« AnteriorContinuar »
tion in which her husband is the debtor, property which she, by clear and decisive proof, establishes to be her separate property, because she would be compelled to show, in an action of ejectment, by proof outside of the deed, that such property was her separate property, in order to defeat a recoyery; for the true test by which to determine the question whether a sheriff's deed under an execution sale would cast a cloud upon the plaintiff's title is this: “Would the owner of the property in an action of ejectment brought by the adverse party founded upon the deed, be required to offer evidence other than her deed, or her other munimeni of title, to defeat a recovery?” Tibbetts v Fore, S. C. Cal. July 28, 1886; 11 Pac. Rep. 648.
15. — Fraud-Undue Influence-Rescission of
Contract.-One whose consent to execute a contract has been obtained through fraud or undue influence may rescind the contract, but he must do it promptly on discovering the facts which entitie him to rescind. In this case, where a trust deed by a married woman was executed on May 23, 1884, and the plaintiff, having full knowledge of the facts, did not commence the action to set aside the deed on the ground of undue influence or fraud until October 10, 1885, and the complaint then failed to allege any reason for such delay, held, that the delay was unreasonable, and fatal to the action. Burkle v. Levy, S. C. Cal. July 28, 1886; 11 Pac. Rep. 613.
disposition as though filed as an original bill. A pleading, filed by respondent, seeking to enjoin the wrongful use by complainant of a drain, the obstruction of which the original bill sought to enjoin, does not set up new or distinct matter, and is maintainable as a cross bill. A right gained by prescription cannot be enlarged or extended beyond the prescriptive use. When the term “drainage" is used as appurtenant to lands, and, at the time, a drain for water exists, with no provision for house sewage, which, if included, might result in a nuisance, “drainage” will not be construed to include house drainage or sewage. Wetmore v. Fiske, S. C. R. I., July 17, 1886; 2 N. Eng.
Rep.,626. 18. EVIDENCE. – Parol Evidence Ambiguity in
Building Contract.-Where a clause in the specifications, the basis of a building contract, recites that “the entire walls of the building, inside and outside, are to be painted,” and it is claimed and denied that the meaning is tbat the plaster as well as the wood-work is to be painted, and an expert testities that the meaning of the clause would “depend on the conversation,” the language of the clause is sufficiently ambiguous to warrant the admission of extraneous evidence to explain its meaning. Beason v. kurz, S. C. Wis., Sept. 21,
1886; 29 N. W. Rep., 230. 19. EXECUTORS AND ADMINISTRATORS.-Debt Due
Estate by Erecutor.-The only property of a testator in the hands of her executor, as shown by the inventory filed in the county court by the executor, being a note given by the executor to the testatrix during her life-time, and certain rents due from him to her, the county court bas no authority to compel the executor to pay a claim against the estate, as he had no funds in his hands belonging to the estate. The claim of the estate against the executor is a mere chose in action on which he may or may not be liable, and he does pot admit that he owes the estate anything, or waive any defense he may bave, by merely including the claim in bis inventory. In re Estate of Divan, S. C. Wis., Sept. 21, 1886; 29 N. W. Rep., 213.
16. - Jurisdiction-Chattel Mortgage- Agency
-Partnership.-A bill in equity will not lie where there is a remedy at law; hence, a general creditor cannot sue in equity to recover a debt for merchandise sold; where the chattels which the plaintiff seeks to have applied to the payment of his debt, are property which, from its nature, can be come at, to be attached, and taken on execution in a suit at law, if the property of the debtor and the debtor and the case stated are not within Pub. Stats. chap. 151, § 1, cl. 11. If the property was sold to defendant under a firm name, defendant's wife being the other member of the firm, plaintiff can sue bim therefor, if, in buying, defendant acted as the agent of his wife, an undisclosed principal; and he can sue her also; but he can not sue both jointly, either at law or in equity; but may proceed against each separately, although not to judgment against both, for a judgment obtained against one, although unsatisfied, is a bar to an action against the other. If the chattels have been mortgaged or pledged to a third party, the general property is in the debtor and can be attached in an action at law; so, if the wife file a certificate proposing to do business on her separate account, under the firm name of her husband, filed in fraud of the statute and of his rights, the effect is that the property is attachable as his property, the deceit practiced being no greater than if any other person had taken the business, with defendant as agent. Section 3, chap. 151, Pnb. Stats., gives jurisdiction in equity in the cases specified, concurrently with tha
of cou its of law; and it is only on the ground that the debtor's property has been conveyed in fraud of creditors that plaintiff can bring his case witbin it. Weil v. Raymond, S. J.
