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The Central Law Journal. class of persons, proposed to be affected,

scorn alike all political and social ties, and

are equally dangerous, whether they are citiST. LOUIS, AUGUST 20, 1886.

zens or aliens. The naturalization laws are

well enough, if they were properly enforced, CURRENT EVENTS.

but as long as the foreign vote is so largly a

political factor, and aliens are naturalized in LORD CHANCELLOR OF ENGLAND.-In the

shoals upon the eve of every election, it is last number of thn Solicitor's Journal, of

manifest that a proper enforcement of naturLondon, it is said that "there is a general alization laws can hardly be expected. The feeling of regret, among lawyers, that the

law requires, that it must appear to the necessities of party government should so

satisfaction of the court that the applicant is soon remove Lord Herschell from the Chan

"a man of good moral character, attached to cellorship.” Then follows a very handsome

the principles of the constitution of the and appreciative compliment to the ability

United States, and well disposed to the good

All this and learning of the retiring judge. We fail

order and happiness of the perceive, however, in this notice, nor have

has become mere form. No means are used we elsewhere observed any expression of re

to satisfy the court on these points, and no gret that the highest law officer of the King

court is satisfied judicially, or personally, or dom should hold his office at the mercy of

in any other respect, that the average applithe “necessities of party government,” that

cant, who comes before him; knows anything

about the Constitution of the United States, he should go out of office with the party under whose auspices he came in.

or its principles. The truth is, the privileges The conservatism of the English people is

of citizenship have been too much cheapened nowhere more manifest than in the tenacity by these mere pro forma proceedings, and

would be more highly valued by our adopted with which they cling to forms, laws, ' and

citizens if they were less easily come by. customs, which bave outlived their usefulThere is no

reason why the Lord Chancellor should be a political officer at all, or if there is, why the functions of the office

THE CALIFORNIA JUDICIARY.-In a recent should not be divided and vested in two offi

number of this Journal, we called the attencials, the political, who might well share the

tion of our readers to the extraordinary profate of his party, and the judicial, who should

ceedings pending in the California Legislacease to be an anomaly, and hold his office

ture against the Judges of the Supreme like other judges by a life tenure.

Court of that State.

It now

appears to This is a change rather to be desired than

have been discovered that two of the expected, for notwithstanding the many re

the obnoxious judges have, since their elecforms of the nineteenth century, the nolumus

tion, by means of disease become, now leges Angliæ mutare is still too strong in the

and “for all time hereafter will be, totally in English heart to permit any change which has

capacitated, by means of physical and mennot been peremptorily demanded by urgent

tal infirmity, to discharge the duties of” the necessity or insistent public sentiment.

office. Such is the tenor, and effect of a petition to the California Legislature, signed by

David S. Terry, which was duly referred, in NATURALIZATION Laws.—A contemporary

each House, to a committee. suggests that it would be a wise measure to

The charge is sufficiently broad to cover revise, amend, and strengthen our naturali

the case, for it includes the past, present and zation laws, in view of the disorderly conduct future, and implies in the petitioner, proand destructive doctrines of the anarchists phetic powers of a very high order, for noand socialists, who are chiefly men of foreign body but a prophet could speak so positively birth. We do not see that the process indicated would mend the matter at all, for the 1 Rev. Stat. U. S. $ 2165, sub. sec. 3.

3 23 Cent. L. J. 121. Vol. 23.—No 8.



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for "all time hereafter. It is not a little the purpose (and for that only) of boring for remarkable, however, that the mental and oil and extracting it from the earth, being physical incapacity of these judges, should bound to pay a royalty in kind for the privinow be brought to the front for the first time, lege. The defendants in due time “struck as would seem to be the case. The Execu- oil,” but the well was quite indifferent and tive Committee of the State Irrigation Con- the supply of oil scanty, and required pumpvention, while agitating actively for the re- ing to bring it to the surface. A strong moval of the judges, and admitting their up- stream of natural gas, however, issued from rightness, integrity and personal character, the well, and, this the lessees secured and does not seem to have impugned their physi- utilized as fuel. The lessors regarded this cal health or mental capacity; and the Cali- gas as their property, demanded payment for fornia Bar Asociation, while vigorously pro- the quantity used by the lessees, and filed a testing against any change in the existing bill for an account and for payment. Their status, do not intimate that there have been demand was sustained by the court below, made against the judges any charges of phys- but upon appeal, the Supreme Court reversed ical incapacitation or mental imbecility. its decree and held that natural, or hydro

