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probably subject to punishment in a criminal court. the House might commit for a refusal to answer in Penal Code, $ 143, subd. 6.
election cases and the like, yet claimed for itself the And certainly if we were to consider the question, right to examine whether, in the case then in quespot as one of law, but as one of wise protection to the tion, the power was lawfully exercised. And in tbe witness, it would be best that his punishment for a re- language of the court in that case, "we cannot gire fusal should be left to the courts. Iu trials before our assent to the principle, that by the mere act of ascourts there are opposite parties. The witness appears sertiug a person to be iu contempt, they (the Senate) for oue or the other, and be is practically within the thereby establish their right to fine and imprison him, protection of the party for whom he appears. If there beyond the power of any court or other tribuual to be a doubt as to his obligation to answer some ques- inquire into the grounds on which the order was tion, he is sure to be protected by the arguments of mnde.” To the same effect are some of the remarks in one side or the other. And no decision is made until Burnham v. Morrissey, ut supra. the matter has been fairly considered. But in a case It may however be said that section 2032, subdivislike the present it is very different. The committee of iou 3, Code of Civil Procedure, required the court, on the Senate is investigating; searching for facts in any the return of the habeas corpus, to remand the prisway and by any questions. There is no impartial tri. oner. In the case of commitment by courts the agbunal to decide whether the question is proper or not. grieved party has his remedy by appeal or certiorari, The Senate prosecutes the inquiry; the Senate de- as the case may be. Hence he should not be allowed cides the question to be proper; the Senate refuses to to review by habeas corpus. There seem to be excepallow the witness counsel; and the Senate sends him tions even in these cases. People ex rel. Tuceed v. to jail.
Lipscomb, 60 N. Y. 559. But in the present case there We pass to consider some authorities which have can be no review of the action of the Senate by appeal been thought to bear on the question before us. That or certiorari. It must theu be the right of the age of Anderson v. Dunn, 6 Wheat. 204, is usually relied grieved party to bring his case before the court. To upon to sustain the inherent power of legislative hold that the Legislature could commit for coutempt, bodies to punish for refusal to answer. It is followed and then could forbid all inquiry into the rightful exin Wickelhausen v. Willet, ut supra, and is the basis of ercise of the power, would be to take away the benefit the dictum iu 1 Kent Com. 236. It is enough to say of the writ of habeas corpus. Const., art. 1, $ 4. Unless that it is overruled by Kilbourn v. Thompson, ut the question as to the lawfulness of McDonald's imsupra, and by Kielley v. Carson, ut supra. The case prisonment can here be examined in every view, then of Burnham v. Morrison, 14 Gray, 226, rests upon an
the Senate, when not acting as a court, may imprisou express provision in the Constitution of Massachu- a man, and there can be no judicial protection to him setts. Furthermore, in the opinion it is stated, that whatever. But whether the witness was bound to “the House of Representatives is the graud inquest auswer depends on legal principles ou which he is enfor the Commonwealth, and as such has power to in- titled to a judicial decision. Stockdale v. Hansard, 9 quire into the official conduct of all officers of the Ad. & Ellis, 1. It is the very basis of liberty that no Commonwealth, with a view to impeachmeut.” We person shall be imprisoned unless the right to imprison have already said that the present case does not be- him has been, or may be, determined by the judiciary. long to that part of the powers of the Senate. Nor is People ex rel. Lawrence v. Brady, 56 N. Y. 182; Taylor the Senate, in any case, an impeaching body. 1 Rev. v. Porter, 4 Hill, 140; Const., art. 1, $1. It must be for Stat., marg p. 155, $ 15.
