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36. VENDOR AND VENDEE.- Vendor's Lien – How
Created-How Waived- Vendor's Lien as Security for a Note-Title of Vendor.-A vendor's lien is given by law when one person sells land to another on a credit, and may be waived by such facts as show that the seller relies on other security, or relinquishes his right to the security which the law gives him; but the absence of knowledge that the law gives such security, or a mere secret intention not to claim it, does not affect the right. To prove that a vendor's lien exists to secure the payment of a note, it must appear that the vendor has a valid title to the land. Houston v. Dickson, S. C. Texas, June 14, 1886; 1 $. W. Rep., 375.
- Equity-Injunction and Account - Obscure and Irregular Accounts—A bill for account and provisional injunction to prevent interference with partnership assets will lie at the suit of one partner, notwithstanding the accounts of the partnership are irregular, and the evidence concerning them is obscure and conflicting. Slobig's Appeal,
S. C. Penn. May 3, 1886; 5 Atl. Rep. 670. 31. PLEADINGS.- Amendments When Allowed
Striking Out.-Where the filing of an amended pleading is necessary to enable a party to prove any cause of action or matter of defense in his case, it is error in the trial court to deny the application of such party to file such amended pleading at any time after the filing of a defective pleading, before or after trial. But otherwise where such amended pleading is not necessary to the admission of material testimony. Words in a pleading, other than the formal parts thereof, which are not necessary as the foundation of pertinent and proper testimony to prove the action or defense, or some part thereof, of the party filing such pleading, may be stricken out on motion at any time before the trial. Otherwise where such words are necessary as a foundation for such testimony. Hale r. Wigton, S. C. Neb., Sept. 8, 1886; 29 N.
W. R., 177. 32. PRACTICE.— Withdrawing Exceptions – Motion
for New Trial.-An agreement of parties, withdrawing a pending bill of exceptions and providing that judgment shall be rendered on the verdict, does not prevent the excepting party from availing himself of a motion for a new trial on the ground of newly-discovered evidence. Emery v. Mayberry, S. C. Maine, Aug. 7, 1886; 6 East. Rep., 625.
37. WAREHOUSEMAN.-Evidence. The implied un
dertaking of a warehouseman is, not that he will at all events keep the goods safely, but that he will use reasonable and ordinary care and diligence in keeping them. In an action brought to recover damages caused to goods while stored in a warehouse, the burden of proof is upon the plaintiff to show that the damage was caused by the negligence of the warehouseman. Cass V. B. & L. R. R. Co., criticised. Willett v. Rich, S. J. C. Mass., July 6, 1886; 6 East. Rep., 660.
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 answers as brief as may be.-Ed.)
33. SALE.- Pleading Article or Machinery to be
Satisfactory-Discretion of Purchaser.-Where a purchaser of an article or machine is sued for the agreed price, it is a sufficient answer to the complaint that the thing to be delivered under the contract was to work satisfactorily to him, and that he refused to accept it, as he knew, upon investigation, that it would not work to his satisfaction. Exhaust, etc. Co. v. Chicago, etc. Co., $. C. Wis.,
May 15, 1886; 22 Rep., 389. 34. TRADE-MARK.—Where marks, such as arbitrary
combinations of figures, iodicating style or quality also indicate origin, they may be a subject of trade-mark and their use as such protected. The sight of a familiar symbol inducing one to purchase goods to which the symbol does not properly belong, to the injury of him who devised it to mark his own goods, is the gravamen of the law of trade-marks. A complainant in a suit to restrain the use of a trade-mark cannot maintain an exclusive right to the use of certain numbers which had been used by a third person and become known to the trade as applied to the same styles of goods before complainant used them. American, etc. Co. v. Anthony, etc. Co., S. J. C. Mass., July 3, 1886; 2 N. Eng. Rep., 630. 35. TRESPASS.- Quare Clausum-Measure of Dam
ages.-In trespass quare clausum for felling the defendant's trees across the line fence, and cover: ing the plaintiff's land with brush, the measure of damages is not confined to the expense of remove ing the brush, nor is it limited to the value of the land incumbered. Hutchinson v. Parker, S. C. of N. H., July 30, 1886; 5 Atl. Rep., 659.