The whole affair is singularly discreditable carbon gas, which issues by its own force to the State. The only substantial charge from the earth, is not absolute property, but made against the judges seems to be that they the subject of only qualified property. decided the case, of Lux v. Haggin, accord- There is, however, this qualification: if the ing to the law, as they understood the law.

gas did not, of its own force, issue from the All the other charges made against them, and

well, the lessee could not, without the conthe alleged imperfection of the judiciary

sent of the lessor, pump it from the well. It system of the State, are manifestly after

is not explained by the court, and it is a little thoughts which, but for the case of Lux v.

hard to see, why the lessee should be perHaggin, would probably have never been

mitted to catch and cage the fugitive æriform heard of. And the question arises : have fluid, above the surface of the earth, and not the victors in Lux v. Haggin no rights which below it, for the title of the lessor is the same anybody is bound to respect? And if that

to the space above the face as to the botcase is to be regarded as res judicata, are tom of the well. Cujus est solum, ejus est usother people, who hold the same rights, un

que ad cælum. der like circumstances, to be deprived of

The court puts its ruling upon the ground those rights by the judgment of a fourt to be

that the gas in question is in the nature organized expressly and avowedly to decide

of air and water, and of animals ferip against them? And if so, is such proceeding

naturce; and therefore that the lessee is no due process of law?

more bound to pay for the gas that he burns, than for the air he breathes, the water he

drinks, or the deer that he shoots upon the NOTES OF RECENT DECISIONS.

leased premises.

The court assumes, upon scientific authori. ABSOLUTE AND QUALIFIED PROPERTY-LES

ties, that the supply of gas from wells of this AND LESSEE-FERÆ NATURÆ-NATURAL

description is inexhaustible, and infers that GAS.—The Supreme Court of West Virginia,

it cannot be the subject of compensation for in a recent case, adjudicated a question re

appropriation and waste, where the access is lating to the legal status of a very peculiar rightful.” We do not see that the quantity

of the gas which issues from the well is matestyle of property. The facts were, that the

rial. If the owner of the land has no title to plaintiffs held the fee of certain lands in the oil regions of West Virginia. The defend

the inexhaustable stream, why should he

have a title to that which flows only for a ants held, under the plaintiffs' grantor, a lease

hundred days. If the gas is serce nature, the for fifteen years of the land in question, for

lessor can have no more property in it,

whether there is little or much, than he can 1 Wood etc. Co. v. West Virginia etc. Co., S. C. W. Va., June 27, 186; 34 Pitts. Leg. Jour. 7.

have in the wolf or the deer. They are cer



certainly exhaustible. The rule is stated by return, being made under the same sanction the court to be that, in a case in which a and responsibility as the original, becomes trespass is committed upon anything in which the return in the case, and cannot be questhe owner has only a qualified property, as tioned collaterally by the parties to the action air, water, &c., no damage can be recovered, or their privies.4 for the trespass is damnum absque injuria. There are cases, however, in which notice And the same rule applies when no trespass to amend a sheriff's return must be given, as is committed, and the lawful action of one when a long time has passed after the return party deprives another of his whole supply of was made, or where the case has been stricksuch qualified property, as where one man en from the docket, or where a return has digging a well on his own land drains the well been made upon an execution which shows of his neighbor.

that it has been satisfied, and the amendment. would restore the liability of the defendant." Unless some such circumstances exist, no no

tice is necessary. The court says: “The Bill to Quiet Title-EXECUTION SALE OF

parties are deemed to be in court until the LAND—SHERIFF's RETURN_AMENDMENT OF

sale is confirmed.” But in this case, it may Notice—BOUNDARIES-EVIDENCE.-In recent

be observed, the original return of the sheriff case, the Supreme Court of Kansas has ad

showed no sale to confirm. On the contrary, judicated several interesting points connected with the sale of real estate upon exe

after stating Freeman's bid and his failure to cution. The facts were, that Miss Hathaway

pay, the sheriff returns the lot “not sold for had a judgment against the Blue Rapids

