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control of an editorial column, reserving po supervis- circumstances which induced the writer to erroneion, he was practically authorized by them to write ously make the charge, provided such facts and cirand publish therein any article he thought proper. cumstances do not tend to prove the truth of the The very purpose of his employment was to collect charge made. information and write articles for publication. If It follows from reasons already given, the learned they imposed such duties upon him, and gave him judge erred in charging, substautially, as matter of such powers, limited only by his discretion, they are law, that if the defendants had no personal knowledge liable for injuries resulting from an act of his, clearly of the article before it was published, and afterward incident to the performance of his duties, in the scope in good faith did what was reasonable to make amends of his employment. He stood in their place. If the and reparation, it was not a case for punitive damages. libel was written under the authority of his employ. If the facts were found as stated they were for the ment, and in furtherance of their business, they are jury to consider in mitigation of damages; but they responsible whether the wrong resulted from his mere should not be considered alone, as controlling such negligence, or from a wanton and reckless purpose to damages; they should be considered in connection accomplish the business in an unlawful manner. Howe with all the other evidence submitted to the jury v. Neumarch, 12 Allen, 49; Ramsden v. Boston & justly tending to enhance the damages. Albany R. Co., 104 Mass. 117; Hawes v. Knowles, 114 We discover no error in the third and fourth assignid. 518. Or from his willfulness. Wood Mast. and ments to correct. The language of the article did not Serv. 576, 583. If Palmer were still living he might be expressly charge any fraudulent or corrupt conduct or sued jointly with them for this libel, or he and they motives. In the declaration the plaintiff put his conmight be sued separately. Odgers Libel and Slander, struction on the meaning of the language used; the 157, 294. Every one in any way connected in the pub- learned judge charged, if the jury found the meaning lication of a libel is equally responsible for all the to be as there averred, it was libellous. damages which flow from that publication, id. 3:28. The plaintiff has no just cause of complaint with this

It is true it has been held that express malice in an answer; besides the jury found the language to be employee who has written a libel, cannot be invoked libellous. There is no merit in the fifth assignto swell the damages against the employer, if he was ment. ignorant of the publication and not negligent. Detroit Judgment reversed, and a venire facias de novo Post Co. v. Mc Arthur, 16 Mich. 447; Scripps v. Reilly, awarded. 38 id. 10; Robertson v. Wylde, 2 Moo. & Roby, 101. It was however held in Goddard v. Grand Trunk R. Co.,

CONTRACTS OF INFANTS. 57 Me. 202, that whenever exemplary damages would be recoverable, if the act had been done by the master

NEW HAMPSHIRE SUPREME COURT. himself, they are equally recoverable when the act is done by his servant. So in Wood Mast. and Serv., $

BARTLETT V. BAILEY.* 323, it is said: “In many instances it has been held not only that the master is liable for the wanton and

A person seeking to avoid his contract on the ground of malicious acts of his serrant in the execution of the

infancy, must account for what he has received under it authority given him by the master, but also that in all

by restoring or paying the value of whatever remains in

specie within his control, and allowing for the benefit desuch cases the wantonness and malice may be shown

rived from whatever cannot be restored in specie. to enhance the damages," citing Hawes v. Knowles, on which the liability of the master rests. If he so au

delivered to the defendant, who was a minor enthorized the act that he commits it through the gaged in the milk business. The milk purchased of agency of another, he canuot claim exemption from

the plaintiff was sold by the defendant to his customany of the legal consequences flowing from the act.

ers. The defendant pleaded infancy. If this rule of law is applicable to any employer, we Andrews, for plaintiff. are unable to see why it shall not apply to the pro

Osgood, for defendant. prietor of a newspaper, who employs others to write for its columns. The proprietors do not always reside