the courts to decide whether he is deprived of his In Whitcomb's case, 120 Mass. 118, it was held that rights “by the law of the land.” Otherwise the the Legislature could not confer upon a body, not ju- Legislature might pass a vote to imprison a man dicial, the power to punish for contempt. That case, with or without cause, and he would be remediit is true, following the decision of Anderson v. Dunn, less. held, that tho Legislature itself possessed this power. And it may further be observed that section 2032,
In People v. Learned, 12 Sup. Ct. N. Y. (5 Hun) 626, subd. 3, Code Civ. Pro. refers, for the definition of the principal argument of the counsel in behalf of the criminal contempts, to seotion 8. And section 8 limits power to punish rested on the position that the body the power to punish such contempts to courts of to which the power had been given was a court. On record, and thus limits such coutempts to acts done in the other hand the counsel for the prisoner, led by the contempt of such courts. decision in Anderson v. Dunn, and the like, admitted Probably the question as to the right of either in argument the existence in legislative bodies of the branch of the Legislature to make investigations is not power to punish for contempt in refusing to answer. necessarily before us. As long as wituesses are wilOn these lines of argument therefore it is not strange ling to answer questions, there seems to be nothing that the opinion in that case has not a word on the for the court to decide. Nor is it quite easy, when a question here involved. That case was taken to the question like the present does arise, to lay down a Court of Appeals; and when it came on to be argued, rule limiting the right of investigation. For the resothe attorney-general stipulated not to enforce the lution of investigation perhaps need not express the warrant of commitment, and against the protest of ultimate object to be attained. Aud possibly the the prisoner's counsel, the court refused to hear the Legislature might be in search of information which argument. 16 Alb. Law Jour. 96. This course would aid in legislation for the future. the more noticeable, as there were, in fact, other wit.
In the case of Kilbourne v. Thompson however, nesses than Dennison who had in like manner refused already cited, the court examined the resolution under to answer.
which the investigation was carried on; and remarked But again it is urged, that assuming that there may that it contained “no hint of any intention of final be some cases in which the Senate might imprison for action by Congress on the subject," and continuing, refusing to answer (as for instance, in the trial of they said:
"Was it to be a fruitless investigation charges against judicial officers), then the Senate is the into the personal affairs of individuals? If so the sole judge of the proper exercise of its powers, and the House of Representatives had no power or authority court cannot interfere. But the contrary was held in in the matter more than any other equal number of Kilbourn v. Thompson, ut supra. In that case the gentlemen interested for the government of their court, passing the question whether the House of country.” Representatives might not commit for refusing to The return to the writ of habeas corpus in this presanswer in a proper investigation, and admitting that ent case sets forth the warraut. This does not state
the resolution of the Senate, or the questions which after the committee had insisted on his answering. McDonald refused to answer. A point may be made We must assume therefore that these are the “perti. whether such a warrant is good. Matter of Quin, nent questions" referred to by the resolution of the Abb. Dig 7, p. 402. By way of traverse to the return, Senate. the petitioner has set out the proceedings. The reso- As to the questions respecting the business of the lution recites that grave charges of fraud and irregu- witness, we cannot see the least pertinency to the sublarities have been made by the public press and the ject of investigation. There does not appear to be any Union League club against Hubert 0. Thompson, com- thing connecting the coal business with the alleged missioner of public works of the city of New York; frauds and irregularities. The questions were impertithat in the opinion of many persous the charges have neut; should not have been asked, and need not have not been explained or refuted; that it is important to been answered. tax-payers that heads of public departments should be The question as to who was breaking stone for witbeyond reproach; and it then directs a committee of ness is liable to the same objection. The resolution of the Senate to investigate the department of public the Senate did not permit an inquiry as to the persons works in the city of New York. No further action is employed by a witness, who was not himself an officer, proposed by the resolution.