Ct. Mass. July 1, 1886; 2 N. Eng. Rep. 596. 17.
Pleading - Presumption Easement Drainage.-The discontinuance of an original bill does not dispose of a cross bill, where ibe cross bill sets up additional facts and prays for atfirmative relief; in such case the cross bill remains for
Judgments - Liability of HeirsErecutor's Resignation - Presumption in Faror of Proceedings of Court.--If there is a vacancy in the office of executor of the estate of a deceased person at the time an action is brought, and judyment is rendered iherein against the estate, the heirs are not bound by such judgment. Where a probate court has jurisdiction of the subject-mat. ter and the parties, all presumptions are in favor of the validity of its orders, and an order accepting the resignation of an executor cannot be col. laterally attacked. Luco v. Commercial Bank,
etc., S. C. Cal., July 30, 1886; 11 Pac. Rep., 650. 21. FRAUD.--Sale of Land--Misrepresenting l'olue.
-When property has been sold, and the deed thereof executed, and fifteen months afterwards a note is given to the vendor for the balance of the purchase money, the deed will not be set aside on the ground of misrepresentation as to the value of the property, when the representation is the mere judgment of the vendor, and the vendee has knowledge of, or means of ascertaining, the value of the property. Belz v. Keller, Ct. of App. Ky., Sept.
16, 1886; 1 S. W. Rep., 420. 22.
Statute of Frauds-Contract.-The statute of frauds of this State extends to contracts for
the sale of leasehold interests in land, as well as of lands and tenements, or making leases thereof. Hence an oral agreement to sell certain buildings erected upon leased land, and the machinery, together with the lease, which had about two years and nine months to run, is an entire contract, and and as such, including the leasehold interest, is within the statute of frauds, and an action thereon cannot be maintained unless the contract is in writing and signed by the party to be bound. Where defendants entered into the contract in good faith, and did not recede from it until they found that certain machines, wbich they supposed were included in the sale, belonged to the tenant in possession, and incurred expense in making alterations, an action on the case charging them with falsely entering into the contract with intent to injure the plaintiff, is not maintainable. Potter v. Arnold, S. C. R. I., July 17, 1886; 2 N. Eng. Rep., 621.
23. FRAUDULENT CONVEYANCES. - Preferences -
Partners-- Trial Submission of Issues -- What Submitted.-A debtor, even when in failing circumstances, has the right to pay the bona fide demand of one of his creditors to the exclusion of others. Lininger v. Raymond, 12 Neb. 19; s. C., 9 N. W. Rep. 550. A partner or firm has the same right, so long as the payments are made in good faith to creditors of the partnership. Where a cause is being tried by a jury, all questions of fact at issue, and material to the case, should be submitted to them, with proper instructions for their guidance. Dietrich v. Hutchinson, S. C. Neb., Sept. 8, 1886; 29 N. W. Rep., 247.
24. GARNISHMENT.- Who Liable-Money Held for
Third Party-Claimant not Appearing-Discharge of Trustee.-A trustee in foreign attachment, who has received money from the debtor for a temporary purpose, with notice that it belonged to another party, is not chargeable for the money so received. In foreign attachment, the fact that the claimant of the funds in the possession of the trustee refused to appear under the terms imposed and leave granted by the court, does not prevent the discharge of the trustee. Cram v. Shackleton, S. C. N. H., July 30, 1886; 5 Atl. Rep., 710.
