« AnteriorContinuar »
but he holds the assets as a quasi trustee, first, for the partnership creditors, and afterwards for the personal representative of the deceased partner; and if he is guilty of waste, negligence, misconduct, or other violation of his trust, a court of equity will often intervene to afford relief. Farley Spear & Co. v. Moog, S. C. Ala. Dec. Term, 1885,86.
QUERIES AND ANSWERS.*
Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their ansoors as bring as may be.--Ed.)
QUERIES. 21. A., a farmer bequeathed to his widow,B.,a life estate in his land; at her death the land itself to go to C., his illegitimate nephew, no proviso empowering B. to sell the land if C. died intestate first. C. died 17 years before B., who executed a deed and sold it, though she had merely a life estate. Properly the land would escheat to the Government-if so, would the courts or President eause her deed to be cancelled and the estate sold for benefit of the Government?
J. C. H.
QUERIES ANSWBRED. Query 50 (22 Cent. L. J. 576).- Please answer as soon as practicable through your LAW JOURNAL, the following query in view of Kentucky laws. The charter of the town B., gives to the officers thereof the power to pass ordinances; requiring the property owners along the streets of said town to curb and pave the side-walks in front of their property. The charter further provides that upon the failure of the property holder to so curb and pave, the town “may” have said curbing and paving done, and thereby obtain a lien for the cost of said pavement upon the property in front of which said curbing, etc. was erected. Query: Il said town pass the ordinance aforesaid, directing A. B. & C. to curb and pave in front of their property, and C., living upon the same street with A. and B., but nearer to the out-skirts or limits of the town, in obedience to the ordinance, did curb and pave the side-walk in front of his property. Is C. entitled to a mandamus requiring the town to so curb and pave in front of the property of A. and B.? Give authorities.
H. P. C. Answer.-This matter is reached by a mandamus. Rock v. Newark, 33 N. J. L. 129. The town has no right to refuse the performance of the law against a party having an interest in such a performance. Martin v. Mayor of Brooklyn, 1 Hill, 545. An ordinance in force is as much a law as an act of the legislature, and the latter, they were obliged to carry out. People v. Common Council of Brooklyn,22 Barb.404. Where they had decided on the act, and parties had acted under that idea, they were compelled to continue their proceedings. In the matter of Beekman St., 20 John. 269. Mandamus will lie.
author of an Index to the United States Supreme Court Reports; also indexes to the Reports of Illinois, Ohio, Iowa, Missouri and Tennessee, a digest of Texas Reports, and local works on Pleading and Practice. Vol, XV. EQUITY-ESTATES. St. Louis, Mo.: The Gilbert Book Company. 1886.
It is perfectly superfluous for us to add anything with reference to this volume to the commendation which we have so recently and so frequently bestowed upon its predecessors that have been so rapid. ly issued from the press by the indefatigable publishers. This volume is in all respects equal to the high standard of the general work, and that it is one of the most important of the whole series, is manifest from two words which appear on its title-page-Equity, Estates.
JETSAM AND FLOTSAM.