or employee of the department. This department is not a State department. It is Nor was the witness obliged to tell where he obmerely one of the branches of the city government of tained the limestone chips. That was strictly his own New York. Except on account of the magnitude of business. No question was put tending to show that its work, there is no more reason that the Senate chips belonged to the city, before the witness delivered should investigate this department, than that they them. And if not, it was immaterial where he obshould investigate the action of the highway commis- tained them. sioners of some town, charged with fraud and irregu- Many questions had been previously asked, which larities by the village newspaper and the frequenters seem to bave been even less material and less pertinent of the village tavern. And it can be seen by this re- to the investigation than these. But the wituess, becital that this investigation was one appropriate for a ing at that time unattended by counsel, had answered grand jury. No legislation was proposed for the fu- them. Subsequently he procured counsel. His counture. No redress could be given by the Senate for the sel was permitted to be present “as a matter of courpast. If frauds had been committed, “the case being tesy;” but upon his advisiug the witness not to one of a judicial character, for which the powers of answer certain questions, the committee refused any tbe courts usually afford the only remedy, it may well longer to recognize the right of the witness to have be supposed that those powers were more appropriate counsel; and thereupon the wituess and his counsel and more efficieut in aid of such relief than the powers withdrew. Thus the committee appear to have been which belong to a body whose function is exclusively willing to have the counsel present so long as he gave legislative." Kilbourne v. Thompson, ut supra. It no advice. The committee had their owu counsel acthas not been suggested, upon the argument, that any ing for them and conducting the examination. The action could be taken by the Senate which would course of the examination showed an intention to redress these alleged frauds and irregularities. And charge the witness himself as a party to the alleged it is by no means apparent that investigations under frauds and irregularities. oath are needed, or useful, in aid of legislation for the The committee in the present case, after an execufuture.
tive session, formally ruled that “all questions must In the view however which we have taken, that ex- be answered that do not tend to criminate a wituess, cept when acting as a court, neither branch of the that the committee will judge as to whether the quesLegislature has power to punish, as for contempt, the tions asked will criminate the witness or not.” Thus wrong-doing, if it be such, of a witness in not answer- the committee insisted that questions should be ing, we do not consider it necessary to decide whether, answered, although they
immaterial, and if he should be brought before a court in a proper although they would tend to degrade the witness. manner, MoDonald could successfully claim that the See People v. Brown, 72 N. Y 571. The committee and investigation was unwarranted. Aud as McDonald their counsel naturally desired to get all the testimony was in the custody of the sheriff, at the time of pre-which they thought might be of any use to them. senting this petition, we have no occasion to inquire They would not be likely to reject questions put by as to the authority of the sergeant-at-arms to make an their own counsel. And we see no reasou why the arrest of a private citizen.
committee should have excluded a legal adviser of the We might leave the matter here. But other points witness, if he desired to have one present. It was unhave been argued which we will consider. We come just to the witness, that he should be exposed to the then to the specifio questions, for refusing to answer uulimited examination of shrewd counsel without which the witness was punished. These are not having any one to advise and protect him. pointed out in the proceedings before the Senate. No complaint was made of any improper conduct But an examination of the proceedings before the on the part of couusel. He was excluded simply becommittee indicates that the following are the only cause, in good faith, he endeavored to protect his questions which the witness refused to answer, when client against an improper course of examinatiou. required :
The case may net strictly come under the constituDo you keep books of this coal business?
tional provision, article 1, section 6; because this proDo you carry on your coal business any differently, ceeding was not a trial. But it seems to us a matter or upon any different system, from what you do your of common sense that a citizen, though he be a witbusiness with the city?
ness before a legislative committee, should have a How much coal do you keep at your dock ?
right, in an orderly manner, to take advice of counsel How much business do you do in the way of coal ? I as to matters which may seriously affect him or his mean all the time.
business. This is not saying that the advice of counsel Give me the name of somebody else besides Robert will protect him, should the court think the question Gubbins that was breaking stone there for you?
was proper. It is only asserting the very common Who are they (from whom you get chips) except the right of a citizen to take legal advice when he wishes. Tompkins Cove people ?
And the question was so decided in a similar case. So far as we can discover, these are the only ques- Stewart v. Turner, 3 Ed. Ch. 458. There it was tious which the witness refused finally to answer, held that o. the examination of a wituess before a
master in chancery, tbe witness had a right, in the case it must be made to appear that there is a deterpresence of the master, to consult his own counsel as mination on the part of the defendant to create the to the propriety, or duty, of answering any question cloud, and it is not sufficient that the danger is merely proposed to him
speculative. Sanders v. Yonkers, 63 N. Y. 489. Clarke We are therefore of the opinione
v. Davenport. Opinion by Miller, J. 1. That the questions put were immaterial and that [Decided April 15, 1884.] the witness was not bound to auswer them.