QUERIES. 25. A., the owner of a newly erected building, leased the same to B. for one year. B., under arrangements with a gas
ompany, had pipes laid connecting a portion of the building with the company's mains, and a gas meter put in; but also, without the knowledge or consent of either A. or the company, procured another pipe to be laid connecting other parts of the building with the company's main. During his term he used gas through all the pipes, but the pipe surreptitiously laid, passed the gas around the meter.. At the end of the term A. entered into possession and consumed the gas in all parts of the building. This has continued for more than a year. At the end of each month the company has regularly presented its bill for gas consumed by A., according to the meter, and all were paid by A. Both parties being ignorant of the fact that any gas, not registered by the meter, had been consumed, no payment has been made therefor. But the company, having now learned the facts, sues A. in assumpsit. Queries: Is A. liable? Does the law imply a promise when neither party, at the time, knew that the company was furnishing or that A. was using the gas? What, in this action, is the effect of the monthly settlements? If the form of the action be inappropriate, what kind of suit would be proper? Please give authorities.
QUERIES ANSWERED. Query 38. [22 Cent. L. J. 334.)-A., B., C., D., & E. employ a lawyer, G., to render certain professional services. After the work is done, G., the lawyer, asks A., B., C., & D. for their joint and several note in payment. This they refused to give. But he urges and tells them that he will procure E's signature, and in no event shall they, A., B., C. & D., be liable for more than a fifth (1-5) each, of the whole amount. They
consented that he was not entitled to the face of the note; on the contrary, he only consented to the terms proposed to avoid a law suit. The case seems to fall under all the rules applicable to an accord satisface tion."
pay the one-fifth each. E. never signs. In a suit by G., the lawyer, v. A., B., C. & D., for the other fifth, can they show the collateral agreement by oral evidence? I can find no cases exactly in point, the nearest being Miller v. Gambie, 4 Barb. 146; Ely v. Kilborn 5 Denio, 514; Ande v. Dixon, 6 Exch. 869. Please cite cases, or authorities.
N. B. JONES. Athens, Ga.
Answer.-The inference from the latter part of the query and the citations is, that the note was signed, though it is stated that the parties refused to sign, and that the suit is on the note. The case cited of Miller v. Gambie seems to sustain the proposition. It is there decided that if a party signs a note upon condition that another person shall also sign it, he is not liable on it as between the original parties unless the condition is complied with. It has been held in a number of cases that if the delivery was conditional, that is, if the written instrument was not to take effect till the happening of a certain event, such as the signing by another party, the suit thereon may be defeated by showing that such event has not happened, the agreement being by parol. But evidence of a parol agreement to avoid a written instrument by a subsequent event is not admissible. Goddard v. Cutts, 11 Maine, 440; 2 Phil. Ev. (Cowan, Hill & Edwards, notes), notes 495 and 502. This seems to be approved in the cited case of Ely v. Kilborn, 5 Denio, 514. The consideration in such cases may always be examined into, and this is held to involve an examination of all the facts and circumstances attending the transaction, so far as the point of consideration is concerned. Bern hard v. Brunner, 4 Bos. 528. The terms on which a check was received were allowed to be shown by a let. ter written by the holder four days before the note was made. Denniston v. Bacon, 10 Johns. 198. In a recent case in Pennsylvania it is stated, that the admissibility of such a defence is “so well settled as to preclude discussion." Walker v. France, 22 Rep. 213. S. S. M.
TACT IN COURT.-Containing sketches of cases won by
by skill, wit, art, tact, courage and eloquence. With practical illustrations in letter of lawyers giving their best rules for winning cases. Third Revised Edition. By J. W. Donovan, Authors of Modern Jury Trials," Trial Practice," and Trial Lawyers." Rochester, N. Y. Williainson & Higbie Laws Booksellers and Publishers, 1886.
This little volume, now in its third edition, is well worthy of the favor it has met at the hands of the profession.
There are more than sixty separate articles each one replete with that practical wisdom, and peculiarly shrewd hard sense for which the author, as most of our readers know, is so remarkable. Each of these several essays teaches at least one, and often many more lessons in the practical conduct of professional life which can be learned nowhere else, except in the costly and disastrous school of actual personal experience. And those lessons are taught in such a manner that no one who takes up the book can fail to read it, and no one who reads it can fail to remember much that will be of great service to him throughout his professional career.
Mr. Donovan as might be supposed addresses himself chiefly to the young practitioner, but there are few men in the profession so old or so experienced that they cannot learn much from this unpretentious little volume.
