« AnteriorContinuar »
for a removal to the United States circuit court, and the petition is denied, and he afterwards applies for and obtains a change of venue to another State circuit court on the ground of prejudice of the judge, the latter application amounts to a waiver of his application to remove the case to the federal court. Where a defendant's petition for removal of a cause pending in a State court to a federal court is denied, and defendant afterwards obtains a change of venue to the court of another county, and there renews his application, such application is too late, for the reason that the cause could have been tried in the circuit court of the county where the action was commenced at the term in which the first application for removal was made. First Nat. Bank of Wausau v. Conway, S. C. Wis., Nov. 3, 1886; 30 N. W. Rep. 215.
damages for the death of a three-year old child caused by hot water, or from defendant's pipes, a cause of action is not stated unless the petition avers either that the place where the child lost its life was attractive to children, or that children in the neighborhood were in the habit of resorting there to play or to witness the escape of the water and steam from the pipe, thus tending to show that defendant was not properly exercising dominion over his property. Schmidt v. Kan
sas City Distilling Co., $. C, Mo. Nov. 15, 1886. 28. NUISANCE-Permanent But One Action Can
be Maintained · Damages-Right of ActionAgainst Whom.-In an action for damages to real property, caused by the overflow of water backing up from a dam, where the injury Is permanent in its nature, but one action can be maintained, and the amount recovered is for all damages, past and prospective. The right of action in such case accrues wholly against the party doing the injury, and a subsequent purchaser of the land will not be liable. Bizer v. Ottumwa, etc. Co., S. C. Iowa,
Oct. 29, 1886; 30 N. W. Rep. 172. 29. PARTNERSHIP-Evidence of-Finding of Jury
Dissolution — Notice - Incorporation — WitnessIncompetency by Reason of Interest-Co-partners -Trial-Introduction of Evidence-Order-Debt Against Partnership-Removal of Causes— United States Court - Wuiver of Right — Change of Venue-When Right Must be Claimed.-Where a firm styled "A," at Wausau, sold a half interest in their quarry and business to a firm styled “B," at Chicago, and it is alleged B became a partner in A's business under the style of “ A,” which allegation is denied by B, who claims each firm's busi. ness was distinct, in an action by plaintiff, a bank at Wausau, on a promissory note executed, after the purchase above mentioned, in the firm name of “ A," the positive testimony of a member of A that the two firms were partners In A's business; that A sold B a half interest in their quarry; that the two members of B visited the quarry at three different times, and one for two weeks acted as boss of the works, helped in quarrying, employed and discharged laborers, and paid them by order on the firm of A, and sent laborers up from Chicago, and that the pay-rolls were sent to B, in Chicago, and said member of B was with plaintiff in Wausau, and all checks on plaintiff were drawn in the firm name; and the testimony of plaintiff that he met one member of B in Wausau, and afterwards a member of A introduced the other member of B to plaintiff as our Chicago partner," before the note was signed, and plaintiff made a large loan to A the year after, is evidence which will warrant the jury in finding a partnership between A and B if it is believed by them. The organization of a partnership into a corporation is not evidence or notice to third parties, per se, that the partnersbip is dissolved, unless it be impossible for any purposes connected with the business that the partnership can be continued and co-exist with the corporation. In the trial of the fact of the existence of a partnership, an exception to the admission of the testimony of one of the partners is not well taken; such evidence being admissible, and his interest going only to his credibility. In an action for a debt against a partnership, an exception to admitting proof of the indebtedness before proving the partnership is not welı taken, it being an objection to the order of proof, wbich is in the discretion of the court. Where, in an action before a State circuit court, the defendant petitions
30. RAILROAD COMPANIES—Appropriation of Land
- Damages Fixed at Time of Construction, Subsequent Vendee-Subsequent Change in Construction. The measure of damages for lands taken in eminent domain proceedings is the cash market value of the land, and for lands damaged is the difference between the value of the lands before and after the construction of the improvement. Such damages become fixed at the time of the construction of the road, and belongs to the owner of the property at that time, and are not recoverable by his subsequent vendee. When, subsequent to the construction and to the sale of the property affected, the character of the construction is changed, and fresh damage is caused, such damages injure the person then owning the property, and are recoverable by him in an emi. nent domain proceeding. But semble the rule is otherwise as to the nature of the remedy when the first damage is caused, not by a change in the construction, but by a negligent maintenance of the original construction. Wabash, etc. v. McDougal, 8. C. Ill., Oct. 6, 1886; 8 N. E. Rep. 678.
