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Supervisors -- Correction by Clerk.-- Parol evidence, offered for the purpose of showing that what a party claims to be a record is not a record, is properly admissible, and is not parol evidence for the purpose of contradicting a record. A clerk of a board of supervisors is not clothed with power, of his own account, to correct a record of the proceedings of the board, even if it is shown that he made the correction in accordance with the true state of facts. Dyer v. Brogan, s. C. Cal., 'July 13, 1886; 11 Pac. Rep. 589.
22. FRAUD.- Sale of Goods-Intent Evidence
Creditor.-To render a sale of chattels void on the ground of fraud, the vendee must have bought with the intention of never paying for them, and such dishonest intention must have actually existed at the precise time of purchase, and not be a mere afterthought. This fraudulent intention can seldom be established by direct evidence, and is therefore allowed to be shown by proof of circumstances from which the jury may infer such intent. The circumstances of this particular case reviewed, and held to show fraud sufficient to avoid the sale. As against a vendor thus deceived and defrauded, an attaching creditor cannot be deemed an innocent purchaser for value. Taylor v. Mississippi Mills, S. C. Arkansas, July 3, 1886; 1 S. W. R. 283.
bond being made co-sureties with those on the first. The principal in the third bond is the same as the principal in the other two, being the one debtor who is primarily liable, and for the settlement of whose accounts with the complainant, the bill is filed. He is thus, in a certain sense, a ligament or connecting link between all the bondsmen. The demands against the two sets of sureties, it is true, are to some extent, distinct claims, but they are not entirely disconnected in view of the particular facts of this case. The collector is averred to have kept one running account extending all the way through his last two official terms, applying the funds collected miscellaneously without regard to any proper appropriation of payments. The sureties on each bond are interested in the taking of the account, and in the proper adjustment of these payments, and of correction of alleged sums in the account. The question of multifariousness is often one of policy and convenience, and therefore rests largely within the discretion of the court. It is sutficient to sustain a bill against such a charge that each defendant has an interest in some one matter common to all the parties. The objection is discouraged when sustaining it might lead to inconvenience or defeat the ends of justice. Filing separate bills agaiust each set of sureties in this case, it seems to us, might lead to great inconvenience in view of the peculiar interest each surety has in the taking of the account, and the correction of the alleged errors of credits and payments.” Lott v. Mobile
County, s. C. Ala. Dec. Term. 1885-86. 19. EVIDENCE-Contract in Writing-Parol, to Al
ter or Enlarge-Conflict of Laws--Conditional Sale-Lex Loci Contractus-Estoppel.- A writing showing an absolute sale of a horse cannot be changed or enlarged by parol evidedce to the effect that such sale was in fact conditional, as against an attaching creditor who had been shown the writing. When certain chattels were sold in New Hampshire under a parol condition that the title should remain in the vendor until they were paid for, and it appeared that such conditional sale was valid by the laws of that State against attaching creditors or subsequent purchasers, such title will be upheld in Vermont, when the vendor has done nothing to estop him from setting up his title. Dixon v. Blondin, S. C. Vt. August 23, 1886;
5 Atl. Rep.514. 20.
Indictment-- Trial-Criminal Law-People not Compelled to Produce all Witnesses Indorsed--Reasonable Doubt-Circumstantial Evidence-Instructions-Credibility Admissions Repetition of Instructions.-The people are not compelled to produce all accessible witnesses whose names are indorsed on the indictment, and to give the defense an opportunity to cross-examine such witnesses. The reasonable doubt which the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to any particular fact in the case. This rule, as to particular facts, applies, a fortiori, to circumstantial evidence introduced to corroborate direct testimony to the principal fact in issue. Instructions on the credibility of witnesses, and upon the effect of admissions, reviewed and approved. The court need not give additional instructions upon points already fully covered by instructions given. Bressler v. People, S, C. Ill. Aug 15. 1886;
8 N. East. Rep. 62. 21. EVIDENCE.--Records - Parol Evidence Affecting
-Admissibility--Counties-Records of Board of
Statute of Frauds-Guaranty-Memorandum-Parol Evidence.--It is sufficient to satisfy the statute of frauds requiring that the memorandum of guaranty shall show who are the parties to the contract, if that fact appears by description instead of by name; and if the promisor or promisee is described instead of named, parol evidence is admissible to apply the description and identify the person meant. Jones v. Dow, S. J. C. Mass., .