CRIMINAL LAW-EVIDENCE OF OTHER ASSAULTS2. That the witness had a right to have the advice of
DEFENDANT AS WITNESS-CROSS-EXAMINATION-DANcounsel, in an orderly manner, and that when this
GEROUS WEAPON-PISTOL-On the trial of defendant was refused, he was justified in withdrawing. 3. That except when engaged in the judicial func
for assault and battery, on cross-examiuation he was
asked whether he had assaulted a fellow member of tions authorized by the Constitution, neither branch
the Legislature and was expelled from that body. He of the Legislature has any power to punish as for con
admitted the assault. He confessed what unexplained tempt for a refusal to answer a question.
was the commission of a crime, and as was said in 4. That the order refusing to discharge McDonald should be reversed and that he should be discharged.
People v. Brown, 72 N. Y. 571, tended to impair the credit of the witness “by its tending to establish a bad moral character.” Held, that the question was within
the discretion of the court, and its permission was no NEW YORK COURT OF APPEALS ABSTRACT. abuse of that discretion. In People v. Noelke, 94 N.
Y. 143-4, the cases were reviewed, and we held on an INSURANCE BENEVOLENT SOCIETIES.— Plaintiff indictment and trial for selling lottery tickets, that brought suit, claiming to be the widow of Robert the defendant, testifying in his own behalf, might be Story, deceased, to recover $1,025 of the defendant by asked on cross-examination not only whether he had reason of her husband's membership in said corpora
been convicted for sending lottery papers through the tion at the time of his death. She was designated as mail, but also whether, for a period extending before the wife of deceased in the certificate of insurance is- the offense with which he was charged, be had been ensued by defendant. It was conceded that the deceased gaged in the lottery business. (2) Mere charges or acand plaintiff lived and held themselves out as man and cusatious or even indictments may not be inquired wife for many years and up to his death. The into,since they are consistent with innocence, and may plaintiff, on the trial, testified to a ceremonial mar- exist without moral delinquency. People v. Crapo, 76 riage. The defendant did not take issue in such mar- N. Y. 288; People v. Brown, 72 id. 571; Ryan v. Peoriage, or ask that the question be submitted to the ple, 79 id. 594. (3) Whether the pistol in the hands of jury, but insisted that the marriage was void, because defendant was an instrument or thing likely to proat the time of its alleged occurrence the deceased had duce grievous bodily barm was a question for the jury. a wife living in England, who survived him. Held, that Nelson v. People, 23 N. Y. 298; Abbott v. People, 86 id. the certificate operated as an assent by the association 471. People v. Irwing. Opinion by Finch, J. to the appointment of the plaintiff as the beneficiary of [Decided April 15, 1884.] the fund, which should become payable on the death of Robert Story, and entitled her, upon his death, in
ESCAPE-BOND VOID-SHERIFF NOT LIABLE.-In a the absence of any other or different appointment to
creditor's action to set aside a general assignment demand and receive it. A by-law contemplating pay
plaintiff obtained judgment adjudging said assignment ment to the lawful widow was not a limitation of the
fraudulent as against creditors. Subsequently & repower of the company so as to prevent it from recog
ceiver was appointed and the assignee ordered to acnizing as the beneficiary a person who might be desig
count and pay over to the receiver. By same order a nated by a member as holding to bim the relation of
referee was appointed to pass an assignee's account, wife. Story v. Williamsburgh, etc., Benefit Association,
who thereafter made an order that the assignee, after affirming 29 Hun, 278. Opinion by Andrews, J. [See deducting an amount allowed him, pay the remainder 62 How. 336.-ED.)
to the receiver. Refusing so to do, the assignee was [Decided April 15, 1884.)