31. Appropriation of Land – Damages-EL
cessive Verdict — Value of Land.-In an action against a railway company for taking the plaintiff's land, and constructing its road thereon, when it is found that defendant was not a tresspasser, the damage to the plaintiff is the value of the land taken, and a verdict for more than such yalue as shown by the evidence is excessive. hitterman v. Chicago, etc. Co., S. C. Iowa, Oct. 7, 1886; 30 N. W. Rep. 172.
32. Eminent Domian-Damages- Tenant for
Years-Measure of Damages-Difference of Value. - A tenant for years is the owner of an estate in the land, and is entitled to compensation for an injury done by a railroad or turnpike company in the construction of the road. The advantage which the owner of any other estate in the land may derive from the road cannot be deducted from the claim of the tenant for years. In condemnation proceedings, whether the assessment of damages be to the tenant in fee, for life, or for years, the rule as to the measure of damages is precisely the same. What was the value of the property, i. e., the tenant's interest therein, unaffected by the injury? What was its value as affected by the injury? The difference is the true measure of compensation. Philadelphia, etc. Co. v. Getz, s. C. Penn., Oct. 1886; 6 Atl. Rep. 356.
33. REMOVAL OF CAUSE-Co-conspirators - Sever
as Ground of Removal-Collusive Conveyance to Give Jurisdiction-Supp. Rev. St. U. 8. 175– sale made, by the defendant with plaintiff's consent. Bixel v. Bixel, S. C. Ind., Oct. 5, 1886; 8 N. E. Rep. 614.
Courts-Appeal to United States Supreme Court - Stipulation as to Decision of Issue of Another Case-Question Reviewable on Appeal.-In a suit to quiet title against several defendants, some of whom are citizens of the same State with complainants, charging defendants to be co-conspirators in a scheme to raise a cloud on complainant's title and to defraud them out of their property, one of the defendants cannot segregate himself from the others, and thus entitle himself to a removal of the case to the United States court, by denying any joint interest or liability, and setting up in his petition for removal a case inconsistent with the allegations of the bill. Where a firm of attorneys who had received a deed to certain valuable property from parties desiring to contest the title of other claimants thereto, in turn conveyed the same to the father-in-law of one of the members of the firm, a poor farmer living in another State, who knew nothing about the property, and who afterwards, as defendant in a suit to quiet title to it, had the cause removed to the United States court, on the ground of his citizenship, in such other State, and it appeared, upon all the evidence, that the conveyance was made to him collusively, for the mere purpose of giving the United States circuit court jurisdiction, held, that that court should refuse to entertain jurisdiction under the act of 1875 (Supp. Rev. St. U. S. 175), authorizing the dismissal or removal of cases not really and substantially involving a dispute or controversy properly within the jurisdiction of said court. A stipulation that the decisions of an issue in a case pending at law shall be taken and entered of record as the decision of the same issue in a suit in equity in the United States circuit court involving the same question, makes the decision in the law case equivalent to the decree of the United States circuit court, and nothing more; and the evidence taken on the trial of the issue being incorporated in the record on appeal to the United States supreme court, the question can be reviewed there. Little v. Giles, s. C. U. S., Nov. 1, 1886; 7 S. C. Rep. 32.