June 30, 1886; 6 East R. 408. 24. Statute of Frauds—Part Performance
Estoppel-Acts in Reliance on Oral Agreement.The underlying principle upon which courts enforce oral agreements within the statute of frauds, on the ground of “part performance,” is that when one of the parties has been induced to alter his situation, on the faith of the oral agreement, to such an extent that a refusal to enforce it would result, not merely in the denial of the rights which the agreement was intended to confer, but in the infliction of "an unjust and unconscientious injury and loss” upon him, the other party will be held estopped, by force of his acts, from setting up the statute. The acts constituting “part performance" must have been done in reliance upon and in pursuance of tue oral agreement, and be related to and connected with it, but are not confined to doing what the contract stipulates; that is, “part performance," strictly so called. The acts must have been done by and to the prejudice of the party seeking to assert or enforce the contract, or those under whom he claims title; but any act which the party to the contract might have asserted and relied on as part performance may be asserted and relied on by those claiming under him. Brown v. Hoag, S. C. Minn., June 7, 1886; 29 N. W. R. 135.
25. HOMESTEAD.- Abandonment. The question
whether or not a homestead has been abandoned, turns mainly on the real intention of the homesteader, and is purely a question of fact. Circumstances reviewed, and held not to constitute
an abandonment. Bouman v. Watson, S. C. Tex.,
June 6, 1886; 1 S. W. R. 273. 26. HUSBAND AND WIFE.- Abandonment - Com
munity Property --Action--Intervention-Homestead - Eremptions--Rights of Abandoned Wife. -The abandonment of a wife by her husband perfects all her rights in and to the community property as effectually as if he were dead. In such cases the abandoned wife may intervene for her own protection, in actions brought against her absconding husband by his creditors. An abandoned wife may claim a dwelling-house, even though built on leased grounds, and being a mere chattel, as an exempt homestead. Cullers v. James, S. C. Texas, June 25, 1886; 1 S. W. R. 314.
liberty to abandon the contract, and sue for reasonable compensation for work actually done. There is no error in striking out the portion of a defendant's testimony which purports to declare the intention of the plaintiff concerning the matter in dispute between them. In an action on a quantum meruit for personal services, the defendant cannot set off damages arising from his being compelled to surrender to his landlord his lease of the premises on which the plaintiff had been engaged to work, because the latter had violated his contract, such damage not being a direct consequence of the plaintiff's violation of his contract. A party is not injured by cross-examination of a witness to show that ill-feeling at one time existed between them, if the witness, on the direct exam. ination, has testified favorably to the party. An employee dismissed by his employer for good cause is not entitled to any compensation for services rendered since the last day upon which a pay. ment became due to him under the contract. Hartman v. Rogers, S. C. Cal., May 28, 1886; 11 Pac. R. 581.
27. INTEREST.-Rule for Computation- Mixed Mu
tual Demands – Costs---Appeal – Apportionment of Costs.-i'nder a complicated state of facts (set forth in the opinion), it was held that, in the computation of interest between parties who had mixed demands against each other, annual rests should be made on the first day of January in each year following years in which items of account appeared, and simple interest computed on the amount at each rest from the date of rest to date of report, except in cases where specitic payments had been made, and dates given on certain promissory notes that defendant had given or assumed for orator, in which cases interest should be computed from date of such payment; and on the said promissory notes, which bore annual interest, annual interest should be computed until the maturity of said notes, and simple interest should then be computed on the amount of each annual payment from date of payment to date of report, assuming that principal and interest on said notes had been paid according to their terms. Only in exceptional cases will the Supreme Court disturb an apportionment of costs made by the chancellor. Flannery v. Flannery. S.