want of good and sufficient bids." We think Town Company, upon which execution was

that just here there is a "missing link" in issued and levied by the sheriff upon a

the chain of the court's reasoning. As, howtain town lot, which was exposed to sale, af ever, the defendants did not buy upon the ter appraisement, and struck off to W. H. H. faith of the original return, they were not Freeman, who however refused to pay the

entitled to notice, especially as it appeared amount of his bid. The sheriff returned the by the process, that the lot had been levied execution unsatisfied. At the next term of the on, was in custodia legis and was not sold court the execution plaintiff showed that only for want of bidders. They were put Freeman's bid was for her, and the sheriff upon inquiry by the very terms of the original was required to amend his return, she paid return, and that of itself was equivalent to the difference and received a sheriff's deed notice. And, of course, if the defendants for the land. Of all this, the execution de came into the matter by purchase after the fendant had no previous notice, and subse amendment had been made, a fortiori, they quently sold its interest in the property to were not entitled to notice.6 the grantors of the present defendant. This The judgment of the court, however, might suit was brought by the grantees of Miss be rested on a still broader ground; that if a Hathaway, to quiet title, against the defend judgment and execution are undoubtedly ant claiming by mesne conveyances under valid, the sheriff's deed, based thereon, canthe Blue Rapids Town Company.

not be attacked collaterally by anyone, nor The court held that the sheriff's amend the proceedings impeached by strangers.? ment of his return, although he resisted the application, and made it under the order of

4 Rickards v. Ladd' 6 Sawy. 40; Morris v. Trustees, the court, was regular and obligatory on all 15 III. 269; Dunn v. Rogers, 43 Ill. 260; Wright's Apconcerned ; that the proceeding was one be

peal, 25 Penn. St. 373; Kitchen v. Remsky, 42 Mo. 427. tween the officer and the court, is ex parte in

5 Coopwood v. Morgan, 34 Miss. 368; Thatcher v.

Miller, 13 Mass. 271; Hovey y. Wait, 17 Pick. 197; its very nature, and that no one has an abso O'Connor v. Wilson, 57 Ill. 226; Williams v. Doe, 9

Miss. 559. lute right to notice of it; that the amended

6 Baker v. Binninger, 14 N. Y. 270.

7 Freeman on Executions, $$ 334, 339, 364, 365; Rorer Brown v. Illins, 25 Conn. 594; s. C., 27 Conn, 94; on Judicial Sales, $$ 479, 480, 789, 1059: Rounsaville v Emporia v. Sodan, 25 Kan. 608.

Hazen, 33 Kan. 344; s. C., 6 Pac. R. 630; Cross v, 3 Stetson v. Freeman, s. C. Kan., July 9, 1886; 11 Knox, 32 Kan. 725; s. C., 5 Pac. R. 32; Pritchard y. Rep. 431.

Madren, 31 Kan. 38; 8. C., 2 Pac. R. 691.



Another question of some interest was con tor intended to revoke his will, and that it sidered and decided by the court: i. e., therefore followed that the presumption whether, in the absence of evidence of a might be rebutted by parol evidence, "by higher grade, it is competent to admit testi

every kind of evidence.” Lord Kenyon, mony of hearsay and reputation to establish however, in a later case, 12 held that the rule boundaries and identity of land conveyed by was founded upon a different principle; that a sheriff's deed. The lot in question was a tacit condition was annexed to the will laid off, with many others, on a recorded plat when made, that it should not take effect if as No. 11. There were no monuments to

there should be a total change in the situation mark its precise situation, and the court be

of the testator's family. This view was also low admitted parol testimony of old resi

taken by Lord Ellenborough, and at a much dents to show where lot No. 11 was always later date re-affirmed in Marston v. Fox. 14 reputed to be. And, for want of better or

And that rule, so expressed, seems to control higher evidence, the Supreme Court held that

the whole subject. The fact that the testathis kind of evidence was admissible. 8

tor afterwards acquires property has no bearing upon the question, for if the revocation

depends upon the total change in the situaWILL-REVOCATION-MARRIAGE AND

tion of the testator's family, that change Birth OF A CHILD.—The Court of Appeals of