36. Usury–Usury as a Defense-Pleading-Evasion
of Local Lavs--Foreign Statute-What Constitutes-Mortgage-Foreclosure--Costs and FeesStipulation for Attorney's Fee--Void as Unconscionable.-An allegation that the note was made payable in SF, in another State, for the purpose of fraudulently evading the local usury laws, is bad, as not alleging any agreement between the parties to make it payable where it was made payable for any fraudulent purpose. To sustain an allegation of usury under the laws of a foreign State, the foreign statute must be pleaded as a fact, and such facts must be alleged as bring the case within the law. Four things are essential to a usurious contract: (1) A loan, express or impled; (2) an understanding between the parties that the money lent shall be or may be returned; (3) that for such loan a greater rate of interest than is allowed by law shall be paid, or agreed to be paid; and (4) a corrupt intent to take more than the legal rate for the use of the sum loaned. The court will not enforce an unconscionable allowance for attorney's fees in a mortgage, and, being unauthorized to make a new contract for the parties, will make no allowance therefor. Balfour v. Davis, S. C. Oreg., Oct. 28, 1886; 12 Pac. Rep. 89.
37. VENDOR AND VENDEE-Actual Notice-Mort
gage Bond for Deed – Equitable Effect of:Where an obligor of a bond for a deed of land, conditioned upon the payment of a promissory note executed to him by the purchaser, mortgages the land (with other land) for an amount greatly exceeding its value, and the note having been dishonored, he, subsequently to the execution of the mortgage, but prior to its being recorded, assigns said promissory note for value to another, he takes the note, and the rights incident thereto, subject to the mortgage, and the fact of the note being past due puts him on notice. The effect of a bond for a deed of land is to transfer the title in equity to the land to the purchaser, and the obligor holds the title merely as a security for the payment of the purchase money, and the assignee of a promissory note given by the purchaser is entitled to the benfit of the security. He can hold, then, against an assignment by the obligor of the land for the benefit of his creditors, made subsequent to the transfer of the note to him, and against a judgment not docketed prior thereto. Buckhart v. Howard, S.C. Oreg., Oct. 26, 1886; 12 Pac. Rep.
34. SET-OFF AND COUNTER-CLAIM — Judgment
Opening of-Terms-Duty of Defendant-ProofTime-Day-Fractional Part of. – A judgment against A was opened to enable him to prove that he had a set-off to plaintiff's claim, of the following character; that he had, on the day that plaintiff made an assignment for the benefit of his creditors, become the bona fide holder of a certificate of deposit issued by plaintiff whieh amounted to more than plaintiff's judgment. Held, that he was bound to prove
that he became the owner of the certificate of deposit before the time of the assignment, and that he had given a valuable consideration therefor. In this case, A having obtained the certificate of deposit upon the same day that plaintiff made an assignment for the benefit of his creditors, held, that it was competent for A to prove that he had become the owner of the certificate earlier in the day than the execution of the assignment. Collins v. McKee, S. C. Penn., Oct. 25, 1886; 6 Atl. Rep. 396.
38. Ways—Road-Award of Damages-Return
Amendment-Caveat-Review.-A return of the laying out of a public road by surveyors of the highways was amended by striking out an award of damages, for lands taken, to "the heirs of A, B,” and inserting in the lieu thereof a specific award to each individual owner. Held, that such owners had a right to caveat and procure a review of the necessity and utility of the road by chosen freeholders, after the original return was received by the county clerk, by taking the steps required by the statute within the time prescribed, and that such right was not revived or renewed by such an amendment to the return. State v. Craig, S. C. N. J., Nov. 5, 1886; 6 Atl. Rep. 430.
35. TROVER AND CONVERSION—Pleading--Proof.
A plaintiff can only recover secundum allegata et probata; and, under a complaint for the wrongful seizure and conversion of property, there can be no recovery for a misapplication of the proceeds of the sale of such property, where it appears that the possession of the property was obtained, and the
39. WILLS-Gift of "Share" in Estate, with Alter
native Gift.- Where a will devises and bequeaths an estate, real and personal, as a whole, in specified shares to certain persons named, and makes another disposition in case of their decease, before distribution, and appoints an executor to carry the will into effect, the title vests in the executor under the will, and the persons named have no vested interest before distribution. Banta v. Boyd, S. C. III., Oct. 6, 1886; 8 N. E. Rep. 671.