27. HUSBAND AND WIFE.-Deed by Married Wo
man-Consideration.- A deed of trust of her separate property executed by a married woman, empowering the trustee, in case of default on the part of her husband in making payment for certain indebtedness, to sell the property, and out of the proceeds to pay such indebtedness, is sufficiently supported by a good consideration where such deed is executed in consideration of the extension, by her husband's creditors, of the time to pay such indebtedness. Burkle v Levy, S. C. Cal.,
July 28, 1886; 11 Pac. Rep., 643. 28. INFANTS.-Action-Goods Sold to Partnership
- Plea of Infancy-Estoppel-In an action upon contract for goods sold and delivered to a partnership, one member of which is a minor, the plea of infancy may be interposed by him in bar of any claim of personal liability upon the contract. An infant is not estopped from setting up such defense by the fact that he has engaged in business as a member of such partnership. Folds v. Allardt, S. C. Minn., Sept. 6, 1886; 29 N. W. Rep.,
201. 29. INSURANCE.-Benefit Associations.-The cer
tificate of a benefit association is in legal contemplation a policy of insurance and governed by the same general rules of law. Statements in the application must be incorporated or appropriately referred to in the contract to become warranties. Where the charter of a benevolent association provides that the benefit shall be paid to the party designated in the application, or if that be impossible, to certain other parties named, the rights of the beneficiary become vested when nominated in the application, and the name of such beneficiary cannot afterwards be changed by the member. Where there is nothing in the charter conflicting, however, the member may perhaps change the beneficiary, but a charter limitation will prevail over any general rule of law. Presbyterian Assurance Fund v. Allen, S. C., Ind., June,
1886: 15 Ins. L. J. 768. 30. Life-Payment of Premium.-A., an in
surance agent, residing at Chester, on May 1, 1882, received the application of B. for a $1,000 policy of insurance upon the life of B., the premium for the year being advanced by A. from his own funds; the application was forwarded to C. at Philadelphia (he being the agent of D., the insuring company), and was by him sent to D., whereupon a policy was made out, which with a receipt signed by the secretary, and containing the following: “Not to be valid or render said policy binding until payment is made as stated in the margin hereof during the life-time of the said insured, and this receipt countersigned by “C,” agent, at Philadelphia, Pa.," was sent to C., who forwarded it to A. Neither the policy nor receipt was ever delivered to B.; but A., in making his settlement with C., treated the premium for the year as paid, and C., in his settlement with D., treated it as paid. On March 4, 1883, B. died; E., his administrator, brought assumpsit against D. to recover the amount of the policy. Held, that the payment of the premium by A. for B., if found as a fact by the jury, was such a payment as would be binding upon D. and would justify a recovery by E. Continental, etc., Co., v. Ashcraft,
A. S. C. Penn., Apr. 5, 1886; 6 East Rep., 863. 31. MARRIED WOMAN- Title to Real Property
bought for her by Husband--Deed in Husband's
25. GIFTS INTER Vivos.-Revocation-Intention.
After a valid gift inter vivos of a promissory note held by the donor, now deceased, against the donee, a re-delivery of the note to the donor,with. out any intention to re-vest the title to it in him, except in the contingency of his becoming poor, which never happened, is not a revocation of the gift, nor does it amount to a gift inter vivos. Marston v. Marston, S. C. N. H., July 30, 1886; 5 Atl. Rep. 713.
26. HOMESTEAD.-Mortgage by Married Woman
Equity-Jurisdiction.-A mortgage of a tract of land, including the homestead, executed by a married man without the concurrence and signature of the wife, is invalid for the purpose of impairing, dismembering, or in any manner affecting such homestead or its appurtenances; but aliter as to the portion of such tract, if any, not embraced within such exempt homestead. When a district court has gained jurisdiction of a cause for one purpose, it may and should retain it generally for relief. Swift ». Dewey, S. C. Neb , Sept. 15, 1886; 29 N. W. Rep., 254.