A LESSON IN TEMPERANCE.--Just as Justice Coldbath gave the fat man in a short coat thirty days for keeping a calf, three pigs, and a swarm of chickens in his front yard, a citizen in good clothes came into court. That is, his clothes were good what was left of them. They were torn in a dozen varieties of rent, and dabbled with mud and blood. His broken head was bandaged, his hat was crushed, his face disfigured. 0, but old Justice Coldbath was mad. “Well, sir,” he snarled, before the citizen could speak, “it's easy enough to see what's the matter with you! The citizen drew a sigh that sounded like a November breeze, and shook his head despondingly. “Same old story," mid the justice; "same old thing. You look like a respectable man now, don't you! You are respectable when you are fixed up, I dare say. Merchant, aren't you. Yes, I knew it. Church member, more'n likely? Yes, I thought so. Stand well in society, and never slipped up before? Yes, sir, I know you. I can pick out your case every time it comes before me. Whisky, eh? Liquor's the trouble. That's what play! the mischief with your respectable drinker, sir. Brings him to the gutter just as sure as it does the tramp. Now, sir, I'm going to reform you. I'm going to deal justly and harshly and mercifully with you for your own sake. I'll sock it to you, so that you'll never come here again. It's whisky, you say?” “Yes, sir," said the citizen, feebly; "whisky is the trouble, sir. But for whisky I wouldn't appear in this disgraceful, forlorn, painful position. But for whisky, I would be a sound, happy man, in good, clean clothes, and no headache. But for whisky " "That'll do," said the justice, “I know the whole story, and am glad you realize your situation so keenly. Maybe your contrition will take twenty days and $10 off your sentence, and maybe it won't. Now, then, how much whisky did you drink, and where did you get it?" “Ne!” the citizen said, in a faint tone of infinite surprise, “I never touched a drop of intoxicating li. quor in all my life. I am pastor of Asbury M. E. Church, and a drunken policeman assaulted me on the street half an hour ago and nearly clubbed me to pieces. I have just come to tile information and get a warrant for his arrest.” And old Justice Coldbath, who is never so happly as when delivering a temper. ance lecture from the bench to a battered inebriate, was so mad at having his lecture spoiled, that he tried the minister on three charges of conspiracy, malicious mischief, and contributory negligence, with intent to deceive and commit fraud, before he would let him go and then he tried to saddle the costs upon him.
FEDERAL DECISIONS.-Cases Argued and Determined
in the Supreme, Circuit and District Courts of the United States. Comprising the opinions of those courts from the time of their organization to the present date, together with extracts from the opinions of the Court of Claims, and the Attorneys-General, and the opinions of general importance of the Territorial Courts. Arranged by William G. Myer,
The Central Law Journal. under the impression that the decree making
the divorce absolute would relate back to the
time at which the decree nisi was rendered, ST. LOUIS, SEPTEMBER 17, 1886.
and that thereby the marriage relation was
terminated within the lifetime of the husCURRENT EVENTS.
band, and that the legal consequence fol
lowed, that the life estate of the wife, and DIVORCE AFTER DEATH. The English
the dependent remainder of the brother and courts seem to have run this summer into a
sister, were extinguished with it shoal of queer lawsuits. We noted, some
The court refused the application for a weeks ago, the “Great Rat Case,” in which,
number of good reasons, the best of which is in our judgment, the rats were magnified out
thus expressed by Lord Justice Bowen: of all due proportion to the other dramatis
"In my opinion a man can no more be di
vorced after his death than he can be married personce, and now two courts have successively tackled the problem whether a man
or condemned to death. Marriage is a union may be divorced after his death. The London
for two lives, it can be dissolved either by Law Times says:
death or by process of law. After it has “The law contains many subleties and
been dissolved by one of these ways, it cansome fictions, but we are saved from the ab
not be dissolved again—a knot which has surdity of divorcing a man after his death.
been already untied cannot be untied again.”
In the embarrassment of reasons why the Sir James Hannen decided that this could not
motion should not be granted, this way of be done, and the Court of Appeal have affirmed his decision in Stanhope v, Stanhope,
putting the case seems the neatest. 55 L. J. Rep. P. D. & A.. 37, reported this August. Why anyone should wish a man to be divorced after his death, would seem
PATENT LAW AND PATENT PRACTICE.—One mystery, but in this instance the desire was
of the dark corners of his profession, to the practical enough.”
average practitioner, is the Patent Law of the The explanation is that the deceased held
United States. This subject has been so long a life estate in £15,000, remainder to his wife
turned over to specialists, and its practice so for life, remainder to such persons as he
completely absorbed by them, that it is really might appoint by will. By his will he ap
no disparagement to even the best informed pointed his brother and sister. Before his
lawyers to say that they know very little death he had obtained, against his wife, a
about it. Nevertheless the subject is of such decree nisi of divorce, but under the statute,
great interest to the people of the United such decree could not become absolute until
States, that the character, terms and operaafter the lapse of six months. Within that
tion of the existing statutes regulating pattime he died, and the suit for divorce abated.