It is well arranged, divided conveniently into chapters, sections and sub-sections, has evidently been prepared with much care and labor, and furnished with a profusion of forms, which occupy but little less than one hundred pages of the volume. We have no doubt that it will be very favorably received by the profession in the State of New York and prove very useful in practice in that State. We must be permitted to doubt, however, whether it can carry out the promise embod. ied in its title-page, "adapted to all other States having similar practice.” We hardly think it possible to frame a work of this character, and bring it within reasonable dimensions, which shall be sufficiently exhaustive of the law and procedure of the principal State, and yet afford anything valuable or reliable to practitioners in other States, the codes of which vary in many minute but material particulars from that of the principal State. We think such works, however useful in their appropriate region, will prove unsatisfactory and misleading to the outsider.
40. WITNESS Accomplice Corroboration
Criminal Law- Trial-Instructions— Evidence of Accomplice-Credibility.---[n a trial under an indictment, the evidence of an accomplice may be corroborated, as to any material fact, even though that fact does not necessarily connect the prisoner with the offense. Where the court, in charging the jury, instructed them that they have the right to return a verdict of guilty upon the naked testimony of an accomplice, if they find such evidence sufficient to remove every reasonable doubt of the accused's guilt, such instruction is to be taken, in connection with a caution previously given, that an accomplice's evidence is to be received with great caution, and that it is generally unsafe to convict upon his uncorroborated testimony, and the verdict will not be reversed, on appeal, on the ground that the court, in effect, directed the jury to give the same credence to an accomplice's evidence as to that of any other person. State v. Maney, S. C. Conn. Sept. 11, 1886; 6 Atl. Rep. 401.
JETSAM AND FLOTSAM.
An Indiana justice of the peace, who had twentyseven of his twenty-eight decisions reversed by the higher court, has resigned in disgust and opened a meat market. He says that the professional courtesy which used to be a distinguished feature of tbe bench and bar has entirely petered out, and that a justice of the peace to-day is of no account.
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.]
An amusing incident, illustrating the free and easy manner of conducting proceedings in the courts of California, years ago, occurred during the trial of a case in Sacramento, before Judge Clark, (who weighed 364 lbs.), while pleading on the part of a young lawyer was going on, who was so tediously dull as to be uninteresting, one of the jurors fell asleep, where. upon the clerk wrote on a slip “one of the jurors is asleep,” and passed it up to the judge, who wrote in replv, “let him sleep, I would do the same thing, if I were in his place.”
QUERIES. Query 33. A private corporation advertises for bids on an important work, in the usual form, “reserving the right to reject any and all bids,” but opens the bids privately, no bidders being present, refuses to announce the respective bids, and awards the contract to a bidder who agrees with the company not to make public the contract price. Under such circumstances, has the lowest bidder any remedy at law by which he can recover his expenses and expected profits, or is the case one of damnum absque injuria ?
AN ALMAMAC AS A WITNESS.—John Philpot Curran, when a young attorney, defended a poor devil who was cbarged with robbing a nobleman. On trial the victim positively identified the thief, saying, though the robbery occurred at night, the moon was bright enough to allow him to see the face of his assailant. The driver and footman both gave similar testimony. Curran addressed the court and the jury. He pleaded that his client was not guilty-had been at home, fifteen miles away from the scene of the robbery at the time of its uccurrence. He could not prove an alibi, for a wife could not testify for her husband, and his chiid was not old enough to know the import of an oath; but he could introduce the only witness the prosecution had depended on for identification-the
" The driver and footman testified as they did because their master did so." There Curran called for the almanacs. Several of the red-bound pamphlets were brought in. The judge took one. Turning to the date of the robbery, which occurred at eleven o'clock, it was discovered that no moon arose that night, and the prisoner was acqnitted. He talked to Curran about it afterwards and the attorney said: “You gave me £20 to defend you. Well, I only got about £2 of that. It cost £18 to get those almanacs printed!”
