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RECENT DECISIONS.

ADMINISTRATION-REPLEVIN AGAINST EXECUTOR. Defendant's testator was bailee of paintings belonging to plaintiff, who sued defendant as executor for the possession of the goods or their value. Held, the possession lawfully devolved upon the executor as bailee, and the rule that executors are liable in their representative capacity to the true owner for property received by them in such capacity applies. Moran v. Morrill (1903) 78 App. Div. 440.

The general rule is that an executor cannot subject the estate in his hands to any new liability either by his contract or his wrongful act. Van Slooten v. Dodge (1895) 145 N. Y. 327. An action to recover a chattel is ex delicto, Wall v. De Mitkiewicz (1896) 9 D. C. App: Ca. 109, Rector v. Chevalier (1823) 1 Mo. 345, the wrongful detention being the gist of the action. N. Y. Code Civ. Proc. § 1695 ; Gildas v. Crosby (1886) 61 Mich. 413. While the rule laid down in the principal case is so stated in De Valengin v. Duffy (1840) 14 Pet. 282, the decision limits the rule to a case where the estate has been enriched by money received by the executor in his representative capacity. Goods belonging to another are not part of the esiate Shep. Touchstone, 498 ; 2 Woerner on Administration, 2d ed. $ 312 ; Cooper v. White (1856) 19 Ga. 554. There seems to be no authority, and certainly no logical ground, for giving a right against the estate for their unlawful detention, a personal tort by the executor, by which the estate has been in no way enriched. CONSTITUTIONAL LAW— FEDERAL JURISDICTION—PROTECTION OF FEDERAL OFFICERS. The petitioner, while acting on the posse of a United States revenue collector, was instrumental in the arrest of one Thomas for violating internal revenue laws, and testified against Thomas at the commitment proceedings. Thereafter, and while petitioner was on his way to make another arrest, he was attacked by Thomas, and struck him in self-defence. For this he was indicted by the State grand jury. Held, the case was removable into the federal court, the defendant having acted under color of office” in the exercise of “a right or authority claimed ” under a federal law-U. S. Rev. Stat. Sec. 643. Commonwealth of Virginia v. De Hart (C. C., W. D. Va. 1902) 119 Fed. 626.

Where a United States officer is charged with a duty and does acts under color of his duty, which, but for his office, would be a crime against the State, the United States courts have jurisdiction, and under the act of Congress, supra, can remove the case from the State courts into the federal courts. State v. Hoskins (1877) 77 N. C. 530. The stat. ute applies to deputies and assistants of marshals, when engaged in enforcing a revenue law. Davis v. South Carolina (1882) 107 U. S. 597. It would make no difference that the assault arose out of a previous transaction, as the officer on his way to make an arrest was engaged in the discharge of his duty. In re Neagle (1889) 135 U. S. 1. CONSTITUTIONAL LAW-HIGHWAY EASEMENTS—COMPENSATION. A railway company operating its road in the streets of a city was compelled by legislative act io elevate its tracks by means of a viaduct which deprived plaintiff's premises of light and air. Held, the statute compelling the erection of the viaduct was constitutional, and, the act being essentially done by the State, plaintiff could not recover. Muhiker v. N. Y. & H. R. R. Co. (1903) 173 N. Y. 549. See NOTES, P. 347. CONTRACTS-PUBLIC OFFICER's Bond. The superintendent of the mint at New Orleans gave bond that he should faithfully and diligently per. form, execute, and discharge, all and singular, the duties of said otħce

according to the laws of the United States, then this obligation to be void and of no effect, otherwise to remain in full force and value." Section 3504, U. S. Comp. Stat. 1901, p. 2341, prescribe that the superintendent of each mint shall receive and safely keep until legally withdrawn all moneys or bullion which shall be for the use or expense of the mint." Without personal fault on the part of the superintendent $25.000 of treasury notes were burned. Held, the superintendent was liable on his bond for the face value of the notes destroyed. Smythe v. United States (1903) 188 U. S. 156.

The court is fully supported, by the authorities which it cites, in holding that nothing short of an act of God or of a public enemy will excuse the performance of such a bond. The ground for granting a recovery of the face value of the notes does not seem plain. The lower court (1901, 46 C. C. A: 354) proceeds upon the ground that the bond is absolute and not one of indemnity, and there some authority for this view. State v. Gresham (1848) í Ind. 190; State v. Hayes (1887) 30 W. Va. 107. This seems to have been the view of the prevailing opinion in the Supreme Court, although it is somewhat disguised in an attempt to avoid overruling United States v. Morgan (1850) 11 Howard 154, which the dissenting justices relied upon to show that such bonds were given for indemnity only. CONTRACTS - STATUTE OF FRAUDS—WIL AS MEMORANDUM. Defendant took possession of the lands in controversy under a parol contract with his grandfather, who owned the lands, whereby it was agreed that if the defendant would live with his grandfather the latter would devise the lands to him. The defendant went to live with his grandfather who made a will as agreed. Subsequently the grandfather deeded the lands in question for no consideration to the plaintiff, who brings ejectment. Heli, the will was a sufficient memorandum to take the case out of the statute of frauds. Shoyer v. Smith (Pa. 1903) 54 Atl. 24.