Name-His Creditors.--Evidence-Res GesteDeclarations of Married Woman as to her Title to Land.-Where the husband buys land by his wife's direction for her, and makes the cash payment with her money, but gives his own notes for the deferred payments, which, however, are paid with her money, as they mature, though he has taken the title in his own name, without her knowledge, the land must be conveyed on her demand made upon the discovery that he had taken title. The declarations of a married woman made upon the discovery that her husband had taken title to land bought for her by him, by her direction, with her money, are competent evidence for her as res gesta, in a suit by bis creditors to set aside a conveyance to her of the land, as without consideration and fraudulent as against them. Mitchell v. Colglazier, S. C. Ind., May 24, 1886; 22, Rep., 427.
in the act of bringing in a vessel to the wharf, that "the longer he was in the employ the worse he got, or words to that effect," is admissible. Negligence, such as unfits a person for service, or such as renders it negligent in a master to retain him in his employ, must be habitual, rather than occasional, or of such a character as renders it imprudent to retain him in service. A single exceptional act of negligence will not prove a servant to be incapable or negligent. A jury should not have been allowed to infer negligence from the simple fact of the happening of an accident. Baltimore Elevator Company, v. Neal. Md. Ct. App., June 23, 1886; 6 East, Rep., 497.
32. MASTER AND SERVANT-Injury by Fellow
Serrant- What Plaintif Must Show.--Evidence - Expert - Whether Vessel Skillfully Handled.Former Acts of Carelessness.- Declaration of Servant-When Admissible Against Master.Fitness of Servant.-Negligence-Inference from Accident.-Plaintiff, while engaged as a laborer in shoveling grain from cars into the hoppers of an elevator owned and operated by defendant, was ordered by the foreman, whose order he was required to obey, to assist in bauling in and fastening to the pier of the elevator a square-rigged vessel to be loaded from the elevator. The vessel had been brought to the pier by, and was in charge of, a steam tug commanded by an employee of the defendant; the captain of the tug neglected to have the yards of the vessel properly braced or stayed, so as to avoid contact with the elevator building while in the act of being placed alongside the pier, and in consequence the yards of the yards of the vessel came in contact with the building, and knocked off a parcel of slating, which fell upon and injured plaintiff. Held, that the captain of the tug and plaintiff were fellowservants, and to justify a recovery, plaintiff must show (1) that the injury suffered by the plaintiff was caused by the negligent or unskillful management by the captain of the tug in attempting to place the vessel in tow in position along-side the pier; and (2) that there was want of ordinary care and diligence on the part of defendant in the employment, or in the retention in service, of the captain of the tug. The foreman of the elevator testified that he had frequent and constant opportunities of observing the way in wbich the tug brought vessels into the wharf at the elevator. He also testified that he had been engineer and assistant engineer in different steamers, plying to different parts of the country, and that he was familiar with the operation of tugs, having been about the barbor for twenty-three years. Held, that he was competent to testify as to wbether the vessel was skillfully or negligently brought to the pier by the captain to be placed in position to be loaded. Proof of former acts of carelessness or unskillfulness on the part of the captain of the tug furnishes no presumption that he was guilty of negligence or unskillfulness on the occasion when the plaintiff was injured. The declaration of defendant's assistant superintendent, while engaged in the general management of defendant's affairs, and while observing the captain of the tug
-,-Negligence-Damages-Fact for the Jury.-A railway company was engaged in the increasing of the width of a tunnel upon its line of road in order to accommodate two sets of tracks; A. was superintendent of the work, receiving his instructions from B., the railway company's roadmaster. Under directions emanating from B., A. erected at a point one hundred and sixty feet from one end of the tunnel and about forty feet from the railway tracks, a small frame building for the storage of dynamite, to be used in the accomplishing of the tunnel improvement; after the completion of the building and whilst it contained about one thousand one hundred and fifty pounds of dynamite, C., who was employed by the railway company as a flagman on a gravel train which was standing at a distance from the tunnel taking up ballast from the fragments that had been brought out, was directed by his conductor to go to the breast of the tunnel and flag a train that was about due then. Whilst performing that duty, the dynamite in the storage house, from some unknown cause, exploded, and C. was killed. Held, that the locating of the storage house, so far as C. was concerned, was not the act of a fellow-servant but of the railway company itself. Held, also, that the question whether the placing of the magazine was an act of negligence was for the jury. A master is bound to take heed, that he does not through his want of care expose his servants to unnecessary risks or dangers either from the character of the tools with which he supplies them or the place in which he requires them to operate. Tissue v. Baltimore, etc., Co., S. C. Penn., March 29, 1886; 6 East Rep., 853.