ents, and especially their exposition and adNow, if the person, who had been his wife,
ministration by the courts, are worthy of was his widow, she was entitled to £15,000
much more attention than they have ever refor life, and his brother and sister to the re
ceived from the profession or the general mainder, under his appointment, after her
public. death. If, however, she was not his wife
In a recent issue of the Albany Law Jourwhen he died, nor of course his widow after
nal, appears an article significantly entitled : his death, her life estate never took effect at
"Shall the Patent Laws be Repealed?” Upall, nor did that of the brother and sister,
on examination, however, it appears that the which could only commence upon the ter
gravamen of the charge consists less in demination of her life estate. Upon this theo
preciation of the patent laws themselves, as a ry at least, the executor proceeded in the in desirable and effective means of fostering enterest, as he conceived, of the parties inter
terprise, and stimulating genius, as in a very ested in the estate. He filed a petition ask bitter denunciation of the methods in which ing that the divorce suit be revived, and that
those laws are administered in the Federal the decree nisi be made absolute, evidently I Courts.
Vol. 23.-No. 12.
tend to say
From the article under consideration, it equality and expensiveness of the practice in would appear that, in patent cases in Federal | the patent courts. We have no doubt, too, Courts, all the shameful abuses of the old that some of the Federal judges carry on English High Court of Chancery are repro- things with a high hand when the mood is on duced in all their enormity. The delays are them. This comes of making them indeinterminable and inexcusable, the costs and pendent of the people whose servants they and expenses are immense, and in the end, It is a wholesome thing to have a judge as Louis XIV. said, with reference to his to know that he is liable to step down and out contest with the emperor and his allies: “It at a fixed time if he does not behave himself. is the last crown-piece that wins."
A judicial tyrant is the worst sort." How all this may really be, we do not pre We are hardly prepared to endorse the exWe tell the tale as it is told to
treme and radical remedy for the evils of the us—and to all the world, in the pages of our the patent law procedure, which is suggested contemporary, by a patent lawyer, over his in the last three sentences of this extract. own signature. We are strongly inclined to We are not as much addicted to iconoclasm the opinion that there is a good foundation
as our contemporary, and hesitate to assail for these charges, and that this dark corner a l'outrance, and without appropriate prelimin Federal jurisprudence might well bear, not inaries, so venerable and venerated an idol a little, but a good deal of illumination. The as the life-tenure of Federal judicial office. interests of the public, we ars persuaded, Milder measures are first in order, and, conwould be greatly subserved by a thorough trary to the philosophy of the spelling book investigation of the whole subject of the fable, we would use tufts of grass first to dispatent laws, and especially of the procedure lodge the naughty boy from the apple-tree, of the Federal Courts in their administration, before "trying what virtue there is in followed by appropriate legislation. We are stones.” strengthened in this opinion by our knowledge of the methods of the Federal Courts, in the matter of receivers, and their arbitrary and unreasonable extension of the authority NOTES OF RECENT DECISIONS. and functions of those officers. This matter has long been the subject of criticism in pro
PLEDGE COLLATERAL SECURITY
LEfessional circles, and has been commented on
TENDER. The Supreme Judicial with great severity by one of the most emi Court of Massachusetts recently decidnent and distinguished justices of the Su ed
some interest,' illustratpreme Court of the United States,' who por- ing the relation between the pledgor trays in the most masterly manner the abuses and pledgee of personal property as collaterand injustice which has grown out of the al security for the payment of a debt. Freeprevalent perversion of the functions of a land, the plaintiff's testator, had borrowed, receiver.
from the defendant, $24,000, and deposited It is not unreasonable to expect that a with it certain certificates of stock of the es. proper investigation will disclose the exist timated value of $28,000. Before the maturence os wrongs, equally flagrant, in the ad ity of the note, Freeland died, and afterministration of the Patent Laws, of unneces wards plaintiff, as his executor, offered to sary delays whích operate a denial of justice, pay the note and demanded back the stock and costs and expenses which amount to con certificates. The defendant refused to defiscation.