CLARK, J. In Heath v. Stevens,48 N.H. 251,252, Perley, in the city in which the paper is published. They C. J., said: “It is now extremely well settled, that if may be in foreign countries much of their time; they

an infant would rescind his voidable contract, and redirect as to the general course to be pursued, but do

cover back what he has paid under it, or compensanot restrict the writers as to the specific means by

tion for what he has done under it, he must first rewhich the desired end shall be reached. If the pro

store the thing that he received under the contract, if prietors are asked to give the name of the author of

it remains in specie, and within his control; or if not, any article, and they refuse to do so, a person ag

must account for the value of it. But, if what he has grieved, as a general rule, has no means of ascertain

received has been consumed, or for any other cause ing the name of the writer. If they are not held re

cannot be returned in specie, he may recover for wbat sponsible for wbat they cause to be written and pub

he paid or did under the contract by deducting what lished, every person connected therewith may escape

he received, or the value of it, from the amount that those punitive damages which the law frequently im

he paid, or from the value of the services which he poses. As was said in Barr v. Moore, 6 Norris, 385. rendered.”. The principle thus declared to be firmly “The liberty of the press should at all times be justly

established is this, that a person seeking to avoid his guarded and protected; but so should the reputation

contract on the ground of infaucy must account for of an individual, against calumny. The right of each

what he has received under it by restoring or paying is too valuable to be eucroached on by the other."

the value of whatever remains in specie within his conThe defendants are charged with having composed,

trol, and allowing for the benefit derived from whatas well as having published the libellous article. It

ever cannot be restored in specie. This doctrine has follows that evidence was admissible to prove, for the

been repeatedly recognized in actions brought to repurpose of swelling the damages, the careless, reck

cover what has been paid, or compensation for what less, or wanton conduct of the employee iv writing the

has been done, under contracts made by infants. No article, in execution of authority given him by the de

reason exists why it is not equally applicable to cases fendants. Under their plea of not guilty the defend

wbere infancy is set up as a defense. Whether an inants may prove in mitigation of damages the facts and

* To appear in 59 New Hampshire Reports.

supra. This conclusion flows logically from the ground | ASSUMPSIT, to recover the price of milk sold and AO

fant is plaintiff or defendant in an action cannot gift including both real and personal property? Is the affect his legal rights as to his contracts. In either word "heirs" used in the sense of persona designatæ, case, the law affords him ample protection by making indicating the persons who would have been the heirs the benefit received by him the measure of his legal at law of the real estate if the deceased children had liability. This rule was declared, and the reasons sus- died intestate; or is it to be read in a qualified sense, taining it fully stated, in the recent case of Hall v. so as to give the real estate to those persons who would Butterfield, 59 N. H. 354. Upon the authority of that in the event of the intestacy of the deceased children case, the plaintiff is entitled to recover of the defend- have taken their estate, and the personal estate to ant the value of the benefit derived by him from the their next of kin according to the statute of distribupurchase of the milk of the plaintiff.

tions? I think this case is to be decided by authority, Case discharged. and by anthority only. No doubt the word “heir "

has a technical meaning, namely, the heir at law of MEANING OF WORD " HEIRS" IN WILL. real estate, and if there is nothing in the will to show

a contrary intention, the heir at law must take propENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, NOV. 2, 1883.

erty as persona designata. The question therefore is,

whether according to the authorities, the word "heir" KEAY V. BOULTON.

is in such a case as the present to be restricted to its A testator gave all his real and personal property to his technical meaning, or whether the cases do not decide

children" or their heirs." Held, that the word “heirs " that the word is to be read in a double meaning, that should be construed to mean the real representatives as is to say, as the heir at law of real estate in relation to regarded the real estate, and the next of kin according to real estate, and as the persons who may be in a poputhe statutes of distribution as regarded the personal

lar sense, called the “heirs" of personalty in relation estate.

to the personal estate. There are many cases on the CTION for the construction of the will of John subject, and the first to which I will refer is Vaux v.