C. Vt., Aug. 21, 1886; 5 Atl. R. 507. 28. MASTER AND SERVANT.-- Apprenticeship-Suit
for Services after Twenty-One, the Time of Majority being in Doubt.- The plaintiff, A., while a minor in the reform school, was taken by B., the defendant, as an apprentice, under an invalid agreement of apprenticeship; B. to receive A.'s services during minority, etc. He remained several years in B.'s service, then he absconded, was re-arrested, re-committed to the reform school, and was remitted to B., as B. testified, at A.'s own earnest request. The evidence left it in doubt when A. finally left B.'s service, or when A. was of age. Sentences to the reform school were limited by law to minority. In an action by A. against B. for services rendered after A. claimed to have reached majority: Held, that he could not recover if he continued to work for B. after arriving at twentyone years of age without a specific contract, or without notice to B. he should expect wages. Burrows v. Ward, s. C. R. I., July 10, 1886; 5 Atl.
R. 500. 29.
Contract for Personal Services-Action on Quantum Meruit --Evidence--Competency-- Testimong Concerning Intention of Anothpr--Set - Off and Counter-Claim-- Witness-- Admissibility of Evidence of Hostility.--Where, in the case of a contract for personal services, the master denies the servant's rights, under the contract, and attempts to rescind it, the latter is at
Injury to Servant-knowledge of Danger-Master Directed Work.-Where the mas. ter undertakes to direct specifically the performance of work in a particular manner, the court will not say, as matter of law, that the servant is not justified in relying to some extent upon the knowl. edge and carefulness of his employer, and in relaxing somewhat the careful examination and vigilance which otherwise would be incumbent upon him. Plaintiff, a servant in defendant's employ, had driven a load of hay to defendant's barn, when he was personally directed by defendant to drive through a gateway for the purpose of unloading. In doing so, plaintiff was struck by a sign over the gate-way and injured. There was evidence tending to show that defendant was familiar with driving such loads through the gate. way, and that the plaintiff was not; that it was not apparent to the plaintiff from his position, and while managing the horses, that he could not drive through with safety, and that the defendant from his position had a better opportunity than the plaintiff of personally observing the fact. Held, that the question of negligence, and of defendant's liability, were properly left to the jury. Haley o. Case, S. J. C. Mass., July 3, 1886; 6 East. R. 411.
Right of Discharged Railroad Employee to Sue for Wages.-A railroad em. ployee, upon being discharged from service, is en: titled to immediate payment of the wages due, and may maintain an action for the recovery of the same; the evidence failing to show a general custom among railroads to defer payment, or notice to the plaintiff of a regulation or usage of his employer to do so. Thompson v. Minneapolis, etc. Co., S. C. Minn., July 13, 1886; 29 N. W. R. 148.
32. MORTGAGE.-- Foreclosure-Writ of Entry--Ad. ministrator as Party-Security for Bond to Sup. port-Breach-Demand by Widow UnnecessaryDower-Mortgaged Lands. The interest and title of a mortgagee in real estate vest, upon his decease, as assets in his executor or administrator, who is the proper party to any proceeding for the foreclosure of the mortgage. Where suit is brought to foreclose a mortgage given to secure a bond for the support of a husband and wife during their natural lives, a breach of such bond must be
shown, but such breach need not be shown to have occurred during the life-time of the husband, who died first. It is sufficient if there has been a breach since the death of the husband, and before the commencement of the suit. It is not necessary, to entitle a recovery in such case, to show, that any claim has been made by the widow for her support on the administrator of the deceased mortgagor before suit commenced. The widow of the deceased mortgagee, before dower has been assigned or set out to her, has no such legal estate in the premises as would entitle her to convey any part thereof to a third person as against the administrator of the deceased mortgagee. Plummer 0. Doughty, S. C. Me., August 6, 1886; 5 Atl. R. 526.
any undertaking which may be implied onthe part of the vendor as to the merchantable quality of the logs is to be treated as a condition, rather than a warranty as to defects which were, or, being obvious upon inspection, might have been, discov. ered when the logs were delivered in performance of the contract; and the receiving and retaining of the logs by the vendee under the contract has the effect of a waiver of such implied condition as to quality. In a purchase of specific defined property no warranty is implied from the mere fact that the vendor knew that the vendee intended to use the property for a particular purpose. Thompson v. Libby, S. C. Minn. July 15, 1886; 29 N. W. Rep. 150.