arrested under Revised Statutes, part 3. chapter 8, title
13, and gave a bond to the predecessor of the plaintiff CLOUD ON TITLE-VOID TAX SALE-ACTION PREMA
in this action, and escaped while plaintiff was sheriff. TURE.-On November 15, 1881, the comptroller sold In an action on the bond held, that plaintiff was not and bid in lands of the plaintiff for non-payment of liable, as the bond was void. No final judgment had taxes from 1873-1876. A certificate of sale was made
been entered on the order requiring the assignee to pay as required by law. A short time before the sale
over to the receiver. The last two orders should have plaintiff made objections to alleged irregularities of
been attached to the judgment roll in the creditor's acthe assessmeuts, and requested the comptroller to an
tion and a final judgment entered thereon (Geery p. nul or stop the sale, which was refused. In Decem
Geery, 63 N. Y. 252), which could have been enforced ber, 1881, this action was commenced to have the sale
by execution, and not in the manner as was done. declared null and void, the certificates surrendered
Code, S$ 1240, 1241. The provisions of the Revised and the execution of a deed enjoined. Held, that
Statutes under which the assignee was arrested do not although the assessments were in fact irregular, the
apply to a case where money has been ordered paid by action was premature. Plaintiff must await the two
a final judgment. Lansing v. Lausiug, 4 Lans. 377; years which must elapso before the giving of the deed.
Strobridge v. Strobridge, 21 Hun, 288; Baker y. Baker, It is settled by the decisions of this court that to au
23 id. 356; People ex rel. Fries v. Riley, 25 id. 587; Ran. thorize the interposition of the court to remove the
dall v. Dusenbury, 41 N. Y. Supr. 456; Watson lien of an assessment as a cloud upon title it must ap
v. Nelson, 69 N. Y. 536; O'Gara v. Kearney, 77 id. 43. pear that the record of proceedings are not void upon Myers, Sheriff, v. Becker. Opinion by Earl, J. their face, and that the claimant under it would not,
[Decided April 15, 1884.] by the proof which he would be obliged to produce in event of an attempt to enforce his claim, develop the WILL-SALE OF REAL ESTATE-DISCRETION OF EXECdefect rendering it invalid. Dederer v. Voorhies, 81 UTOR-COMMISSIONS.—The testator by a clause in bis N. Y. 156; Guest v. City of Brooklyn, 69 id. 506. While will authorized and empowered his executors “ to let or a court of equity may entertain a suit to remove a lease my real estate and to receive the rents and profits cloud upon title, and also to prevent one, in the latter thereof, and after the decease of my wife to sell and
convey the same for such prices and upon such terms subsequently overruled by this court, is conclusive of as they may deem best for the interests of my estate." the point under discussion. It has never been overOn the final accounting the appellant, who is a daugh- ruled. The plaintiff in error relies on the case of ter of defendant intestate, claimed that it was the Wood v. Carpenter, 101 U. S. 135, and National Bank duty of the executors, under the will of the testator, v. Carpenter, id. 567. The first was an action at law; to have sold certain un productive real estate and so the second a suit in equity. The court in both cases much of the productive as was not needed for certain was called on to construe a statute of limitations of trusts created by the will, forthwith after the testator's the State of Indiana, and it followed the adjudications death, and to have sold all the real estate forthwith after of the Supreme Court of that State upon the same statthe death of his widow. Held, that taking the various ute. Neither case refers to the opinion of the court in parts of the will which have been referred to into con- Bailey v. Glover, or can be held to overrule or modify sideration, it is a reasonable presumption that the tes- it. The case of Bailey v. Glover has been often cited tator intended to leave the question as to the sale of the by this court, but has never been doubted or qualified. real estate before the death of his wife to the judgment Wood v. Bailey, 21 Wall. 