Keay, deceased, and for consequent relief. The Henderson, 1 J. & W. 388. There a legacy of 2001, was will contained the following provisions;

given to A., and failing him, by decease before me, to “I give, devise, and bequeath unto my wife Eliza- his heirs.” “A. died before the testator, and Sir W. beth Keay all the property of which I may die pos- Grant, M. R., held that the legacy belonged to the sessed, real or personal, upon trust to use and enjoy next of kin of A. living at the time of the testator's all such parts thereof as shall yield income during the death. In other words, he held that the word “heirs " term of her natural life, and after the decease of my was to be construed as meaning the next of kin or said wife I request that the whole of my property be heirs of personalty. The next case to which I will as equally divided as possible among all my children refer is Doody v. Higgins, 9 Ha. App. xxxii, and that by my said wife, or such of them as may be then sur- case, to my mind, is one of considerable importance, viving, or their heirs. I also constitute, appoint, and because it was decided by Turner, V. C., one of the ordain my said wife sole executrix to this my last will judges who afterward, in the Court of Appeal, decided and testament."

King v. Cleveland, 33 L. T. Rep. (O.S.) 340, in which the The testator died in 1866, and his widow Elizabeth words "legal personal representatives” in a bequest Keay died on the 26th of June, 1882.

of personalty were construed as meaning "next of The testator had six children by his wife, five of kin.” In Doody v. Higgins, the will of John Adams, whom attained the age of twenty-one years. The after directing the sale of the whole of his estates not other child died in the testator's lifetime.

before disposed of, and the calling in of his securities, The testator's heir at law and customary heir was "to pay the following legacies," and specifying certain his eldest son, John Keay.

pecuniary legacies, was as follows: "The residue of Two of the testator's daughters had married in his my estates I estimate at about 6,0001, which be it more lifetime, and both of them had predeceased the testa- or less it is my desire that it be divided equally share tor's widow. Neither of those daughters had made and share alike amongst all the following persons, or any settlement or testamentary disposition of her their heirs, for ever,” and the will then named the property. Each of them left a family of children. persons. The vice-chancellor said: “ The first ques.

The testator, at the time of his death, was possessed tion is, who were the persons intended by the testator of certain freehold aud copyhold property, and was to take under the disposition of the residue to the entitled to certain moneys payable by railway com- following persons or their heirs.' I have looked into panies for lands taken under compulsory powers. He the cases which were cited in the argument, and into had, in addition, certain chattels and other personal many other cases upon this point; and I think that property.

the words ' or heirs' must be construed as words of The questions which now came before the court for substitution, and that the word 'heirs 'must be condecision were, whether the “heirs,” whatever the strued 'heirs' according to the nature of the property, meaning of that expression, of the daughters who had that is next of kin, the property being given as money died in their mother's lifetime, were entitled to share to the persons intended to take.” That case came in the property with the three children of the testator afterwards, before Wood, V. C. (2 K. &J. 729), upon a who had survived their mother; and whether the question as to the form of the order, and the viceword "heirg" must be construed strictly, or whether chancellor, in his judgment, referred to Mounsey v. it designated the personal representatives as far as Blamire, 4 Russ. 384, and quoted from what was said concerned the personal property.

by Sir John Leach, M. R., in that case: “Where the PIERSON, J. (After reading the will and stating the word 'heir' is used to denote succession, there it may facts.) The first contention was, that the three chil-be well understood to mean such person or persons as dren of the testator who survived the widow take the