- In a
33. NEGLIGENCE.-Evidence.-In an action against
a railroad company for negligently burning plaintiff's barn by fire escaping from the smokestack of an engine, where it is not shown that the fire was caused by either of two engines which were claimed to be in perfect order, but it is shown that it may have been caused by another engine having a hole cut in its fire-screen and not in good order, it is a question of fact for the jury which engine caused the fire. Where there was a conflict in the evidence as to whether the engine which caused the fire was sufficiently guarded by a screen on the smokestack which would prevent coals of fire from escaping, a non-suit was properly refused. Seeley v. New York, etc. Co., N. Y. Ct. App., June 8, 1886; 3 Cent. R. 743.
34. OFFICES-Salary-In England offices are incor
poreal hereditaments. In this country a public office cannot be the property of the incumbent, but belongs to the people. Oficers are trustees for the public. The legislature may abolish an office (of legislative creation), but courts must presume that an office, while it exists, is necessary. Although no special statute exists providing that officers shall hold over until their successors are chosen, yet a public officer, on the expiration of his term without appointment of his successor, may and should continue in the discharge of the duties of the office, and is entitled to the salary for the additional time he serves. Robb v. Carter, Md. Ct. App. May 27, 1886; 3 Cent. Rep. 730.
37. Negligence-Evidence- Witness
suit upon a promissory note, where plaintiff was vendee of certain real property with power of sale thereof, the proceeds of which, when sold, were to be applied to the payment of the note; and the defense set up was that plaintiff had been negligent in the sale of the property, and, owing to such negligence, the property failed to bring enough to pay the note; where it appears plaintiff offered the property for sale before maturity of the note, but did not get a bid for it, and afterwards sold it for an amount which, after deducting the amount of incumbrances thereon, was not sufficient to pay the note; held, that plaintiff might recover the amount still due on the note, less the amount paid to defendant from the proceeds of the sale of the property. As a general rule a party will not be permitted to impeach the general reputation for truth, or to impugn, by general evidence, the credibility of a witness he has called; the party may show that the evidence has taken him by surprise, or is contrary to what the party had reason to believe he would testify to. If the witness has made to the party who cails him, or the attorney of such party, a statement totally variant from his sworn testimony, and on the faith of such statement he has been called, he may be asked if he made such a statement; and if he denies it, such statement may be proved, not for the purpose of impeaching his general character, but for the protection of the party calling him, in the discretion of the judge. Smith v. Briscoe,
Md. Ct. App. June 24, 1886; 3 Cent. Rep. 733. 38. VENDOR AND VENDEE-Contract-Strict Per
formance-Election.- A contract for the sale of land prescribed definite times for the payment of the purchase price, and contained terms which, standing alone, imported an agreement for strict performance, and that the times specified for payment should be deemed to be of the essence of the contract; but it further provided that, in case of any default in such strict performance, the vendor should have the right to declare the contract null and void. It was further agreed that all overdue payments should bear an increased rate of interest. Held, that the contract gave to the vendor the election to determine whether strict performance should be required; that, in the absence of a determination to require strict performance, and of reasonable notice of such election, the mere de. fault of the vendee to make the specified payments would not operate to extinguish his equitable rights; and a subsequent declaration of forfeiture by the vendor, without notice and reasonable opportunity to make payment, was also ineffectual. O'Connor v. Hughes, s, C. Minn. July 12, 1886; 29 N. W. Rep. 152.
35. RAILROAD COMPANIES-Fires From Locomotive
Sparks-Insufficient Averment.- Where a complaint states that the defendant, in the “month of May,” negligently permitted fire to escape from its engines, whereby property of the plaintiff was injured, and assigns no reason why the plaintiff cannot state the time with more certainty, the complainant may be required to make the complaint more specific. Where no charge of negligence in permitting dry grass to accumulate upon the right of way is made by the pleading, it is error to submit the cause to the jury upon that issue. Melvin v. St. Louis, eto. Co., S. C. Mo. June 7, 1886; 1 S. W. Rep. 286.
36. SALE-Warranty, Executory Contract — Im
plied Condition-- Intention to Use Property for Particular Purpose.- A contract for the sale of a specified lot of logs, at a stated price per 1,000 feet to be transported by the vendor to a distant place of delivery, and there measured, delivered, and paid for, considered executory, and not an executed sale. At the time of making such an executory contract, the logs being so situated that they could not then be inspected by the vendor,
Answer.-An agreement to accept a less sum in satisfaction of a greater will not operate as a defense against the original claim. Proof of partial payment of the sum agreed on, readiness to pay, or of a tender and refusal, is not sufficient. R.'s defense is not good. An acceptance of all is necessary. Frost v. Johnson, 8 Ohio 393; Noe v. Christie, 51 N. Y. 279; Simmons v. Clark,56 I11.96; Russell v.Lytle,6 Wend.390; Person v. Civer, 29 How. (N. Y.] 432; Smith v. Keels, 15 Rich. 318.