THE LAW AND PRACTICE IN PROCEEDINGS SUPPLE
MENTARY TO EXECUTION under the New York Code, and adapted 10 ail the other States having similar practice, including Decisions to July, 1886. With Forms. Third Edition, Revised and Enlarged. By Daniel S. Riddle, and E. Fitch Bullard. New York: L. K. Strouse & Co., Publishers,
95 Nassau street, 1886. This is a local work which we may fairly inser from the fact that it is in its third edition, has received the approval of the profession in the State of New York.
The Central Law Journal.
RECEIVERS.—A decision of some importance was made a few days ago by U. S.
District Judge Gresham, in relation to the afST. LOUIS, DECEMBER 17, 1886.
fairs of the Wabash Railroad Company, its receivers, its bondholders and its stockholders.
The matter is entirely too intricate to be CURRENT EVENTS.
sketched, even in the most cursory manner in an article of this kind, and we only mentioned
it because it is a new evidence of the necesCOMMERCE AMONG THE STATES.—The decis
sity of legislation which will render the ion of the supreme court of the United States, receivership system that has grown up in the in the case of The Wabash etc. Co. v. Illi
federal courts less cumbrous and more equitnois, which we published in our last number,
able. The receiver in his normal state is a seems to render indispensable an early exer
useful, very convenient and quite harmless ercise by congress of the exclusive power part of the machinery of courts of equity. conferred by the constitution of the United
Under the practice of the circuit and district States to "regulate commerce
courts this officer has grown to such imporamong the several States.”
The decision, as
tance as to dwarf even the court itself. The we understand it, abrogates the supposed duty of the receiver, under the original design right of the States to regulate, within their
upon which the office was created, was to take respective jurisdictions, commerce among the
charge of the property committed to his care States, until congress shall see fit to exercise
by the court, sell it as soon as he can, with the authority over the subject conferred upon
due regard to the interests of all concerned, it by the constitution. Upon this supposed
pay the proceeds to the parties entitled, reright the Illinois statute was founded, and
port to the court and be denuded of his similar statutes exist in other States. All
trust. The receiver in his present state, fully these statutes are shorn of their efficacy,
developed, is well described by Mr. Justice except in matters of strictly local and domes
Miller in his dissenting opinion, in the case of tic concern, and commerce among the States,
Barbour.He says: “If these inter-state commerce as it is usually
receivers had been appointed to sell the called, is wholly unregulated and carriers en
roads, collect the means of the companies gaged in it may, throughout the United States
and pay their debts, it might be well enough. discriminate for or against any shipper or the
But this was hardly ever done. It is never shippers of any city or region, either directly
done now. It is not the purpose for which a or by means of special rates, rebates, draw
receiver is appointed. He generally takes backs or othes devices. As we understand
the property out of the hands of the owner, the decision, the power of the State to legis
operates the road in his own way, with an oclate on these subjects is limited to contracts
casional suggestion from the court which he for carriage, which begin and end within the recognizes as a sort of partner in the busiState lines; if the contract includes a mile or
sometimes but rarely pays some money a foot beyond the boundary; the State law
on the debts of the corporation, but quite as becomes a dead letter for the whole route to
often adds to them, and injures prior credibe traversed. The enormous volume of
tors by creating a new and superior lien on transportation of goods and passengers, from
the property pledged to them. During all one State into another, and across one or two
this time he is in the use of the road and rollor more States, imperatively requires some
ing stock, and performing the functions of a sort of regulation, some settlement of the
common carrier of goods and passengers. questions which have grown out of the traffic,
He makes contracts and incurs obligations, and some adjustment, upon, equitable prin
many of which he fails to perform." ciples, of the various interests of owners
The perversion of the office of receiver, and passengers on the one hand, and carriers
which Mr. Justice Miller so well describes in and corporations on the other.
the foregoing extract, is too firmly fixed in
1 23 Cent. L. J. 561. Vol. 23-No. 25.