would legally succeed to the property according to its whole of the property equally between them. I have nature and quality" (that, in the case of personal already decided that that is not the true construction property, would of course include a widow), “as in of the gift, but the gift is to be read as if the words Vaux v. Henderson, which has been principally relied had been “ among all my children or such of them as upon in the argument; and in the familiar case of a may be then surviving, and the heirs of such of them as gift of personal property to a man and his heirs." may be then dead," and upon further consideration I Wood, V. C., continued (2 K. & J. 736): He then goes see no reason to alter that decision. The next ques- on to say that where, on the other hand, the word is tion is, what is the meaning of the word “heirs,” the used not to denote succession, but to describe a legatee, and there is no context to explain it otherwise, then De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, and I the court will not depart from the strict sense of the think it has no bearing on the present case, and cannot word “heir” – a remark which dves not apply to the govern it. Lord St. Leopards came to the conclusionpresent case, the decision of Turner, L. J., in this case and no one could have come to any other conclusionbaring determined that in the will before me the word that the person who was to take the real estate should "heirs" is not used to describe a legatee, and is not to also take the personal estate, and that when the testabe taken in its strict sense. The decision in Mounsey tor had shown an intention that the real estate and v. Blamire, 4 Russ. 384, is inapplicable to the present the personal estate should go together, there was no case, but it is clear from what I have read that Sir rule of law that they must be separated. I now come John Leach's view was, that in a case like the present, to Smith v. Butcher, 10 Ch. Div. 113, and Wingfield v. the parties entitled would be “such persons as would Wingfield, 39 L. T. Rep. (N. S.) 227. To my mind legally succeed to personal property," claiming ab in- Wingfield v. Wingfield is bardly distinguishable from testato. So in Gittings v. M'Dermott, 2 M. & K. 60, the present case, and there Hall, V, C., came to the where there was a residuary bequest to each of the conclusion that the word “heirs" in the will then testator's sisters Mary and Sarah; and upon their before him had two meanings, namely, heir at law as deaths respectively to their “heirs," Mary and Sarah to real estate, and next of kin as to personal estate. having died during the testator's life, Sir John Leach, Smith v. Butcher, which was decided by Sir George M. R., was of the opinion that the residuary gift did Jessel, M. R., is supposed in a great measure to decide not lapse upon their death, but that it went to those the present case. There the will was this: a bequest who would have taken it by succession had the person "to the children of A. during their lives, and on the to whom the life interest was given survived the testa- decease of either of them, his or her share of the printor. 2 Myl. & K. 73. They again would be the cipal to go to his or her lawful heirs." The learned widow and other persons entitled under the statutes judge there held that the word “heir," or the word of distribation, and Lord Brougham expressed himself heirs,"

,” had a technical meaning, and that there was to the like effect in the same case when it came before nothing in the will to show that the technical meaning him on appeal; speaking of "the heir of the person- was not the true meaning of the testator. I do not alty” (id. 76), as the person entitled ; and again in a think that that case does decide the case before me, subsequent page he adds this: “It may be further ob- but assuming that the decision was perfectly correct, served that giving to A., and on his death to his heirs, I think it is still open to me to decide as I think I refers to two things which must take place without ought to decide, the present case in a different way. any such provision - the death of A., and his heirs In Smith v. Butcher there was a gift to tenants for taking after him, that is the property going to those to life, with remainder over to their lawful “heirs." It whom the law gives it; so that it is only saying, let may well be that in such a case you ought to read the those take it who may be entitled to take." Id. 81. word “heir" in its strictést sense, and to say that the And so again in Withy v. Mangles, 10 Cl. & F. 253, heir takes as persona designata. But in the present Lord Cottenham, C., speaks of “heirship according to case the gift is in the first instance to the testator's the nature of the property.” He says: “A testator wife for her life, and after her death to be equally may indeed so express himself as to intimate an inten- divided among all his children by her, or such of them! tion that the rule of the statute should prevail, as in as might be then surviving, or their heirs. The Stamp v. Cooke. So in Lowndes v. Stone, 4 Ves. 649, a heirs are not to take by way of remainder, but in gift of the residue of the estate and effects to next of a certain sense by way of substitution. It is an indekin or heir at law' was held to include nephews with pendent gift to them; they take in the place and inan uncle, the words implying heirship according to stead of the children who have died before the tenant the nature of the property." I read this passage as for life. I think that enables me to give to the word showing that not only the judges whose opinion he "heirs ” a different meaning from that which the cites, but Wood, V. C., himself, was of opinion that master of the rolls gave to it in Smith v. Butcher. I you might, without any great impropriety, speak of think it shows an intention on the part of the testator the heirs” of personal estate as well as of "the that the heirs " are to take in exactly the same way heirs" of real estate. There is a case of White v. as if the deceased children had died intestate; that is Briggs, 2 Ph. 583, in which the word “family” was to say, the heir at law is to take the real estate, and used, which is no doubt a word of large and flexible the “ heirs" of personalty, that is the next of kin, are meaning. There the testator gave to his wife all his to take the personal estate. I think that is the right property for her life, both real and personal property, conclusion in the present case, and I do so decide. I and be directed that at her death his nephew was “to disclaim any intention of guessing as to the testator's be considered heir to all my property not otherwise meaning, and I decide the case entirely upon the audisposed of;" and the testator further directed that thorities by which I believe it is governed. “wbatever portion of my property may hereafter be possessed by him, shall be secured by my executor for the benefit of his family.” The will contained these CITY NOT LIABLE FOR NEGLIGENT ACT OF further gifts: "After the decease of my wife, my real