S. S. M.
39. WILL-Contingent Devise or Bequest—Testator gave his property of every kind to trustees, inter
upon death of his son to convey the estate in equal shares to his son's wife and children, and, upon death of son leaving no wife or child, for the use of a church. Held, upon death of the son leaving a widow, but no child, none having been born to him, that the church took nothing, the contingency upon which it was to take not having occurred, but that the widow took the entire residue of the estate. Morse v. Church, S.
C. R. I. June 26, 1886; 5 Atl. Rep. 501. 40.
Devise- Construction.-A will must be construed with reference to the law as it existed when the will took effect. Where a devise is to A., and “if he dies without issue," then over, these words, according to their settled legal construction, import a general or indefinite failure of issue; and, whenever found in a will, must be taken in their technical sense, unless there be something clearly demonstrating a different intention on the part of the testator. Under such devise, where the first taker takes the fee, the devise over is void because the contingency is too remote. Comegys v. Jones, Md. Ct. App., May 27, 1886; 3 Cent. R. 735.
THE AMERICAN DECISIONS, containing the cases of
General Value and Authority Decided in the Courts of the Several States from the Earliest Issue of the State Reports to the Year 1869. Compiled and Annotated by A. C. Freeman, Counsellor at Law, and Author of "Treatise on the Law of Judgments,” Cotenancy and Partition, “Executions in Civil Cases," etc. Vols. LXXV and LXXVI. San Francisco Bancroft-Whitney Company, Law Publishers, Booksellers and Stationers. 1886.
QUERIES AND ANSWERS.
These two volumes are fully up to the standard of the valuable series of which they form a part. We could hardly say more in their favor, or add to the commendations which we have bestowed on their predecessors. If there were nothing else to be said in favor of the collection, the well established reputation of the editor, Mr. Freeman, as a jurist of rare ability and profound learning, would be an ample warrant for the favor of the profession.
| 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 answers as brief as may be.-Ed.)
QUERIES. 23. A. lives in Louisiana, but does a mercantile business in Mississippi, through a resident agent, B. B. employs a salesman, C., for A. Can D., a Mississippi creditor of C.'s garnish the non-resident A.,by service of process on B. Again: A owes D., by promissory note (same parties). Can D. garnish A. by service on B.? Cite authorities,
J. B. S. Osyka, Miss., July 9, 1886.
JETSAM AND FLOTSAM.
QUERÍES ANSWERED. Query 43.—[22 Cent. L. J. 430].-A. sells B. and C., who are partners, a lot of lumber at $10 per 1000 feet, and takes their note for the amount. B. and C. dissolve partnership, C. assuming the payment of all the firm debts, of which A. had notice. After the dissolution C. dies, and his only heir, his father, takes charge of his assetts and undertakes to settle his debts. A. presents the note of B. and C. to B. for payment, and B. refers him to C.'s father, stating that he will pay all the firm debts. C.'s father refuses to pay the note, stating as an excuse that the measurement of the lumber was not correct, falling considerably short of the measurement made when the note was given, but proposes to pay a smaller amount than the note calls
or if A. will take it for satisfaction of the note. A. hesitates, but finally agrees to take it in order to avoid a law suit, and in furtherance of that agreement, C.'s father makes A. a small payment, promising to pay balance in a few days. He never paid balance, and after the expiration of six months, A. sues B. on the note of B. and C., and B. sets up as a defense the agreement of A. and C.'s father, and the part performance thereof, and tenders A. the balance due on the agreement. Is A. bound by the agreement he made with C.'s father? Cite authorities.
WILL P. FEAZEL.