14 Supra.

takes place when the first child of the marMaryland have recently considered the ques

riage is born, eo instanti the will is revoked tion whether marriage and the birth of a

and nothing occurring subsequently can re

instate it. child will operate as a revocation of a will.! The testator, James Spriggs, made his will in the life-time of his first wife, giving his whole

12 Dve v. Lancashire, (1792) 5 Durn. & E. 49.

13 Kenebel v. Scrafton, (1802) 2 East. 530. estate to her and to her childreu. After her death he contracted a second marriage, of which several children were the issue. Upon his death the will was offered for probate and rejected on the ground that the second mar PERSONAL LIABILITIES OF BANK OFriage, and the birth of a second set of chil

FICERS. dren, operated a revocation of the will. The appellate court sustained the decision of the


In general terms bank officers undertake There is no statute on the subject in Mary- for good faith and honesty, and ordinary land, and the ruling is based wholly upon diligence and pru dence, and are liable for common law authorities. The rule of the the consequences of their fraud, misconduct,or common law is, that marriage and the birth gross negligence in the discharge of the busiof a child, after the execution of a will, re ness of their offices. They are usually not vokes it, because it effects a total change in liable for anything less than gross negligence, the situation of the testator's family. The and are never liable for an error of judg. rationale of the rule, however, does not seem ment, unless the act is so grossly wrong as to have been very easily or clearly settled by the authorities. Lord Mansfield thought,1l that

1 United Society of Shakers v. Underwood, 9 Bush. it rested upon the presumption that the testa 609; Graves v. Lebanon Nat. Bank, 10 Bush. 23; Ger

man Savings Bank v. Wulfekuhler, 19 Kan. 60; Paine

v. Irwin, 59 How. Pr. 316; Williams v. McDonald, 37 8 Boardman v. Reed, 6 Pet. (U. S.) 328; Kenney v. N. J. Eq. 409; Bank v. St. John, 25 Ala. (N. S.) 566; Farnsworth, 17 Conn. 355; Harriman v. Brown, 8 Brannon v. Loring, S. C. Ky. 20 Cent. L. J. 57; Hauser Leigh, 697: Ralston v. Miller, 3 Rand. 44; Cox v. State, v. Tate, 85 N. C. 81; State Bank v. Locke, 4 Dev. L. 41 Tex. 1; Conn. v. Penn., 1 Pet. C. C. 496.

529. 9 Baldwin v. Spriggs, Ct. App. Md.. June 22, 1886; 5 2 Chester v. Halliard, 34 N. J. Eq. 341; Brinkerhoff Atl. Rep. 295.

v. Bostwick, 88 N. Y. 52. 10 Brush v. Wilkins, 4 Johns. Ch. 506; Christopher v. 3 Brannon v. Loving, s. C. Ky. 20 Cent. L. J. 57; Christopher, (1771) 2 Dickins, 445; Spraage v. Stone, Mutual Building Fund & C. Sav. Bank v. Bossieux, 4 (1773) Ambler, 721; see also the later case of Marston Hughes C. Ct. 387: Ackermann v. Halsey, 37 N. J. Eq. y. Fox, (1838) 8 Add. & E. 14.

356; Spering's Appeal, 71 Pa. St. 11; Gobold v. Mobile11 Brady v. Corbitt, 1778) 1 Doug. 31.

Bank, 11 Ala. 191.

tor. 17

to warrant the imputation of fraud or a want gence in conducting and in acquiring knowlof the knowledge necessary for the perfor-edge of the business of the bank. Failing mance of the duty assumed.4

in this, they become liable for the conseThese latter are the rules where the officer quences, as well as for their fraudulent prackeeps within his authority and does not vio tices, and cannot be heard to say that they late any law of the corporation, and where he were not apprised of facts, the existence of is known to be such officer, and acts and con which is shown by the books, accounts, and tracts as such, without misrepresentation as to correspondence of the bank, or which, with his power or other material matter. But the exercise of such diligence, might otherbank officers are but agents of the corpora wise have been known. 12 tion, and if they transcend or abuse their Thus, where by their gross negligence or powers, or violate any law of the corporation, misconduct, they allow the funds of the bank they are responsible to their principal," and are

to be lost or wasted, they are liable for the personally liable on contracts made beyond damages in an action by the bank, 13 or its resuch limits, as are agents of an indivi

ceiver, 14 or in case the bank or receiver redual.