FIREMAN. property I leave to my nephew before mentioned, his heirs and family, **** my nephew will further have

NEW HAMPSHIRE SUPREME COURT. the benefit of my personal property variously situated, and his heirs and family after him;" and Lord Cotten

EDGERLY V. CONCORD.* ham having determined that in one part of the will A declaration for damage caused by a defective highway is the word “family" meant the “heir at law” as re- not sustained by proof of a negligent act of a fireman in garded real estate, held that in another part of the the highway frightening a traveller's horse. will the same word meant the “next of kin" in re

MASE to recover damage for personal injury, caused lation to personal estate. I think he would have had

by obstruction in highway, October 10, 1874, the no difficulty in holding, that in a gift of both real and

mayor and city council of Concord were engaged in personal estate, the word “heir" might have one

testing the force and capacity of a hydrant at the inmeaning as to the real estate, and another meaning as tersection of Tabanto and Warren streets. The hose to the personal estate – that it might mean the heir and hydrant were in the hands of members of the fire at law in relation to the real estate, and the next of kin in relation to the personal estate. I next come to

* To appear in 59 New Hampshire Reports.


department, and water was being thrown uuder direc- wich, id. 225; Smith v. Rochester, 76 N. Y. 506; Horetion of the mayor upon buildings in the vicinity. The ard v. San Francisco, 51 Cal. 52; Greenwood v. Louis. plaintiff's evidence tended to show that he was travel- ville, 13 Bush, 226; Hayes v. Oshkosh, 33 Wis. 314; ling with a horse and wagon on Warren street, in the Fisher v. Boston, 104 Mass. 87; Neuert v. Boston, 120 exercise of due care, and when within a short distance id. 338; Cushing v. Bedford, 125 id. 526; Walcott . from the hydrant, the man handling the nozzle of the Swampscott, 1 Allen, 101; Buttrick v. Lowell, id. hose raised it in such way that the water in its descent 172; Barney v. Lowell, 98 Mass. 570; Hill v. fell suddenly in front of and partly upon his horse, Boston, 122 id. 344; Maxmilian v. Mayor of Nero whereby the horse was frightened, and wbeeled York, 62 N. Y. 160; Elliott v. Philadelphia, 75 quickly around, throwing the plaintiff out, and caus- Penn. St. 347; Pollock v. Louisville, 13 Bush, 221; 2 ing the injury complained of. The street was other- Dillon Mun. Corp., $ 976; Cooley Torts, 621. With wise safe and sufficient. The defendants moved for these authorities, Aldrich v. Tripp, 11 R. I. 141, is not a nonsuit, which was denied, and the defendants ex- in conflict. The decision in tbat case was put on the cepted.

ground that the injury complained of resulted from The defendants requested the court to instruct the the careless management of a hydrant by the water jury that the hydrant, and hose and pipe connected commissioners, and not by the fire department. with it, constituted no obstruction of the highway;

Verdict set aside. that the water thrown by them, falling in the highway, frightening the horse and doing damage, was not

SUPPORT OF BASTARD CHILD BORN AFTER a statutory obstruction; that the obstruction meant by

MOTHERS MARRIAGE. the statute is one caused by inert, not moving matter; that the careless use of a hydrant, hose, and pipe does not constitute a statutory obstruction of a high

IOWA SUPREME COURT, DECEMBER 10, 1883. way. George and Mugridge, for plaintiff.