The articles are, from the necessity of the case and the character of the subject matter unconnected with each other, but each is complete in itself and none fail to teach in apt language the lessons it was intended to inculcate. Mr. Donovan's style is good, his anecdotes, which are frequent, are well told, and pertinent to the subject under discussion.
"The cheerful sage when graver methods fail, Conceals the moral in a pleasing tale."
JETSAM AND FLOTSAM.
In the sub-joined communication, a correspondent criticises the answer of S. S. M. to Query No. 43, of Volume 22. The question, with the answer, appears on page 312 of the current volume. Our correspondent says:
“It seems to me that the answer of S. S. M. to Query 43 is not good. His statement of a general proposition of law is correct, but he fails to observe that the agreement to take a less sum than the face of the note, is based upon the ground of a partial failure or want of consideration. Here is an agreement as to the actual amount due, and not an agreement to take less than the amount due and owing.”
W, H. B. Lawrenceburg, Ind. To this S. S. M. replies as follows:
“A claimed one amount and C's father alleged that a less amount was due. A. agreed to take the less amount. It then became a case of accord and satisfaction, which is detined as the settlement of a dispute or the satisfaction of a claim by an executed agreement between the party injuring and the party injured. Bull v. Bull, 43 Conn. 455; 6 Waits Act. & Def. 408. . The money was to be paid to A. in a few days, which was not done. So the satisfaction was not made, and A. was not bound by the accord (see authorities cited in answer), and was relegated to his original rights on the note. We cannot see, from the case stated, that A.
HE KNEW TIIE LAW-A Scotch cobbler, described briefly as a “notorious offender,” has passed his life in a certain “Auld Licht” village without being converted. Last week a Farfar magistrate sentenced him to a fine of half a crown or twenty-four hours' imprisonment. If he chose the latter he would be taken to the jail at Perth. The cobbler communed with himself. “Then I'll go to Perth,” he said; “I have business in the town at any rate." An official conveyed him by train to Perth, but when the prisoner reached the jail, he said that he would now pay the fine. The governor found that he would have to take it. “And now," said the cobbler, “I want my fare home.” The governor demurred, made inquiries, and discovered that there was no alternative; the prisoner must be sent at pub. lic expence to the place he had been brought from. So our canny cobbler got the two shillings and eight and one-half pence, which represented his fare, did his business, and went home triumphant-two and onehalf pence and a railway ride better for his offence.
The Central Law Journal. said that it prolongs litigation. Concede that
for a moment, and yet the answer is sufficient
that, within reasonable limits, time is essenST. LOUIS, OCTOBER 15, 1886.
tial to the administration of justice. The most expeditious courts are those of semi-
barbarians. The Turkish Cadi, or the CURRENT EVENTS.
Chinese Mandarin, hears, decides, and exeJURY TRIALS IN CIVIL Cases.—The ancient
cutes judgment at a single sitting, very satisconservatism of the profession seems to be
factory, no doubt, to the prevailing party ;
but whether there is either law or justice in deserting it. Lawyers, no longer controlled by such cautious maxims as Stare decisis,
the ruling is altogether another matter. We
withdraw our concession, however, and say, quieta ne movere, and the like, have become
that the only court in Christendom which has as the Athenians of old, seekers for new
ever made itself a reproach, and a hissing, things, and clamor for reforms, as well of the fundamental principles of the law, as of the
and a by-word among the nations of the most immaterial of its processes.