640; Wiswall v. Campbell, 93 and sound discretion of his executors. While perhaps U. S. 347; Gifford v. Holmes, 98 id. 552; Upton v. Mc. they might have the right to sell, they at the same time Laughlin, 105 id. 640. (2) Knowledge on the part of the were authorized to retain aud hold the same until the assignee that the bankrupt has refused, at a judicial death of testator's widow. If it was desired to com. examination, to answer certain questions regarding pel the executors to sell under the provisions of the his property, on the ground that his answers would will the proper course would seem to have been to in- criminate him with respect to an indictment then stitute a suit for that purpose. Hancox v. Wall, 28 pending against him for a criminal offense under the Hun, 214. The power to sell after the death of the bankrupt laws, is not sufficient to make it the duty of widow was also discretionary. Where there is a the judge to rule, as a matter of law, that the assignee voluntary accounting and a settlement between the bad constructive knowledge of the fraud. His kuowl. parties, as appears to bave been the case here, it may edge is a question for the jury on all the evidence. (3) well be doubted whether the right to commissions re
The rule is well settled that if a letter properly ditained could be afterward questioned by the parties rected is proved to have been either put into the postwho had assented to the retention of them by the trus- office or delivered to the post-man it is presumed, from tees. Hurlburt v. Durant, 88 N. Y. 121. The general the known course of business in the post-office departrule that executors and administrators cannot re- ment, that it reached its destination at the regular tain commissions, and only be allowed time, and was received by the person to whom it was them upon an accounting would seem to be inapplica- addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodble to the case at bar. Here the income was required cock v. Houldsworth, 16 M. & W. 124; Dunlop v. Higto be paid periodically, and the trustee stands in the gins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321 ; same position as a trustee who holds an estate, and is Starr v. Torrey, 2 Zabr. 190; Tamer v. Hughes, 53 required to pay the anuual income arising from the Penn. St. 289; Howard v. Daly, 61 N. Y. 362; Huntley same to the cestui que trust. Such a trustee is entitled v. Whittier, 105 Mass. 392. As was said by Gray, J., in to full commissions on each year's receipts and dis- the case last cited, “the presumption so arising is not bursements. Vanderheyden v. Vanderheyden, 2 Paige, a conclusive presumption of law, but a mere inference 288; Matter of Bank of Niagara, 6 id. 216; Matter of of fact founded on the probability that the officors of the Kellogg, 7 id. 266; Hosack v. Rogers, 9 id. 467; Fisher government will do their duty and the usual course of v. Fisher, 1 Bradf. 336. Hancox v. Meeker. Opinion business, and when is is opposed by evidence that the by Miller, J.
letters never were received, must be weighed with all [Decided April 15, 1884.]
the other circumstances of the case by the jury in determining the question whether the letters were actu
ally received or not. (4) The court, having in its UNITED STATES SUPREME COURT AB
own way fairly presented the issues, was not bound by
its duty to give the charges requested, had they been STRACT.
unobjectionable. The Schools v. Risley, 10 Wall. 115.
Rosenthal v. Walker. Opinion by Woods, J. LIMITATION-FRAUDULENT CONCEALMENT-KNOWL
[Decided March 31, 1884.] EDGE OF ASSIGNEE-LETTERS MAILED PRESUMED RECEIVED.-(1) An assignee in bankruptcy, from whom
LIMITATION-RUNS FROM RETURN OF 'EXECUTION.a fraudulent transfer by the bankrupt has been con
Suit was brought upon a judgment after a .return of cealed until the expiration of the period within which
nulla bona upon the execution writ. Held, that the the statute requires all actions for the recovery of
statute of limitations commenced to run at the time of property thus transferred to be brought, may never
the return of the execution, and not the entry of the theless bring his action upon discovering the fraud.