G. married a woman known by him at the time to be with Sanborn & Clark, for defendant.

child begotten by S. The child was afterward born. Held, DOE, C. J. The cause of action stated in the decla- that G. by his act adopted the child and was liable for its ration is damage happening to the plaintiff, a traveller support, and that S. was not liable under a bastardy proin a highway, by reason of a defect of the highway,

ceeding. The case is distinguished from those involving which rendered it unsuitable for the travel thereon.

questions of inheritance.

ROSECUTION for bastardy to compel defendant ening the plaintiff's horse in violation of the plaintiff's to support illegitimate child. The facts appear in common-law right, and the defendants' common-law the opinion. The State appealed. duty, but a violation of the statutory, highway right H. B. Hendershott, Samuel Jones, and Smith Mcof a traveller, by a non-performance of the defend.

Pherson, attorney-general, for State. ants' statutory duty of keeping the highway “in good repair, suitable for the travel thereon." Gen. Laws,

Stiles & Beaman, for defendant. ch. 74, $1; ch. 75, $ 1. The wrong which the plaiutiff's BECK, J. The undisputed facts, as disclosed by the evidence tended to prove was a movement of the hose evidence for the State, established the following facts: in the hands of a fireman, throwing a stream of water (1) The child was begotten by the defendant, and was suddenly in front of and upon the plaintiff's horse. A born on the 13th day of August, 1882; (2) prior to its stream of water, flowing in a street from a hydrant birth, on the 1st day of June, 1882, the mother, the other source, may in time become a defect of the prosecutrix, married another man, named Getz; (3) at street. But the act of frightening a traveller's horse and before the marriage Getz was informed by the by coasting in the street, or the act of sliding against a prosecutrix that she was enceinte. Her condition was traveller, or driving a locomotive against his carriage, apparent from her appearance. Upon these facts the is not a defect of the street, within the meaning of the District Court held that plaintiff could not recover, highway law. Ray v. Manchester, 46 N. H. 59; Shep- and directed the jury to return a verdict for defendherd v. Chelsea, 4 Allen, 113; Vinal v. Dorchester, 7 ant. Gray, 421. In this case, if the act of the fireman was 2. Under chapter 56, title 25, of the code, a father the act of the city, evidence that the act of the city may be charged with the maintenance of his illegitifrightened the plaintiff's horse would not sustain the mate child. The proceeding thereunder is entitled as declaration for uon-performance of highway duty. if an action in the vame of the State against the alleged the defendants were liable, as a master for the negli- father, and may be prosecuted upon the complaint of gent act of a servant in running against the plaintiff the mother. It is a civil action of a summary nature on the sidewalk, the declaration should be for the col- (Holmes v. Slate, 2 G. Greene, 501; Black Hawk Co. v. lision and not for a defuctive highway. The motion Cotter, 32 Iowa, 125) and is iutended to secure the for a nonsuit should have been granted. Hand v. maintenance of the bastard, to the end that in no Brookline, 126 Mass. 324; Barber v. Roxbury, 11 Allen, event shall the public become chargeable therewith. 318; Hardy v. Keene, 52 N. H. 370.

