or all of them for the his farm. The brother, on account of the infirmities whole amount paid.” Baylies Surety, 461. This was of the father, had the whole management of the farm, said upon the authority of a case in 14 Barb. 32, where and provided for the common table of the entire a surety had paid a joint judgment against two prinhousehold. The covered carriage in question was

cipals aud himself. See also Poth. Tr. des Oblig. p. 2,ch. kept, when not in use, in an outhouse on the farm 6, $ 7, art. 1, $ 5; Theo. Pr. & Sur. 169, (ed, of 1836); built by the brother at his own expense. The father Riddle v. Bowman, 27 N. H. 236; Jones v. Fitz, 5 id. called the members of the family into the dining room

444. In West v. Bank, 19 Vt. 403, it was held that if of the house, and in the presence of all gave the car

one sign, or indorse a note as surety for several joint riage to the plaintiff, he requesting all to witness the principals, and one of the principals dies, the surety gift. The defendant took the carriage off, and claimed having paid the debt, may claim a dividend from the that the father afterward gave it to him. Held, that estate upon the entire debt, notwithstanding be may the defendant was not entitled to have the court

hold collateral security for his liability. Devaynes v. charge that the gift was invalid for want of a sufficient Noble, 2 Rus. & Mylne, 495. Clay v. Severance. Opindelivery ; that if there was, under the facts of this ion by Veazey, J. case, a declaration of the gift in plain terms, and a surrender and acceptance of dominion, it was sufficient. MASSACHUSETTS SUPREME JUDICIAL Ross v. Draper, 55 Vt. 503; 1 Parson; Con. 201; 1 Bouv

COURT ABSTRACT. ier, L. D. 633; 2 Kent Com. 439; Martrick v. Linfield,

JUNE, 1883. 21 Pick. 325; Kellogg v. Adams, 51 Wis. 138; S. C., 37 Am. Rep. ; Harris v. Hopkins, 43 Mich. 272; S. C., 38

CONTRACT--FOR ARBITRATION OUSTING COURTS OF Am. Rep. 180. Fletcher v. Fletcher. Opinion by

JURISDICTION VOID.-An agreement between a rail. Veazey, J.

road company and a conductor employed by it, proGIFT-OF INSURANCE MONEY FROM EXEMPT PROP

vided that a deposit should be made by the conductor ERTY TO WIFE-ATTACHMENT-HUSBAND AND WIFE.

with the company as security for the observance by The husband owned a homestead and other property him of its rules and regulations; that in case of a exempt from attachment. It was insured in the name

breach by him of any of said rules and regulations, the of his wife. It burned; and the insurance money,

company might retain the whole of said deposit and with the knowledge and consent of the husband, was

any interest thereon and the amount of wages that paid to her; and she, with his approbation, managed might be due him, as liquidated damages for such and treated it, and the property purchased with it, as

breach; and that the company's president should be ber own. Held, That it was equivalent to a valid gift.

the sole judge between the parties whether the comThat property purchased with the insurance money pany was entitled to retain the whole or any part of was not attachable on the husband's debts; nor prop- said money as liquidated damages, and his certificate erty purchased with the wife's earnings, when he has

to that effect and of the cause of such retention should allowed her to use them as her separate estate; nor the

be a final adjudication thereof, and binding and conincrease of such property, as of cows. And the result

clusive evidence between the parties in any court that is the same though the labor of the husband on the said money had been forfeited to the company. Held, wife's farm may have helped to some extent to pro- that such a stipulation was an agreement to submit to duce the property in contention. Preno v. Hewitt.

arbitration and an attempt to oust courts of justice Opinion by Ross, J.

from all jurisdiction over the whole controversy, and SURETYSHIP-RIGHT OF ACTION AGAINST PRINCI- was void. Wood v. Humphrey, 114 Mass. 185, Pearl v PAL-One having signed a note with two principals, Harris, 121 id. 390; Vass v. Wales, 129 id. 38. White and having been compelled to pay it, may sustain a v. Middlesex Railroad Co. Opinion by Field, J. sereral action against either one of the principals, and

CRIMINAL LAW--CONFESSION-WHEN INADMISSIBLE recover the amount paid. In Apgar v. Hiler, 24 N. J. L. 812, the court below charged the jury that whether

IN EVIDENCE.-The words, “ You had better tell the the original note be joint or several, the liability of truth,” have sometimes been held or said to render a

subsequent confession inadmissible, because they *Appearing in 55 Vermont Reports,

would probably be understood to mean that it would


be better to say something, and that "the truth" in from capture and seizure, and the consequences of any the mind of the speaker implied a confession of guilt. attempt thereat." During the continuance of the policy Queen v. Jarvis, L. R., 1 C. C. 99; Regina v. Fennell, the ship was seized and detained by the Spanish au14 Cox, C. C. 607, But similar words, when not imply- thorities in consequence of the barratrous act of the ing that the speaker expected a confession, but only master in smuggling. Held (affirming the judgment the truth, have been held or said not to render a sub- the court below), that such seizure was covered by sequent confession inadmissible. Queen v. Reeve, L. the warranty, and that the underwriters were not R., 1 C. C. 362; S. C., 12 Cox. C. C. 179; Regina v. Bal- liable. Semble (per Lords Blackburn and Bramwell), dry, 5 id. 529. 0., policeman, had stolen property that there is no rule of insurance law that where barsituated on his beat. Another policeman who was ratry is the remote cause of a loss it is to be looked to watching came up to him and walked with him to the rather than the immediate cause. House of Lords, station. When there the one who was watching ac- April 30, 1883. Cory v. Burr. Opinions by Lord Chancused the other of larceny, and said he had “better cellor Selborne, and Lords Bramwell and Fitzgerald. own up." This was in presence of an officer superior (49 L. T. Rep. [N. S.] 78.) to both. The accused did confess to both him and the