fuses to sue, or the receiver is a director, by So, too, where the officer does not make it

a stockholder who has been compelled to known that he is such officer, and contracts contribute to the payment of the loss, 15 or & personally ;? or where he misrepresents the

depositor who has suffered thereby.16 authority he possesses, and thereby secures a

Must Have Accepted Office.-But to incur contract between the corporation and another

this liability, the office of director must, in party, which for any reason cannot be en

general terms, have been accepted, or someforced against it, the other party not know

thing must have been done or said by the ing of such want of power, he becomes

person sought to be charged, that would realiable on the contract. 8 And it does not

sonably lead to the belief that he was a direcmatter that he misrepresents his power in

But the fact that the owners of a bank good faith.' But an officer will not incur

published, for more than four years, an adverthis liability if the other party knew, or had

tisement containing the names of certain per, equal means with the officer of knowing, that

sons as directors, was held, in a Tennessee the act was beyond his powers; and, as ob

case, not to render them liable as such. 18 served in a former article, he is bound to

The persons elected directors need not, howtake notice of such powers as are given or

ever, have acted. 19 limited by statute, or the fundamental law of

For Acts of OthersGood Faith and Orthe corporation, 10 and, according to some au

dinary Care and Prudence.

Where the liathorities, by the by-laws themselves. 11

bility of the directors for a breach of duty is LIABILITIES OF THE DIRECTORS.

joint, the innocence or dissent of one will Generally. -The liabilities of directors form not shield him ;20 but directors of an instituno exception to the general rules above stated. It is their duty to use at any rate ordinary dili 12 United Society of Shakers v. Underwood, 9 Bush.

609; Graves v. Lebanon Nat. Bank, 10 Bush. 23; Ger* Gobold v. Bank at Mobile, 11 Ala. 191.

man Sav. Bank v. Wulfekuhler, 19 Kan. 60; Paine v. 6 Dustin v. Daniels, 4 Den. 299; First Nat. Bank of

Irwin, 59 How. Pr. 316; Williams v. McDonald, 37 N. Sturgis v. Reed, 36 Mich. 263. And see Franklin Ins.

J. Eq. 409; Bank v. St. John, 25 Ala. (N. S.) 566. Co. v. Jenkins, 3 Wend. 130.

18 Chester v. Halliard, 34 N. J. Eq. 341. 6 First Nat. Bank v. Bennett, 33 Mich. 520.

14 Brinkerhoff v. Bostwick, 88 N. Y. 52; Mutual Story on Agency, $8266, 147; Field on Corpora

Building Fund, etc., Sav. Bank v. Bossieux, 4 Hughes tions, $ 210.

C. Ct. 387; Van Dyck v. McQuade, 45 N. Y. Super. Ct.

620. 8 Field on Corporations, $ 215. 9 Story on Agency, $$ 56, 264; Paly on Agency, by

15 Brinkerhoff v. Bostwick, supra; Nelson v. Bur: Lloyd, 201; Field on Corporations, 231; Walker v.

rows, 9 Abb. N. Cas. 280; Ackerman v. Halsey, 37 N. Bank of New York, 9 N. Y. 582; Hauser v. Tate, 85 N.

J. Eq. 356; 2 Atlantic Rep. 83; contra, Conway v. HalC. 81.

sey, 44 N. J. L. 462. 10 Bank of Augusta v. Earle, 13 Pet. 587.

16 Chester v. Halliard, 34 N. J. Eq. 356; 2 Atlantic 11 Wild v. Bank of Passamaquoddy, 3 Mason, 505; Rep. 83; Maisch v. Savings Fund, 5 Phila. 30. State v. Commercial Bank, 6 S. & M. 218; North River

17 Hume v. Commercial Bank, 9 Lea. 728. Bank v. Aymor, 3 Hill, 262; Mechanics' Bank v. N. Y.,

18 Hume v. Commercial Bank, supra. etc., R. Co. 13 N. Y. 599. And see Field on Corpora 19 Ridenour v. Mayo, 40 O. S. 9. tions, 18 218, 219,

20 Bank v. Darden, 18 Ga. 318.


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