Of course, if one stands in the relation to the child Upon a declaration for the act of frightening the wbich will cause the law to esteem him liable as its plaintiff's horse, another question would arise. The father for its support, being in loco parentis, the proplaintiff's evidence tended to show that the accident ceeding cannot be prosecuted against another who is was caused by using the water for a purpose of the fire in fact the natural father. The one whose relations department, the purpose of testing the power of the are such that he stands in loco parentis, the law esteems hydrant to protect its neighborhood against fire. The the father, and will not, for various reasons, inquire experiment was the proper work of the fire depart- by whom the child was begotten. ment, like the trial of a steam fire engine, hose cart, One who marries a woman known by him to be or other fire-extinguishing apparatus. Such an ex- enceinte is regarded by the law as adopting into his periment might not be judiciously postponed till the family the child at its birth. He could not expect neighborhood was on fire. And the authorities agree that the mother upon its birth would discard the child that a town is not liable for damage done by the

fire and refuse to give it nurture and maintenance. The department. Hafford v. New Bedford, 16 Gray, 297; law would forbid a thing so unnatural. The child reJewett v. New Haven, 38 Conn. 368; Torbush v. Nor-ceiving its support from the mother, must of necessity

become one of her family, which is equally the family to be held liable on the ground that he happened to be of the husband. The child then is received into the a looker-on aud did not use active endeavors to prefamily of the husband, who stands as to it in loco vent the commission of the unlawful acts. State v. parentis. This being the law, it entered into the mar- Maloy, 44 Iowa, 104; State v. Jones, 83 N. C. 605; riage contract between the mother and the husband. Lamb v. People, 96 III. 43. But any encouragement or When tbis relation is established the law raises a con- aid given the principal actor, any concert of action in clusive presumption that the husband is the father of the execution of the unlawful design, will amount to a his wife's illegitimate child. We must not be under- guilty participation in the trespass. Hilmes v. Stroestood to hold that this rule prevails in cases involving bel. Opinion by Cole, C. J. questions of heirship and inheritance. In these cases [Decided Dec. 11, 1883.] the rights of others besides the husband and bastard

PARTNERSUIP-LIMITATION OF AUTHORITY OF PARTarise. In this case the rights and liabilities of the husband and child are alone involved; they

NER AS TO GUARANTY.-Au instrument signed by a

member of rest upon the relations which impose upon the

manufacturing firm read thus: husband the duty of maintaining the child. Our con

"Allyn A. Avery, Esq.--Dear Sir: If you rent your clusion is supported by public policy, and considera

house to Mr. I. J. Hibbard, I will be responsible for tions which make for the peace and well-being of

the rent of the same as long as said Hibbard remains families. A husband who, in the manner we have in

in our employ. Respectfully, J. S. Rowell & Co."

Held, that the instrument did not bind the firm, bedicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb

cause it did not in terms do so, and because if the the family relation and bring scandal upon his wife

partner had sought to bind his firm to this guaranty and her child by establishing its bastardy after he has

the partnership would not be bound thereby, as the condoned the wife's offense by taking her in mar

giving of it was not necessary fer the carrying on the

business of the firm in the ordinary way. 1 Coll. riage. 3. The conclusion we reach in this case is supported

Partn. 666. It was no part of the ordinary business of by State v. Romaine, 58 Iowa, 46, and cases therein

such a firm to guarantee rents, even for their emcited.

ployees. The contract of guaranty must be within the 4. Many of the cases cited by defendant's counsel

scope of the partnership business. Baylies Guar, 49; Wright v. Hicks, 15 Ga. 160; Cross v. Cross, 3 Paige,

Pars. Partn., § 216; Hope v. Cust, 1 East, 53; CrawCh. 139; Goodright v. Saul, 4 Temu. 356; Lomex v.

ford v. Stirling, 4 id. 209; Brettel v. Williams, 4 Exch. Holmden, 2 Strange, 940; Hall v. Com., Hardin (Ky.),

6:23. This limitation of the power of one partner to 486; State v. Pettaway, 3 Hawks, 623; Com. v. Wentz, 1

bind the firm to the ordinary partnership business has Ashm. 269; King v. Inhab. of Kea, 11 East, 132; King

been frequently recoguized by this court. Freeman v. v. Inhab. of Maidstone, 12 id. 550; State v. Broadway,

Carpenter, 17 Wis. 126. Avery v. Rowell. Opinion by 69 N. C. 411; Stegall v. Stegall's Admr., 2 Brock. C. C.