The general rule that the memorandum, in order to satisfy the statute, must contain all the terms of the contract,- Abeel v, Radcliff (N. Y. 1816) 13 Johns. 297; May v. Ward (1883) 134 Mass. 127-seems also to have been the law in Pennsylvania. Soles v. Hickman (1852) 20 Pa. St. 180; Rineer v. Collins (1893) 156 Pa St. 342. In each of the two cases cited by the court in the principal case as upholding its position, the will contained the terms of the contract; Brinker v. Brinker (1847) 7 Pa. St. 53; Smith v. Tuit (1889) 127 Pa. St. 341; but in the principal case the will apparently made no reference to any contract or to any of its terms. The ruling, therefore, seems wrong. No reliance was placed on the doctrine of part performance. CORPORATIONS_TRANSFER OF SHARES-FORGED DEED OF TRANSFER. One of two owners of shares of stock pledged them with the defendants and gave the latter a deed of transfer on which the signature of the co-owner was forged. At the request of the defendants, who were innocent, and on the faith of the transfer deed, the corporation registered the defendants as shareholders. It was afterward made liable to the true owner. Held, the corporation might recover from the defendants the damages sustained. Sheffield Corporation v. Barclay, (1903) 1 K. B. 1.

In refusing to follow the opinion of LINDLEY, J., in Simm v. AngloAmerica Assn (1879) 5 Q. B. D. 188, the court adopted a sound principle, and one supported by two American decisions. Boston & Albany R. Co. v. Richardson (1883) 135 Mass. 473 ; Beacon v. Howard Ins. Co. (1875) 42 Md. 384. Though there is but little authority upon this subject, yet upon an analogy to the implied warranty of title by the vendor of personalty, Edwards v. Pearson (1990) 6 T. L. R. 220, it would seem sound to hold the transferee impliedly warrants the genuineness of his deed of transfer. Boston & Albany R. Co. v. Richardson, supra. The cases, however, are inclined to place their decisions partly on the vague ground that “as between two innocent parties the loss must be borne by the party causing it.” Brown Lancaster Co. v. Howard Ins. Co., supra.

Div. 550.

case.

N. Y. 377.

DAMAGES- CONTRACTS—ANTICIPATORY BREACH. Defendant newspaper contracted to buy news from plaintiff press association for ten years. After four years defendant repudiated the contract. Three years later plaintiff made an assignment in insolvency. Held, plaintiff is entitled to recover as damages the value of the contract from the date of breach to the date of insolvency only. United Press v. Abell Co. (1903) 79 App.

The party injured by a breach of contract may recover as damages the actual loss sustained the value of the contract. Devlin v. Mayor (1875) 63 N. Y. 25; 2 Sedgwick on Damages (8th ed.) SS 607, 609, 618. This value is to be ascertained in view of all the circumstances of the

Wakeman v. Wheeler & Wilson Mfg. Co. (1886) 101 N. Y. 205. In the principal case the contract was personal, depending for its proper performance upon the skill, knowledge and discretion of the plaintiff as a news-gatherer. It was therefore unassignable and tlie ability to perform terminated with the plaintiff's assignment in insol. vency. After that date, nad the defendant not repudiated, the plaintiff could have earned nothing under the contract, so that to allow the plaintiff the value of the contract from breach to insolvency seems a correct application of the principle that damages are intended as compensation for the loss sustained. DOMESTIC RELATIONS–CONSTITUTIONAL LAW-ALIMONY. The plaintiff obtained a decree of divorce, with alimony, against the defendant. The decree was modified under N. Y. Laws 1900, c. 742, passed subsequent to the decree, authorizing the Supreme Court to modify the award of alimony after final judgment. Held, the act was unconstitutional as to decrees entered before its passage, as depriving the plaintiff of property without due process of law. Livingston v. Livingston (1903) 173