liver the certificates because they had been The Albany Law Journal, commenting on mislaid. its correspondent's communication, says: Time passed and nothing definite was “It is notorious that most poor inventors
done. The plaintiff, by the delay, lost the are cheated out of their rights by the oppres opportunity of selling the stock for $28,000, sion of capitalists, and the tediousness, in which he could have done when he offered to
1 Mr. Justice Miller, in Barton v. Barbour, 104 U. S. 137.
i Cumnock Extr. v. Institution for Savings, etc., July 3, 1886, 2 N. Enz. Rep. 538.
condition precedent to the right of the pledgor to demand the pledge. In this respect the two contracts, one to pay and the other to return the pledge upon payment, differ from a bi-lateral executory contract of two parties promising mutually to do concurrent acts. In this latter case, all that can be required of either party, is, at the proper time and place, to declare his readiness to perform his part of the contract, and to demand a like readiness and performance from the other party. Such, however, as the court decided, was not the character of the obligations of the parties in the case under consideration.
pay the note, and when finally the certificates were found and the plaintiff did pay
the note, the stock had so far depreciated that he lost $700 by the sale, that being the difference between the amount realized and that which he had been offered when he demanded the certificates and proposed to pay the note. He .therefore sued for the $700, the amount so lost, and set forth the foregoing facts in his declaration, The defendant demurred to the declaration on the ground that it did not state a sufficient cause of action. The court below sustained the demurrer, and the appellate court affirmed the judgment.
At first view of this matter, it would appear, not only that it was a case of hardship, but that both courts were in the wrong.
А little consideration, however, will show that they were right. The defendant's carelessness in losing the certificates caused the loss to the plaintiff of the seven hundred dollars, but in order to fix its liability for the loss, it was necessary for the plaintiff to take the appropriate legal steps. A legal tender was necessary to stop interest, to preclude liability for costs, and to fix upon the defendant responsibility for consequences. A mere offer to pay is not a legal tender.2 “A tender is a production and manual offer of the money, and regularly it should be counted down.,, ' To say, "your money is ready for you,” or “the money is in my pocket,” is not a tender. To fix the liability for consequences on the defendant, the tender of it should have been regularly made and averred in the declaration, and the want of such an averment was sufficient to sustain the demurrer.
The Massachusetts cases declare that a tender is necessary to enable the pledgor to maintain trover against the pledgee. The contract of pledge is collateral to the contract to pay the debt, the promise is to return the pledge when the debt is paid. Hence it is concluded by the court, that the payment (or, presumably, tender) of the amount, is a
LIBEL LIBELLING A JUDGE BRIBERY Pleading. — A recent case in the Supreme Court of Vermont? presents the novel spectacle of a judge of a Supreme Court “suing for his character,” in the vernacular, or in more technical language, bringing an action for damages for libel charging him with receiving bribes, and other like corruption in office. As the trial was not upon the merits, the end is not yet, and we will look with much interest for the denouement of the story. The case was heard upon demurrer to the declaration, and presents some points of pleading which we regard as worthy of chronicle. The demurrer was overruled, the cause remanded, and defendants permitted to plead on the usual terms.
The alleged) libel charged, in effect, that Judge Royce, being judge, chief judge, and chancellor of the State, was at the same time a partner in the law business of his son, who practiced in his court and was the attorney of a notable railroad corporation, and divided with him the fees earned by both, the son in bringing and defending the suits, the father in deciding them to the satisfaction of the client.
The court held that it is not necessary
2 Bakeman v. Pooler, 15 Wend. 637; Thomas v. Eyans, 10 East. 101; Douglas v. Patrick, 3 Tenn. 683.
3 Bakeman v. Pooler, supra; Dickinson v. Shee, 4 Esp. N. P. 68; Brady v. Jones, 2 Dowl. & Ry. 305; Dupham v. Jackson, 6 Wend. 22.
4 Jarvis v. Rogers, 13 Mass. 105; Hacock v. Franklin, etc. Co., 114 Mass. 155; Hathaway v. Fall River, etc. Bank, 131 Mass. 14.