Orton, J. 256-involve questions of heirship or inheritance, and

[Decided Dec. 11, 1883.) in this respect, differ from the case before us. The REPLEVIN-WILL NOT LIE TO RECOVER PROPERTY distinctions between those cases and this, based upon SEIZED FOR TAXES.--Under the statutes relating to this ground, are obvious. We have above pointed taxation, it has frequently been held that replevin them out. Other cases cited by counsel are also dis- will not lie to recover property held by an officer tinguished by these facts from this case.

under a tax-warrant regular upon its face, issued by It is our conclusion that the judgment of the Dis- the proper authorities against the plaintiff in replevin. trict Court ought to be affirmed.

Troy, etc., R. Co. v. Kave, 72 N. Y. 614, atfirming S. Judgment affirmed.

C., 9 Hun, 506; Hudler v. Golden, 36 N. Y. 446; Cheg.

aray v. Jenkius, 5 id. 376; O'Reilley v. Good, 42 Barb. WISCONSIN SUPREME COURT ABSTRACT.

521; People v. Albany, 7 Wend. 485; Stiles v Griffith, 3 ASSAULT — SPECTATOR NOT LIABLE FOR DAMAGES

Yeates, 82; Bilbo v. Henderson, 21 lowa, 56; Grindrod

v. Lauzon, 47 Mich. 584; Pott v. Aldwine, 7 Watts, 173; FOR. -A mere spectator is not liable for damages for

Niagara Elev. ('o. v. McNamara, 2 Hun, 416. Some an assault and battery. The general rule is, that all

courts have gone so far as to hold that the action will concerued in an assault and battery are principals, and

not lie against the officer even in favor of the true tbat one who incites another to commit such an of. fense is guilty and may be prosecuted as principal,

owner of the property, although it was seized by the

officer on a tax-warrant against another. Vacht v. although he did not otherwise participate in the

Reed, 70 III. 491. But the better opinion seems to be wrongful act. In Browu v. Perkins, 1 Allen, 89, Bige

that the statute prohibiting such action should be limlow, C. J., states the rule upon this subject as follows:

ited to cases where the property seized is that of the **Any person who is present at the commission of a

person, or one in privity with the person, against trespass, encouraging or inciting the same by words,

whom the tax was assessed. Travers v. Inslee, 19 gestures, looks, or signs, or who in any way or by any

Mich. 98; Daniels y. Nelson, 41 Vt. 161; Stockweil v. means countenances or approves the same, is in law

Veitch, 15 Abb. Pr. 412; Trask v. Maguire, 2 Dill. 182. deemed to be an aider and abettor, and liable as prin

And it has been held that the statute does not apply cipal; and proof that a person is present at the com

where there is no jurisdiction to levy the tax. McCoy mission of a trespass, without disapproving or oppos

V. Anderson, 47 Mich. 502; Le Roy v. East Saginaw ing it, is evidence from which, in connection with

R. Co., 18 id. 234; Buell v. Ball, 20 Iowa, 282. Power other circumstances, it is competent for the jury to

v. Kindschi. Opinion by Cassoday, J. infer that he assented thereto, lent to it his counte

[Decided Nov. 20, 1883.] nance and approval, and was thereby aiding and abetting the same." 3 Greenl. Ev., $ 41; Whart. Crim. Law, $ 616; Sikes v. Johnson, 16 Mass. 389; Frantz v.

KANSAS SUPREME COURT ABSTRACT. Lenhart, 56 Penn. St. 365. But as the learned judge in Brown v. Perkins remarks, it is to be borne in

JULY TERM, 1883.* mind that mere presence at the commission of a tres

LIMITATION STATUTE SUSPENDED BY DEATH OF pass or wrongful act does dot render a person liable as

DEBTOR.– Not only must there be a person to sue, a participator therein. If he is only a spectator, inno

but a cause of action cannot accrue or exist unless cent of any unlawful attempt, and does not act to countenance or approve those who are actors, he is not

* Appearing in 30 Kansas Reports.

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