earth, because of the excessive and inexcusaAmong other time-honored institutions
ble delays of its decisions, and consequent
and absolute denial of justice, was a court in threatened by the hand of innovation is trial
which no jury was ever empannelled. It will by jury, not, as yet, in criminal cases, but in those which involve merely property, money
be found that in our country very little of the and character. It seems to be conceded by
delays of justice, in civil cases, can fairly he the reformers that the time has not yet come
attributed to mistrials, or new trials, or othto withdraw, from him who is accused of fel
erwise, to the juries; it can be much more ony, or even misdemeanor, such protection properly charged to the laches of masters, as bas been supposed, for a thousand years,
referees, and receivers, on the equity side of to be afforded by a jury of his peers. It is
the courts, and to crowded dockets which, in. said, however, that the powerful and oppres
the appellate courts of most of the States, sive baron, and the greedy bishop, against
have become the rule, and are no longer exwhom, in old times, it served to protect the ceptional. poor man's heritage, are now extinct, and
Trial by jury was, in the Middle Ages, a that, so far as civil actions are concerned,
safeguard for the private suitor against his
political superiors, we have no use for it in trial by jury has outlived its usefulness. We do not, of course, propose to argue
that respect, having no political superiors ;
whether we need, or will need, it as a prothis question at length, the space at our command is wholly inadequate, even if we de
tection against our financial superiors, in the sired to do so. We suggest, however, a few
shape of concrete capitat, is a question we
will not discuss. considerations which have recently occurred
It is sufficient, perhaps, to
say that, having it, we should not part with The arguments, against the present sys
it, for if we do, we can never recall it, howtem, are chiefly drawn, ab inconvenienti, the
ever urgent may be our need. most fallacious and inconclusive of all argu
Upon the whole subject we think that any ments. It is said, for example, that trial by
litigant who desires it, should have his case:
tried by a jury, and that those States in jury is expensive. Suppose it is, but if, not
which that is the rule have gone quite as far withstanding that fact, and considering all
in that direction as policy justifies. the circumstances, the history of the institution, and its present operation, it is to the interest of the people that it should be preserved, the expense should not be regarded, THE PROGRESSIVE CAPACITY OF UNWRITTEN for if there is one thing, more than another, LAW.—This is the title and subject of a lecin all the affairs of men, which is worth the ture, delivered on the first day of October, money it costs, it is the due, just and impar 1886, before the Law Class of the University tial administration of the law. It is further of Pennsylvania, by Professor Geo. Tucker
Bispham. The learned professor demonVol. 23.–No. 16.
strates that, for some centuries past, the un and to make it so distinct and definite that it written or judge-made law has kept even would need no interpretation, that it would pace with the general progress of the coun explain itself? This is the ideal code; what try, and that whenever, in the development of the actual code would be, even if exploited the better and higher conditions of modern by the greatest legal and legislative talent of society, there appeared a need for a new legal the nation, might well be altogether a differprinciple, or a new remedy, the courts were ent matter. It might need interpretation always ready with the new principle, or a new from the very beginning, and substantial application of an old one. Thus, by the ac amendments before it had been six months in tion of the courts alone, was developed the operation. A really good code would doubtwhole system of equity jurisprudence and less be an improvement upon the existing practice, and the great body of commercial status, but such a compilation is rather to be law. He says: "In glancing, therefore, desired than expected. The first work of over the whole field of Substantive Law, I the courts would be to expound the code, think that we can plainly see that in many
and to that end the infinite mass of ante-code portions of it, at all events, unwritten law has precedents would be brought into requisition, been found not only quite capable of pro and the most probable result would be that gress without any statutory aid, but that its the uncertainty of the law, so much depreprogress has been of a practical and adaptive cated, would be rather increased than diminkind, and has always been ready to conform ished. to any changes which have taken place in the social relations or business affairs of men.” The inference from this line of reasoning
NOTES OF RECENT DECISIONS. would seem to be that the courts can well be trusted with the task of effecting all the re
IS AN INTENTION AN EXISTING Fact?-DEforms in the law, which have been so persist
CEIT—FRAUD—False REPRESENTATION.—In a ently sought by the advocates of a general
recent English case,' there is a somewhat new code, or, as it has been styled, reducing the
development of the law of deceit, false repcommon law to the form of a statute."
resentations and fraud. The facts were that We do not propose to go fully into that
a joint stock company, limited, being in want subject but merely to express two or three
of money, issued circulars asking subscripideas that have occurred to us in this connec
tions for debenture bonds to the amount of tion. The progressive capacity of the un
£25,000. The circulars stated the object of written law” is the precise quality which most
the company to be to enlarge its facilities for strongly tends to authorize an attempt to re doing business, and, by diminishing expenses duce the whole body of the law to the form
to increase its profits, and stated in detail of a code or statute. Is not the unwritten
how these desirable objects could be accomlaw too progressive? Does it not multiply plished. The result showed that the true obdistinctions to such an extent as to justify an
ject of raising the money was to prop a faileffort to consolidate them? Adjugded cases
ing concern, and tide over an emergency. In in a thousand volumes of reports bear wit
a few months after the plaintiff had taken the ness to the industry of judges in making the
bonds and paid the money, the company law, for in effect it is making, not interpret
failed and paid a very scanty dividend. The ing. Would it not be better to boil down,
suit was brought to charge the directors perconsolidate and condense the law now
sonally, because in their circular they had diffused, so shifting and variable, into a solid
made misrepresentations, whereby plaintiff body of distinct, definite and unambiguous had been induced to become a subscriber. precepts adapted to every phase of human
The case turned upon two questions, first, affairs, and applicable to any possible emer
whether the objects for which the money was gency or combination of circumstances that
required by the company were "existing can arise in the infinite variety of our politi- facts,” within the meaning of the phrase cal, social, domestic and industrial relations? Would it not be better to have such a code, 1 Edgengton v. Fitzmaurice, 55 L. J. Rep. Chan. 650.