34. MORTGAGE.- Foreclosure-Sale of Platted Lots
- Validity-Action to Set Aside Sale--LachesPleading.-A. mortgaged lands to P., by government description, and thereafter caused the same to be surveyed and platted into lots and blocks, with streets and alleys. P. joined in the plat and dedication, and thereafter, upon default of the mortgagor, foreclosed and sold thc land in separate blocks, as described on the plat. Held, that the sale was not necessarily void because the premises were not sold in smaller parcels, or in lots or half blocks. Wben an action to set aside a sale for such cause was delayed until after the time for redemption had expired, and the complaint failed to disclose any excuse for such delay, or to set forth the facts showing any special equities on the part of the plaintiffs, held, that a demurrer to the complaint was properly sustained. Abbott v. Peck, S. C. Minn., Sept. 7, 1886; 29, N. W. Rep., 194.
is authorized by its charter to lay its track or tracks on the street of a city, with the imposed duty of keeping the street in due repair, may be required to construct a viaduct to give proper public passage, if its tracks are so numerous and its use of them so frequent as to block public travel. The duty to keep the street in condition for free use is continuous, and the company must comply with any demand arising from any exigen. cy. Semble, that in such a case, if land must be condemned to make the viaduct, the company, not the city, must pay the damages. Minneapolis T. St. Paul, etc. R. Co., S. C. Minn. April 6, 1886; 2:3 Rep. 436.
35. NEGLIGENCE.- Instructions - Evidence – Con
tributory Negligence.- Where prayers of the opposite party are excepted to only on the ground of want of evidence to support them, the objection that they are incorrect as legal propositions is deemed waived and will be considered on appeal. A special exception to the granting of prayers, on the ground of want of proof to support them, must show the defect in proof relied on. In an action to recover damages for personal injuries claimed to bave been caused by the negligence of a railroad company, a prayer offered by defendant, which instructed the jury that they were entitled to consider the familiarity of plaintiff with the tracks and their use, should be refused. In admitting evidence of the knowledge of plaintiff and so allowing it to be weighed for all legitimate purposes, the court goes as far as it properly can. Where strict compliance with a city ordinance requiring the company to station a man on the front of locomotives or on the rear of tenders, “within twelve inches of the bed of the road,” has been rendered impracticable through improvements in the construction of locomotives, failure to literally comply therewith is not of itself an act of negligence. Its spirit and intent must, however, be observed. It is contributory negligence in law for an adult, who is in full possession of all his facuIties and familiar with the crossing and the movements of cars, to attempt to cross a railroad in front of a moving engine, in full view and within ten or twelve feet; and the jury should be so instructed, in case they find such facts to exist. Baltimore etc., Co., v. Vali, Md., Ct. of App.
June 24, 1886; 3, Cent. Rep., 903. 36. NEGLIGENCE-Question for Jury-Leaving Ma.
chinery Exposed-Contributory Negligence. The complaint charges negligence on defendant's part in leaving certain dangerous machinery exposed, in consequence of which plaintiff was injured. Held, upon the evidence in the case, that the jury were to judge whether it was reasonably prudent, under the circumstances, to leave such machinery exposed; and also, upon the question of plaintiff's contributory negligence, whether the plaintiff was apprised of the danger, or, in the exercise of ordinary prudence, ought to have known it; and that these questions were properly submitted to them. Barbo v. Bassett, S. C. Minn. Sept. 6, 1886; 29 N. W. Rep. 194.