5 Cook v. Doggett, 2 Allen, 429; Talty v. Freedman's, etc. Bank, 93 U. S. 321; Smith v. Lewis, 26 Conn. 110; Adams v. Clark, 9 Cush. 215; Rawdon v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 Bos. & P. 447; Jackson v. Allaway, 1 Dowl. & Lowndes, 919; Boyd v Lett, 1 C. B. 222.
6 Smith v. Lewis, supra.
7 Royce v. Maloney, s. C. Vt. July 15, 1886; 6 East. Rep. 459.
in declaration stating a charge of INJUNCTION TO RESTRAIN A CREDIreceiving bribes, that the (alleged) briber TOR'S PROCEEDINGS IN A FOREIGN should be described as a party to the record JURISDICTION. in the case in, and on account of which, the bribe is supposed and charged to have been
§ 1. In Personam. given. It is sufficient if the briber bad an
$ 2. English Chancery Court Foreclosing Mortgage
in Foreign Jurisdiction. interest in the case. The rule is general, $ 3. Comments of Lord Brougham.
§ 4. Same Continued. that everything must be taken most strongly
$ 5. English Cases. against the pleader, but it is not applicable $ 6. Irish Courts. to averments that are clear enough according § 7. The Principles Relied upon by the English
Courts. to reasonable intendment and construction,
$ 8. Massachusetts Cases. though not worded with absolute precision. $ 9. New York Cases. And Lord Ellenborough says:8 "Where mat
§ 10. Georgia Cases.
§ 11. Other States. ter is capable of different meanings, it does $ 12. Conflict between Federal and State Courts. not appear to clash with any rule of construc- $ 13. Garnishee Proceedings. tion, applied even to criminal proceedings, to
$ 14. Evading Exemption Laws. construe it in the sense in which the pleader
In view of the close business relations exmust be understood to have used it, supposing him to have intended his pleading to be
isting between the citizens of different States consistent with itself.”
of the Union, it often becomes a question Upon this principle, and construing the
whether a citizen of one State can he enjoined words of the declaration, the court finds suf
from proceeding against his fellow citizen in ficient certainty in the allegations, that the
another State, or in a State to which they are railroad corporation has had “large interests
both foreigners; and in all probability these involved in litigation in various suits pending questions will arise more frequently in the
future than they have in the past. in the said courts, in which this plaintiff has
§ 1. In Personam. -- When granted, presided as judge, as aforesaid, in Franklin county aforesaid, and participated as judge
an injunction, operates in personam ;of said Supreme Court as aforesaid.” Thence
it simply prevents the person restrained it follows that the court might well apply the
doing a certain act, restrains his hand;
and if he do the act prohibited, thec ourt charge of bribery as relating to those suits
is usually powerless, and can only punso pending in the courts in which the plaintiff had so presided and participated.
ish the one violating its decree by a contempt A further objection to the declaration un
proceeding. Courts also, acting upon the der consideration is, that no time is alleged
conscience of the person, often compel the when the railroad corporation had interests
defendant to perform a specified act concerninvolved in litigation. The court says that
ing propefty situated outside of its jurisdicsuch an allegation is probably a matter of
tion; a notable instance of which, in the form, and the want of it, helped by the stat
early history of this country, was the settleute of Anne, unless assigned as special cause
ment of the dividing line between Pennsylvaof demurrer. And in this connection the
nia and Maryland.? court further holds, that if several facts are
§ 2. English Chancery Court Foreclosing stated in a continuous sentence, or in several
Mortgage in Foreign Jurisdictions.—Proceedsentences connected
ing upon the theory that the Court of Chan“and,” and time is predicated of one of
cery could enforce obedience to its decrees those facts, it will be applied to each and all
when the person upon whom its hand was imof them. 10
posed was a resident of England, that court has foreclosed mortgages in the colonial pos
sessions of that 8 Rex v. Stevens, 5 East, 244, 256.
country, and enforced 9 Higgins v. Highfield, 13 East, 407. See, also, Bow- their payment. Thus a mortgage given dell v. Parsons, 10 East, 359.
in the island of Sark 10 Taylor v. Welsted, Cro. Jac. 443; 1 Chitty Pl. 258.
13 Pom. Esq. Jur. $ 1360.