when applied to the action of deceit. The isdiction, in proper cases, to restrain acts second question was whether it was necessary 1 ke those now complained of, upon the inforthat the statement should be the primary in mation of the attorney general, either on beducement to the plaintiff to part with his half of the commonwealth, or at the relation money, or whether it was enough that it of a private individual.3 But in determining should be one among many inducements. whether a proper case has been made out, The court decided, without division of opin all the circumstances are to be looked at.
In ion, that the statement of the objects for England, in cases like the present, where the which a loan was solicited, or, in other words, court has refused to interfere by way of inof the intention of the borrower, is a state junction, special significance has been atment of an existing fact, Lord Justice Bow tached to the circumstance that the informaen adding: “The state of a man's mind is as tions were not brought in behalf of the much a fact, as the state of his digestion.” | public, but merely at the relation of parties The court also decides that it is enough that privately interested, who might themselves the misrepresenation complained of should be have instituted legal proceedings if any a contributory part of the inducement; it special damage had been inflicted upon them. 4 need not be the sole or main fact.
In the former case, Lord Cranworth went so The London Law Journal, commenting on
far as to say:
I cannot but come to the this case, remarks: “The weakness of the conclusion that the attorney general and the decision consists in the fact that it is a ques public here are a mere fiction, and that the tion of pure common law decided after argu
real parties concerned are only those that ment by equity counsel only, and by the judg were parties to the first suit.' Page 313. ment in the main of equity judges.” After
After This, however, is not a controlling considersome discussion, however, it concludes: “On ation; and, if an information is brought, in the whole, common lawyers may fairly accept cases where the principal interest involved is this latest extension of the action of deceit.” a private one, the introduction of a relator is
proper, in order that he may be liable for costs. But, while not doubting that cases
might exist in which the interposition of the Quo WARRANTO-INFORMATION—By WHOM
court would be properly sought to restrain AND UPON WHAT GROUNDS IT MUST BE Filen,
the digging up of streets, we see no occasion --In a very recent case, the Supreme Judi for such interference here. In a very recent cial Court of Massachusetts has discussed case it has been declared that “the court the functions and operation of the writ of will not interfere when the obstruction Quo Warranto, or of the nature thereof, and to the rights of the public is of such refused to apply that remedy to the relief of a character that it may with equal facila private person upon whose relation the in
ity be removed by other constituted authoriformation was filed.
ties and public officers. There must be a The facts were that Kenney, finding the want of adequate, sufficient remedy, and the operations of the gas company in digging up
injury to public rights must be of a subthe street and laying pipes, inconvenient to
stantial character, and not a mere theoretical his business as a brewer, caused the informa
wrong." tion to be filed upon his relation by the At
By Pub. St. C. 106, § 77, it is provided torney General.
The court held, that the plaintiff had mistaken his remedy, that the law will not accord
3 Attorney General V. Jamaica Pond Aqueduct
Corp., 133 Mass. 361; District Attorney v. Lynn & B. the benefit of this extraordinary writ unless R. R., 16 Gray, 242. it shall appear that the desired relief cannot 4 Attorney General v. Sheffield Gas Consumers' Co., be obtained through ordinary processes. On
3 De Gex, M. & G. 304; Attorney General v. Cam
bridge Consumers' Gas Co., 4 Ch. App. 71. 81, 82, 84, the general subject the court says:
87. “We have no doubt that the court has jur 5 Attorney General v. Sheffield, etc., Co., Supra.
6 Pub. St. c. 189, $ 19; 1 Daniell, Ch. Pr. (4th Amer.
Ed. 1416. 2 Kenney v. Consumers' Gas Co., and Attorney 7 Attorney General v. Metropolitan R. R., 125 General v. Same, Sept. 11, 1886, 8 N. East. Rep. 138. Mass. 515, 516.