The court had no authority under the statutes in force at the time of the decree to modify it after final judgment. Kamp v. Kamp (1874) 59 N. Y. 212 ; Erkenbach v. Erkenbach (1884) 96 N. Y. 456. The question then arises whether subsequent legislation can remedy this defect. The case seems right in deciding that it cannot. Although a decree of alimony differs in some respects from an ordinary judgment, Romaine v. Chauncey (1892) 129 N. Y. 566 ; In re Robinson (1884) 27 Ch. Div. 160, it is, nevertheless, a property right substituted for the marital obligation to support: Romaine v. Chauncey, supra. The judgment is for the payment of money, and such an obligation is beyond the power of the legislature to modify in any manner. Germania Savings Bank v. Suspension Bridge (1899) 159 N. Y. 363; McCullough v. Virginia (1898) 172 U. S. 102. DOMESTIC RELATIONS-FOREIGN DIVORCE-ESTOPPEL. Plaintiff sued in New York for dower. She had secured a divorce in Massachusetts, the husband being served by publication and never having submitted him. self to the jurisdiction. Held, plaintiff having procured the decree of the Massachusetts court could not be heard to dispute its validity. Starbuck v. Starbuck (1903) 173 N. Y. 503.

The contrary decision of the court below was criticized in 1 COLUMBIA Law REVIEW, 485. It is a matter of congratulation that the court avoided the dictum in the much criticized case of People v. Baker (1879) 76 N. Y. 78, that the plaintiff might be divorced by ex parte proceedings though the defendant would still be married. See Dunham v. Dunham (1896) 162 Ill. 589. Substantially the reasoning of the principal case is employed in Kerrigan v. Kerrigan (1862) 15 N. J. Eq. 146, and In re Ellis' Estate (1893) 55 Minn. 401. DOMESTIC RELATIONS_FOREIGN Divorce- JURISDICTION. The deceased, a citizen of Massachusetts, went to South Dakota and instituted a suit for divorce. His wife put in an answer and then withdrew. The deceased, after obtaining a decree, returned to Massachusetts. A Massachusetts statute provided that if an inhabitant went to another State to procure a

divorce, the divorce should be of no force or effect. The Massachusetts court found the deceased had never obtained a domicil in South Dakota, and held the defendant in the South Dakota suit entitled to be administratrix. Held, the full faith and credit clause of the federal Constitution was not violated. Andrews v. Andrews (1903) 188 U. S., 14.

Under this clause of the Constitution, jurisdiction is always open to question, and a judgment may be disregarded in another State if any fact essential to jurisdiction was lacking. Thompson v. Whitman (1873) 18 Wall. 457. It is an established doctrine of the United States Supreme Court that domicil of some sort within the State is necessary to give jurisdiction to grant a divorce. Bell v. Bell (1901) 181 U. S. 175; Štreitwolf v. Streit wolf (1901). 181 U. S. 179. In those cases the proceedings were ex parte, but in the present case the court refused to distinguish them, holding that domicil is indispensable even if both parties appear. Therefore, though the court places some reliance on the statute, the Massachusetts court could have reached the same conclusion even in its absence.

EQUITY_CLOUD ON TITLE. A leased land to B, who covenanted to pay taxes. The lease was assigned to the defendant, and the reversion to the plaintiff. The defendant later assigned the lease to one Dryden, and on taxes falling in arrears bought in the property under a tax sale and claimed adversely to the plaintiff. On demurrer to a bill to remove cloud on title, it was held, though the plaintiff was out of possession and ejectment would lie, still equity had jurisdiction on the ground of fraud and because the remedy at law was inadequate as a void instrument of title would be left outstanding. Oppenheimer v. Levi (Md. 1903) 54

The holding of the court that there was not an adequate remedy in this case means that ejectment would never be an adequate remedywhere the defendant was claiming under a paper title, and is contrary to principle and authority, as the judgment would make the deed a res judicata. · Pratt v. Pond (Mass. 1863) 5 Allen, 59; Bassett v. Brown (1869) 100 Mass. 355; Dawley v. Brown (1880) 79 N. Y. 390. There would have been a complete remedy at law in the ejectment which the court concedes would lie. A plaintiff cannot transfer the adjudication of a legal controversy to equity by the mere allegation of fraud. Green v. Spaulding (1882) 76

Atl. 74.

Va. 411.

EQUITY_INJUNCTION TO RESTRAIN PROCEEDINGS IN ANOTHER State. Defendant brought suit against plaintiff in New York, for breach of contract, and later commenced an action in Connecticut on the same cause of action. Plaintiff asked the New York court to restrain defendant from prosecuting the action in Connecticut, on the ground that it was only brought to avoid certain evidence which could be introduced in New York, but not in Connecticut. Held, an injunction should be granted. Locomobile Co. of America v. American Bridge Co. of New York (1903) 80 N. Y. Sup. 288. See Notes, p. 3501.