judgment. Taylor v. Bowker. Opinion by Harlan, J. The statute of limitations cannot be made an instru
[Decided March 24, 1884.] ment of fraud. In Bailey v. Glover, 21 Wall. 342, the PATENT-COMBINATION-INFRINGEMENT — REISSUE court held, that “as the bill contained a distinct alle- VOID-DISCLAIMER DOES NOT REVIVE ORIGINAL.-(1) A gation that the defendants kept secret and concealed patent for a combination of several parts is not infrom the parties interested the fraud which was friuged by the use of the combination of any number sought to be redressed," the case was not subject to of those parts less than the whole. Brooks v. Mears, the bar of the statute. The court added: “To hold 16 Pet. 336. (2) In a patent for a soldering-iron, claimthat by concealing a fraud, or by committing a fraud ing a hollowed disk combined with a movable roj passin a manner that it concealed itself until such time as ing through it to hold the lid while the solder hardens, the party committing the fraud could plead the stat- the disk is an indispensable element; and all claims of ute of limitations to protect it, is to make the law the reissue which do not restrict the soldering-iron to which was designed to prevent fraud the means by the form of disk are void. No combination having which it is made successful and secure." The court a soldering iron of different form is an infringment. also declared that the exception to the bar of the stat- Gill v. Wells, 22 Wall. 1; The Wood Paper Patent, 23 uto was applicable to suits at law as well as in equity. id. 566; Powder Company v. Powder Works, 98 U. S.; The case of Bailey v. Glover is a decision construing Ball v. Langles, 102 id. 128; Miller v. Brass Co., 104 id. the statute which is relied on in this case, and unless 350; Jones v. Campbell, id 356; Heald v. Rice, id.737; Johuson v. Railroad Co., 105 id. 539; Bautz v. Frantz, them orders for their wages, stating that they would id. 160; Wing v. Anthony, 106 id. 142. (3) Where the regard themselves in that case as discharged. The original claim was for a hollow soldering-iron with a master gave them the orders, and the saiiors left the ves. handle and beveled rim, in combination with a rod to sel. Held, that they were discharged, and were not to be hold the cap firm, and the specifications showed that the looked ou as deserters. Grauon v. Hartshorne, Blatchf. bollow iron was intended to fit upon a cap of any shape, & H. 458; The David Faust, 1 Ben. 187. (2) Upon the held, that a claim in the reissue for “a tool cousisting wrongful discharge of a workman engaged under an of a soldering-iron revolving about a central pivotal entire contract, he is entitled to recover his wages durrod” was broader than the original, and void. (4) ing actual service. (3) The remedy afforded seamen by Where a patent has been declared on the oath of a pat- sections 4546 and 4547 of the Revised Statutes is not entee to be invalid and inoperative, been surrendered exclusive, and the usual process in rem against the and canceled, aud reissued letters patent granted in its vessel is still open to them. Murray v. Ferryboat, 2 place, it is not competent for the patentee or his as- Fed. Rep. 88; The William Jarvis, Spr. Dec. 485; The signees, by merely disclaiming all the chauges made in M. W. Wright, 1 Brown, Adm. 290; The Waverly, 7 the reissued patent, to revive and restore the original Biss. 465. Dist. Ct., D. N. J. Feb. 2, 1884. The Frank patent. This could be done only, if it could be done C. Burker. Opinion by Nixon, J. at all, by surrender of the reissued patent and the grant of another reissue. McMurray v. Mallory. Opinion by Woods, J.
TEXAS SUPREME COURT ABSTRACT. [Decided March 24, 1884.)
DAMAGES-RAILROAD ON PUBLIC STREET_SPECIAL
INJURY.-(1) Iu a suit før, damage to property by a UNITED STATES CIRCUIT AND DISTRICT
railroad running along a public street, near such propCOURT ABSTRACT.*
erty, evidence going to show damage from smoke, cin
ders, unusual noises from the ringing of bells, blowing PATENT-SUSPENDING INJUNCTION--PUBLIC INTER- of whistles, etc., is admissible. Sutherland on DamaEST.–After a final decree establishing an exclusive ges, pp. 436-7; Wilorington, etc., R. Co. v. Stauffer, GO right to the use of a patent and awarding an ivjunction Penn. St. 374. (2) Where the continued presence and to protect it, the injunction will not be suspended operation and operation and operation of such road while the decree stands unreversed, unless some extra- along the street inflicts such special injury to the propordinary cause outside of the interests of the parties erty of the abutting owner as to practically deprive is shown. Public necessity may bo & cause for such him of the ordinary use and enjoyment of it, that suspension; but the defendant, after insisting that the such special injury is of such a nature that an action invention is of no use and benefit, and thus defeating for damage will lie. Ashley v. Port Huron, 35 Mich. the orator's claim for substantial damages on account 296; Pumpelly v. Green Bay R. Co., 13 Wall. 166, of infringement will not be heard to allege that it is of Hooker v. New Haven, etc., R. Co., 14 Conn. 146; such public importance as to warrant a court in sus- Grand Rapids Boom Co. V. Jarvis, 30 Mich. 308; Arpending the injunction. Potter v. Mack, 3 Fish. Pat. mond v. Green Bay R. Co., 31 Wis. 316. In order to Cas. 4:28; Brown v. Deere, 6 Fed. Rep. 487. Cir. Ct., give the party injured a right of action the street need 8. D. N. Y., 1884. Munson v. Mayor, etc., of New not be entirely destroyed or wholly or exclusively York. Opinion by Wheeler, J.