MARITIME LAW-PRIORITY OF PAYMENT-DAMAGE, superior officer. Held, that the confession was inadmissible. Commonwealth of Massachusetts v. Nott.


a damage action, in which a foreign ship proceeded NEGLIGENCE CONTRIBUTORY NEGLIGENCE

agaiust has been sold by order of the court, and the CROSSING RAILROAD TRACK.-The holder of a railroad proceeds brought into court to satisfy the claims ticket to reach a train she intended to take, crossed against her, having no effective remedy except against the track at a place not designed for crossing, and for the ship, are entitled to payment of their claim out of which the company held out no inducement to cross, the proceeds in precedence to the seamen's claim and was injured by a passing engine. There were against such proceeds for wages earned on the ship ample other means of crossing provided. Held, that subsequently to the collision. Ct. of App., May, t, such holder was guilty of contributory negligence pre- 1883. The Elin. Opisions by Brett, M. R., and Cotcluding a recovery for the injury. Wheelwright v. ton, L. J. (49 L. T. Rep. [N. S.] 87.) Boston & Albany Railroad Co. Opinion by Col. burn, J.


CONFLICT OF LAW-LOAN IN ONE STATE GOVERNED AUCTION - SALE OF STANDING CROP -- WARRANTY BY LAWS OF ANOTHER-USURY.- A citizen of another OF TITLE. When an auctioneer sells without disclos- State may contract in this State for the loan of money ing the name of his principal, the character and extent to be used in the State of his residence, and agree to of the contract he enters into with the purchaser de- pay interest therefor, lawful by the laws of the latter pends upon the conditions of sale, upon wbat is said State, although the rate exceeds that allowed by the by the auctioneer at the time, upon the surrounding laws of this State. In such case the contract is not circumstances, and upon the nature of the subject- rendered usurious by the fact that the note is executed matter of the sale. Where an auctioneer sells by in Ohio, if the parties without intending to evade our auction standing corn with the straw, for an unnamed usury laws, contract with reference to the laws of the principal, the price to be paid at once, and the crop to State where the debtor resides. It is not essential to be removed immediately after it has arrived at matu- the validity of such contract as to the interest, that rity, at the purchaser's expense, there is a coutract by the note should be made payable in express terms, in the auctioneer to give the purchaser all proper authority the State where the maker resides. To ascertaiu to enter upon the land, and to cut and carry away the whether the parties intended in good faith to contract corn and straw, but there is no actual warranty of the with reference to the laws of such State, all the cirvalidity of the title of his principal to sell. Q. B. D., cumstances surrounding the transaction will be exJune 19, 1883. Wood v. Baxter. Opinions by Williams amined. Fisher v. Otis, 3 Chandl. 102; Butters v. Old, avd Smith, JJ. (49 L. T. Rep. [N. S.] 45).

11 Iowa, 1; Arnold v. Potter, 52 id. 198; New LEASE BREACH OF NEGATIVE COVENANTS - FOR

Kershaw, 10 Wis. 340; Horsford F. FEITURE UNDERLETTING. A lease contained a

Nichols, 1 Paige Ch. 225; Townsend v. Riley, oovenant by the lessee not to carry on any trade upon

46 N. H. 300; Depau v. Humphreys, 20 Martin (La.) 1; the premises other than that of a wine and spirit

Fanning v. Consequa, 17 Johns. 511; Pratt v. Adams, merchant, and not to assign or underlease the premises 7 Paige, 615; Chapman v. Robertson, 6 id. 627; Richwithout the consent in writing of the lessor. There

ards v. Globe Bank, 12 Wis. 696; Arnold v. Potter, 22 was a proviso for re-entry if the lessee should not well

Iowa, 198; Tillottson v. Tillottson, 34 Conn. 336; and truly perform and keep all and singular the

Jewell v. Wright, 30 N. Y. 264; Newman v. Kershaw, covenants, conditions, and agreements thereinbefore

10 Wis. 341; Fisher v. Otis, 3 Chandl. 83; Horsford F. contained to be observed, performed, and kept. Held,

Nichols, 1 Paige Ch. 225; Kellogg v. Miller, 13 Fed. that the words of the proviso for re-entry were wide

Rep. 198; Tilden v. Blair, 21 Wall. 241; Wayne Co. enough to cover a breach of the negative covenants.

Sav. Bk. v. Lowe, 6 Abb. (N. C.) 76; S. C., 81 N. Y. Letting the premises from year to year is a breach of 569; Vliet v. Camp, 13 Wis. 208; Robinson v. Bland, 2 a covenant not to “underlease.” Q. B. D., June 25, Barr, 1078. Ohio Sup. Ct., January Term, 1883. Scott 1883. Timms v. Baker. Opinion by Lopes, J. (49 L.

v. Perlee. Opinion by Doyle, J.(39 Ohio St. 63). T. Rep. [N. S.) 106.)

FRAUD-INVALIDATING NOTE-EVIDENCE WHEN AI MARINE INSURANCE-WARRANTY FREE FROM CAP- MISSIBLE OF OTHER TRANSACTIONS.-(1) Where a note TURE.-In a policy of marine insurance a warranty is procured under the fraudulent pretense of selling “free from capture and seizure” applies not only to merchandise, to be subsequently delivered, the person capture or seizure by belligerents, but to any seizure, procuring the note not intending to deliver the propeven if it be the result of a barratrous act of the mas- erty at all, but using the form of negotiation about it ter. In a time policy the ordinary perils, including merely as an instrument of fraud, the note, as between “barratry of the master," were enumerated, and the the original parties, is void. It is also void in the subject-matter of the insurance was "warranted free hands of a third party who received it with a knowl



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