2 104 U. S. 126.
the practice of the federal courts to be easily person authorized by law to solemnize the rites uprooted. It is based upon the reasonable of matrimony and then there, as she alleged, idea that, in spite of all manner of financial in fear for her life and her liberty, and against storms, the cars must run, passengers must her protest, they were married. The marriage ride and freight be carried. Therefore, the was never consumated, and, within a reasonreceiver must operate the road. But it does able time, we presume, she commenced pronot follow that he shall operate it forever- | ceedings to have the marriage declared a more, or that the foreclosure proceedings nullity. This was done by the court after a shall be indefinitely prolonged, in order that full hearing and much hesitation, and the he may so operate it. We do not attempt to London law journals are much exercised indicate in what manner congress can best about the matter. The Law Journal of Nov. remedy the abuses which the federal courts 20 fears that the ruling will “tend to confirm have permitted to grow up around the re the popular fallacy that a marriage is no ceivership system, but we think that the marriage if it has not been consummated.” interests of the public and justice to stock
In another article the same journal says: holders and creditors imperatively demand “Mr. Justice Butt says that 'the validity that such a reform shall be effected as will of a contract of marriage must be tested and remedy these evils, and to that end the determined in precisely the same manner as powers of subordinate federal courts over that of any other contract. For example, an matters of this character and many other ordinary contract may be set aside on the like subjects shall be distinctly defined and ground of fraud, and Mr. Justice Butt is of rigidly circumscribed.
opinion that a marriage may be set aside on that ground. But a contract obtained by fraud is voidable, not void. Therefore, a
lady or a man who has married under presNOTES OF RECENT DECISIONS.
sure may elect to ratify or repudiate the con
tract. The result of this appears to be to MARRIAGE DIVORCE THE SEBRIGHT introduce a new status into the law-namely, Case.—The reports of divorce trials are never that of half-married.
It is dif. dainty, by no means adapted to the use of ficult to put the finger on the precise ground schools, nor at all suitable for the domestic
on which the present marriage was set aside. fireside. English divorce cases are particu There was a little fraud, a little intimidation, larly malodorous, and after the stale fumes and a little weakness of mind. There was of the Crawford-Dilke case and the fresh and not enough of each to make a case, but all pungent odor of the current Lord Colin taken together were considered enough. Yet Campbell scandal, it is comparatively like a twenty white rabbits will not make a black breeze from Araby the blest, to get a whiff rabbit.” of a divorce suit of which the gravamen is not The Solicitors' Journal of the same date a breach of the seventh comandment.
says: Such a case is the Sebright-Scott case, of "To the delight of the impressionable part which, we are sorry to say, we have not seen of the public, and, we think, rather to the a full report. i'he facts, however, seem to surprise of the majority of the legal profesbe that the lady in the case having consid sion, Mr. Justice Butt has seen his way to erable property, had also an unfortunate granting a decree of nullity in Scott v. Sepropensity to run into debt, and the alleged bright, on the ground that the petitioner was, husband being a ready-money man contrived at tbe time of her marriage, incapable of conto become her creditor, and presumably made senting to the marriage contract.
. profits out of the transactions. Not content It may perhaps be questioned whether the with paring off slips and bits from her fortune case does not bear on the face of it something in this slow way, he resolved to take it all in like the judicial sanction of the dissolution of at one fell swoop by marrying her, peaceably a marriage by mutual consent, although, as if he could, or forcibly if he must. Accord Lord Penzance eloquently points out in Moringly the lady was inveigled into a meeting daunt v. Mordaunt,' the feature of non-reciswith him at a public office where there was a 1 2 P. D., at p. 196.