ANTI-VACCINATION- The London Law Times,says: -“The state of things brought about by the antivaccination movement at Leicester grows more and more discreditable to the administration of the law in this country. Recent statistics show that during the last year only 20 per cent. of children born in the town have been vaccinated, while the total number of persons openly defying the law is about 10,000. The most serious aspect of the case, however, lies in the fact that the guardians have definitely ceased from proceeding against defaulters. In other words, a local administrative body, charged with the duty of enforc. ing the law of the land, take upon themselves to override the law by refusing to enforce it. For aught we know, the vaccination acts may be as peroicious as the people of Leicester suppose. But while they remain on the statute-book and are enforced in one part of the country, they ought to be enforced in all. No civilized State can afford to have the observance of its public statutes made a matter of local option."
The "guardians" at Leicester are certainly much to blame for not enforcing the law-if they can, but with ten thousand fools resisting their authority they prob. ably need reinforcements. There is however, or is said to exist, a public functionary who is even more remiss than the "guardians," to-wit, the fool-killer. If there is such a person, and Leicester is within his jurisdiction, as surely it ought to be, his opportunities there for exercising his peculiar functions are very extensive and particularly tempting.
The Central Law Journal. Marshall, if they believed that his nomination
would hurt the party.
We do not believe that the appointment or ST. LOUIS, OCTOBER 1, 1886.
election of judicial officers, whether by a
governor or the legislature, or the people, CURRENT EVENTS.
can ever be made independent of the control, partial or absolute, of party politics.
As long as political parties exist, they will How JUDGES SHOULD BE CHOSEN?_This is
strive to control every civil office of governone of that class of questions which are
ment to which is attached, either honor or easier asked than answered, and prudent peo
profit. No office is so high, and none so low, ple usually hedge their solutions of them with
that the political party will not seek to render an ample stock of provisoes and conditions.
it, or its incumbency, a source of party capiIn the United States we have tried, and are
tal. There are differences in degree of trying, three modes of selecting judges: Ap
course, party lines are not drawn as strictly pointment by the executive, "by and with
in an election for the office of circuit judge as the advice and consent, &c.,” election by the
for a member of congress, but the principle legislature, and election by the people. To
is the same, and with few exceptions, the each of them have been made grave objec
democrat votes for the democratic candidate tions which, upon analysis, will be found to
for judge, and the republican for the repubamount to the same thing, to wit, that the
lican candidate. qualities most likely to secure a judicial posi
We do not consider this a pessimistic view tion, are not the qualities essential to a good
of the case, we regard it as a necessary and judge. Whether the Governor appoints, or
natural condition of popular government. If the Legislature elects, they say that the er
it is an imperfection of our system, it is inmine is too apt to be the reward of anteced
separable from it. Our experience of the ent political partizan service, not at all connected, nor indeed consistent, with the pos
past hundred years, has surely taught us that session of the essential and indispensable judicial purity, integrity, and ability, are
consistent with free institutions, and during judicial attributes. If the people elect, there is the same objection, except that the politi
all that time our judges have been chosen in cal service is prospective.
one of the three modes we bave indicated,
A party convention nominates for judge, a man who can
and each of them is necessarily infected with bring some strength to the party, who can
political influences. carry something, and not have to be himself
Which of these three modes of selecting carried. The party wants for such an office judicial officers is best, we do not presume to a man whose manners are popular, who has
say, but will merely remark. that although in personal “magnetism,” who can gain votes many States changes have been made from for the party. If, in addition to this, he pos
executive appointment, and legislative elecsesses the integrity, learning, and mental tion, to popular vote, the reverse process, so power essential to the proper discharge of far as we are advised, has never taken place, judicial functions, so much the better. To there are nulla vestigia retrorsum. Whatever do them justice, we believe political parties universal suffrage has once obtained it has usually do their best with the material at never relinquished. This in a great measure their disposal, and nominate for judges the
is the result of the prevalent sentiment, that. men who are best fitted for the offices, pro
government should be “of the people, for the vided, always, that besides that fitness, they people, by the people.” The fact remains, possess sufficient personal popularity to keep
however, that the judges of those States in them abreast with the ticket.
which they are chosen by universal suffrage, Party managers are eminently practical
have never suffered in the comparison, other men and take a very practical view of these
things being equal, with the judges of those
States in which the older and more conservamatters. They would not nominate for a
tive modes are retained. judicial office a Justinian, or a Kent, or
We therefore think that public policy does Vol. 23.–No. 14.