EQUITY-SPECIFIC PERFORMANCE-CONTRACT OF HUSBAND AND WIFE TO LIVE TOGETHER. Defendant was sued for divorce, and in consideration of his wife's foregoing their differences and becoming reconciled and living with him, promised to convey certain land to trustees for the benefit of his children. The wife discontinued her action and lived with defendant. On refusal to convey, the wife and the children by their guardian brought a suit for specific performance. Held, the conveyance would be decreed. Moayon v. Moayon (Ky. 1903) 72 S. W. 33.

The objection that there was a want of mutuality was met by holding the reconciliation to be substantial performance. Å similar case is Barbour v. Barbour (1892) 49 N. J. Eq. 429. The same result might perhaps be reached by treating the contract like a marriage settlement, where the children may sue even when one party is in default. Harvey v. Ashley (1748) 3 Atk. 607.

EVIDENCE-HEARSAY-Res Gesta. In an action on an insurance policy in which the death of the insured was the issue, the plaintiff sought to introduce a letter written by the insured after he was last seen, announcing his intention to commit suicide. Held, such letter was admissible as part of the res gesta. Rogers v. Manhattan Ins. Co. (Cal. 1903) 71 Pac. 348. See Notes, p. 351. EVIDENCE-PRESUMPTION OF Death. The owner of property taken by condemnation proceedings had been absent and unheard of by his family for more than seven years, and his widow and heirs at law claimed the compensation. Held, the presumption of death after seven years' absence raised by Code Civ. Proc. $ 841 applies only to one on whose life an estate in land depends, and to establish death in other cases additional evidence is necessary. In re Boerum St. (N. Y. 1903) 66 N. E. 11.

Although the burden of proof is upon one asserting the death of a person, yet it is the general rule that if the person has not been heard of for seven years by those, if any, who, had he been alive, would naturally have heard of him, he is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death. Bennett, Adm'r v. Sloman (1900) 70 N. H. 289; Flood v. Growney (1895) 126 Mo. 262; 1 Greenl. Ev. $ 41. "But there is no presumption as to the time of death in most jurisdictions. Davie v. Briggs (1878) 97 U. S. 628; Nepean v. Doe & Knight (1837) 2 M. & W. 894. The principal case recognizes this general rule but refuses to apply it until all the evidence obtainable is before the court. Matter of Tobin (1888) 15 N. Y. St. Rep. 749. EVIDENCE-TESTIMONY OF ARBITRATORS TO IMPEACH AN AWARD. A pending cause was by argument of the parties submitted to arbitration. An award was made, 'purporting on its face to be unanimous. The unanimity was denied, and in support of the denial depositions of the arbitrators were offered in evidence. Held, they were inadmissible. Corrigan v. Rockefeller (Ohio, 1902) 66 N. E. 95.

The point was whether the testimony of an arbitrator is inadmissible to impeach the award as that of a juror is inadmissible to impeach a verdict. The case seems to be the first in America. In Ireland no analogy between an arbitrator and a juror is recognized. Brophy v. Holmes (1828) 2 Moll. I. In England while it has long been the rule that mistake or misconduct of arbitrators could not be pleaded in an action on the award, Wills v. MacCarmack (1762) 2 Wils. 148 ; Braddick v. Thompson (1807) 8 East, 344, yet there has been difference of opinion on motions to vacate awards in arbitrations entered into under rule of court. The Exchequer refused to hear such testimony as was offered in the principal case; Phillips v. Evans (1843) 12 M. & W. 309; Haggar v. Baker (1845) 14 M. & W. 9; while the Queen's Bench and the Common Pleas admitted it. Hutchinson v. Shepperton (1849) 13 Q. B. 955; In re Hall (1841) 2 M. & G. 847. The House of Lords finally ruled that such evidence is admissible only to show that the arbitrators acted within their jurisdiction. Buccleugh v. Board of Works (1872) L. R. 5 H. L. 418. NEGOTIABLE INSTRUMENTS-FORGED CHECK-RECOVERY OF MONEY PAID BY MISTAKE. Plaintiff bank certified a check for $5.00, drawn on it by B. B raised the check to $500 and defendant bank cashed it. Plaintiff paid the check when presented by defendant, but the next day discovered the forgery and demanded that defendant repay the money. Held, plaintiff could recover. Imperial Bank v. Hamilton Bank (1902) 72 L. J. P.

In Cocks v. Masterman (1829) 8 L. J. K. B. 77 and London, etc., Bank v. Bank of Liverpool (1896] 1 Q. B. 7 it is stated broadly that if the holder of a bill receives the money on it, and is suffered to retain it during the whole of the day, the party who paid it cannot recover it back, on discovering an irregularity. The court holds that this rule, despite the broad language used in both cases, is not applicable to the principal case. In the cases named the holder was entitled to immediate notice in order that he might at once notify the drawer and indorser, and thus fix their

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