39. SET-OFF AND COUNTER-CLAIM-Judgment
Several Defendants.-A judgment sustaining a counter-claim set up by one of several defendants inures to the benefit of the others; but, being so set up in one or two separate actions by the same plaintiff against the same defendant joined in the two actions, with different co-defendants, a judg. ment in the first action disposes of the counterclaim, and estops such defendant or his co-defendants to claim its benefit in the action following. Bank of New London v. Ketchum, s. C. Wis. Sept. 21, 1886; 29 N. W. Rep. 216.
40. TRUSTS-Personal Property - Transfer Need
not be in Writing-Express Trust-Subject-Pur. pose, and Beneficiary-Acceptance by TrustreRevocation-Consent of Cestui Que Trust-Trial - Evidence-Striking Out - Motion Must be Defin. ite.- Where the subject of a trust is personal property, it is not necessary that the transfer should be in writing. The intention of a trustor to create a trust, where the subject is clearly defined and the purpose made manifest, and the acceptance of the trust by the trusteee, with full knowledge of its subject, purpose, and beneficiaries, creates the trust. After a trust is once created and accepted, it is not in the power of the trustor to revoke it without the consent of the beneficiaries, unless power to do so was reserved in the declaration of trust. When testimony is admitted, some of which is relevant and competent, and intermingled with that which is improper,a motion to strike out should be directed with such precision to the portion attacked that no uncertainty may remain as to tes. timony that is challenged. Heilman v. McWilliams, S. C. Cal. Aug. 26, 1886; 11 Pac. Rep. 659.
37. PRACTICE-New Trial-Nevoly-Discovered Evi
dence-Insurance.-In an action on an insurance policy, which policy plaintiff alleges was issued on an application made and signed by himself, evi. dence on the trial that plaintiff did not know what representations the application contained, because it was made by his agent, are not properly admissible, because contrary to the averment of the complaint; but if such evidence is admitted, on judgment for the plaintiff, the defendant will be entitled to a new trial, on the ground of newly-discovered evidence, where, as a basis of his motion, he produces an affidavit of such agent, which puts in issue the plaintiff's statement that he did not know what representations were made, and tends to show that he himself made them. Menk v. Commercial Ins. Co. S. C. Cal. Sept. 1, 1886; 11 Pac,
Rep. 654. 38. RAILROAD— Municipal Corporation-Track in
Street- Maintaining Proper Public Street-Numerous Tracks-Viaduct-Damages for Condemn. ing Lands - A railroad company which
41. WILL.-Construction of:- The testator gave an
annuity of $200 to his sister, and directed $3,300 to be paid at her death to her children and their representatives, if deceased, excepting” W. At the date of the will, eight of the sister's children were living, and two deceased, one of whom was the mother of W. and the plaintiff. Ileld, that it was clearly not the intention of the testator to exclude the issue of the two persons deceased; and that the plaintiff was entitled to share in the bequest as a primary legatee. Bronson v. Phelps, S. C. Vt.; 6 East. Rep., 779.
42. Construction-Lapsed Legacies-Descent
and Distribution-Right of Devisee to ResidueWho Take-Gift to Heirs.-By the terms of a will two persons were left specific shares of a residue. The legatees, however, died before the testator. Held, that those shares lapsed, and the testator died intestate as to them. M. J. W. was left a life-estate in a house and lot, "as his full portion
of the testator's estate.” Held, not to exclude him from the participation which the laws of descent or the statute of distributions gives him in the two shares of the residue of which the testator died intestate. E. W.'s heirs were given a share of the residue. J. W., one of those heirs, died in the life-time of the testator, leaving children. Held, that J. W.'s children being persons who, at the death of the testator, would by law inherit a share of the real estate of E. W., and would be entitled to a share of her personal estate, they take under the gift. Ward v. Dodd, Ct. of Chan. of N. J., Sept. 10, 1886; 5 Atl. Rep., 650.