used by the appellant. Where, as the result of the ocWHARVES--RIGHT TO MOOR VESSELS-COLLISION
cupation of it by the railroad company, the use of the DAMAGES.—(1) The right of mooring vessels at public
street by the adjoining owner is very greatly impaired wharves is as much to be protected as that of navigation and the injury in this respect one special in its nature, itself, but it is to be exercised with due regard to the
and not one common to the community at large, an rights of passing vessels, and any unnecessary en
action to recover damages will lie. G. C. & S. Fe R. croachment upon the channel-way which greatly im.
Co. v. Eddins. Opinion by West, J. perils passing craft is without justification. (2) A (Decided Jan. 29, 1884.) steamboat lying at a wharf-boat at the public landing PAYMENT - APPLICATION NO CHANGE WITHOUT of Pittsburgh threw her stern out in the way of a de
DEBTOR'S CONSENT. -The debtor may designate to scending coal-tow, when she might have lain broad
what particular debt a payment shall be applied where side to the wharfboat, and thus afforded a sufficient
he owes more than one distinct separate debt to the passage-way for the towboat and tow. A collision oc
creditor. Such designation precludes the creditor curring, held, that the steamboat was answerable to
from otherwise appropriating it. Proctor v. Marshall, the owner of a coalboat thereby lost. (3) In case of a
18 Tex. 66; Taylor v. Coleman, 20 id. 776. If a creditor collision between a descending coal-tow and a vessel receive money, with directions to appropriate it on a wrongfully obstructing the channel-way, the previous named debt, it must go to the specified debt, no matfault of another vessel, in striking and throwing out of
ter what the creditor may say at the time; and au apshape the coal-tow, is not to be imputed to the towboat propriation once desiguated cannot be changed by the if the latter were free from blame. '(4) An innocent
creditor without the debtor's consent. Whart. party who sustains loss by reason of the concurrent
Cont. 923; Levystein v. Whitman 59 Ala. 345; negligence of two vessels may pursue aud recover the
Reed v. Boardman, 20 Pick. 443; Benj. Sales, 746. entire damages from either wrong-doer. The Atlas,
Eyler v. Read. Opinion by Stayton, J. (See 1 'Am. 93 U. S. 302; The Franconia, 16 Fed. Rep. 149. Dist.
Rep. 109; 16 Eng. R. 273.-ED.] Ct., W. D. Penn. Jan. 23, 1884. The St. Lawrence.
[Decided Nov., 1883.] Opinion by Acheson, J.
JUDGMENT-NUNC PRO TUNC-FOR COSTS NOT FINAL. SHIPPING AND ADMIRALTY-.DISCHARGE OF SEAMEN
-(1) Judgments nunc pro tunc are never permitted to --RECOVERY OF WAGES — REMEDIES.—(1) In couse
affect the rights of such persons as have acquired rights quence of a disagreement between the master of a ves
between the time a judgment is really rendered and sel and his seamen about the annount of wages due them, the mariners were ordered to go to work or go
the time at which the judgment is entered upon the on shore. They agreed to go on shore if be would give
minutes, now or then, such persous having no notice
of the judgment. Freem. Judg., 66; Jordan Petty, * Appearing in 19 Federal Reporter.
5 Fla. 326; McCormick v. Wheeler, 36 III. 114;