4. WILLS-Revocation-Child or Children Born
After Making Will.-Every last will, made when testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child or children, or issue, or leave his wife enciente of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate. Coudert v. Coudert, N. J. Ct. of Chan., Sept. 20,
1886; 5 Atl. Rep. 722. 44. WITNESS.—Impeachment-Character and Repu
tation-Particular knowledge of Individual Acts. -Where the character of a witness is in question it is improper, on the cross-examination of an impeaching witness, to ask if the witness has any personal knowledge of any particular act of bad conduct on the part of the witness whose character is being assailed. Nor is such testimony competent on the re-direct examination.
Fox v. Commonwealth, Ct. of App. Ky., Sept. 9, 1886; 1 S. W. Rep., 396.
Query 22. (23 Cent. L. J. 287.)-M, is indebted to one of the ice-dealers of Longstown, Ohio, on a bill contracted three years ago; he is irresponsible and unable to pay, being the head and support of a family and entitled to certain exemptions. For the purpose of compelling him and other delinquents to pay old bills, all of the ice dealers of said place entered into a written agreement in the spring of this year, to boycott all persons indebted to any one of them. In pursuance of said agreement, M. was notified that if he did not pay by a certain day that he would be placed upon the “black list," and the ice market closed against him. Being unable to pay he did not comply, and all ice dealers refused to sell him, though tendered the cash for the ice upon delivery. He then made arrangements with a neighbor to buy more than he wanted, and in that way obtained ice for a short time, and until the dealers found that out, when they refused to sell any more to the neighbor. So that, in fact, he has been absolutely unable to obtain ice during the season. Has he a cause of action at common law?
K. & H. Answer.-There is no cause of action at common law. It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern. Cooley on Torts, p. 278. Further, an act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several. Kimball v. Harman, 34 Md. 507. Chapman, C. J., in Carew v. Rutherford, 106 Mass., 12, says: “And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for, or deal with, certain men or classes of men, or work under certain conditions." There are no cases in conflict with the foregoing: but note this sentence from Lord Coleridge, C. J. in Mogul Steamship Company v. McGregor, a recent English case (vide Vol. 22, Cent. L. J. p. 305,) “a conspiracy to do the thing which has been called by the name of boycotting is unlawful and an indictment would lie; and it an indictment, then an action." Cincinnati, Sept. 25, 1886.
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.)
QUERIES. 26. Plaintiff recovers a verdict and judgment before a jury and magistrate. The time for bond in appeal or stay of execution is ten days from rendition of judgment. The judgment can be made out of defendant's property but is not a lien until levy is made. On day of trial defendant and his counsel both request of plaintiff's attorney that execution be not issued; that they will either put in a bond in appeal or for stay of execution-either of which would have secured plaintiff's claim. Two days after trial defendant's attorney calls at the office of plaintiff's attorney, and not finding him in, leaves a note saying, "Don't issue execution, we will give either an appeal or stay bond.” Plaintiff's attorney relies upon this promise. Before the ten days expire defendant's attorney learns that the defendant is insolvent and cannot give bond, and without notice to plaintiff's attorney writes for defendant two chattel mortgages--one in favor of another client of defendant's attorney, and the other in favor of a relative of defendant. They file these mortgages, the effect of which is to entirely defeat the plaintiff's claim. Can the action of defendant's attorney be justified? What was his duty in the premises? What would be a proper punishment for said attorney? Cincinnati, o.
J. T. H.
NEW TRIALS AND APPEALS, or the rules of practice
applicable to the review of judicial determinations in civil actions and in special proceedings under the Code of Civil Procedure, with an appendix of forms. By Edwin Baylies, Counsellor at Law. Rochester, Ni Y.: Williamson & Higbie, Law Publishers. 1880.
This is a work of a strictly local character, applicable altogether to practice in the courts of New York. It is well arranged and prepared with great care and labor, and will no doubt prove a valuable acquisition to the legal literature of the Empire State.