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an intermediate order which it is sought to have received on appeal. Where one of the errors as. signed is the making of an order striking out a plea, and a statement of the making of such order in and as one of the grounds of a motion for a new trial is the only showing in the record that such an order has been made, and it appears that such motion has been denied by the circuit court, the fact that such an order has been made by the circuit court will not be assumed, nor can a review of the alleged order be based on the mere statement in the motion. Where the only plea or where all the pleas to the declaration are of new matter and there is no replication and consequently no issue of fact, it is error to submit the case to a jury for trial; and such error may be taken advantage of primarily on appeal. Livingston v. L'Engle, S. C. Fla., June 17, 1886.
23. RailwAY COMPANY– [Charter) Abuse of Corporate Franchise — Objection made in Name of State. The objection that a railroad corporation is not althorized by its charter to acquire any easement or interest in lands not necessary for the operation of its road, can only be raised by the State in a proceeding for the abuse of corporate franchise, and is not available in defense of a suit for the specific performance of a contract. “The weight of modern authority is that such objection can not be raised collaterally, but can only be made at the instance of the State, for the abuse of corporate franchise. Waterman on Spec. Per. § 226; Kansas City Horse R. R. Co. v. Horel, 79 Mo. 632; S. C. 20 Am. & Eng. R. R. Cas. 17, and note; Parish v. Wheeler, 22 N. Y. 494; Thompson v. Lambert, 44 Iowa, 239; Wilcox y. Toledo etc. R. R. Co. 43 Mich. 534; Wilks v. Ga. Pacific Ry. Co., S. C. Ala. Dec. Term, 1885-86.
the assessment, in the possession of purchasers from his heirs. Carlisle v. Watts, S. C. Ala., May
18, 1886. 26. Trust.- Equity-Will- Pleading.-Where pro
perty is bequeathed to a trustee, to be taken care of, and the profits and interest to be paid annually to the testator's married daughter, "for the use and support of herself and her children during her natural life, and at her death the whole of said property to go and become the absolute property of her lawful heirs;" the daughter and her children may join a bill for an account and settlement of the trust, the removal of the trustee, and the appointment of another in his stead. When a trustee is appointed by the register in chancery, gives bond, and enters on the discharge of the duties of the trust, and a bill in equity is afterwards filed by the beneficiaries, charging waste and loss of the trust funds, as king an account and settlement, the removal of the trustee, and the appoint. ment of another; he and his sureties are estopped from denying his liability to account, on account of any informality in his appointment. The defense of the statute of non-claim may be taken by demurrer, when the bill seeks to enforce a demand which is prima facie within the statute, and does not aver presentation, nor state facts which avoid the bar. Under a bond executed by a trustee appointed by the register in chancery, conditioned for the faithful performance of his duties, a liability does not accrue to the beneficiaries against the sureties until there has been a default by their principal, and the statute of non-claim (Code, s 2597) does not begin to run until such default.
McDowellv. Brantley, S. C. Ala., July 2, 1886. 27. WILL.—“Male Issue,” Interpretation- Eject
ment.-A testator devised land to his daughters for life, and, at the death of the survivor of them, "10 the male issue then living of my said son, Richard, their or his heirs and assigns, in fee; but, if no such issue shall then be living, in such case I give the same unto all the children of my said daughters, Catherine and Sarah, and my said son, Richard, their heirs and assigns, in equal parts, according to the number of them.” Testator's son, Richard, was not married at the time of tes. tator's death, and the daughters died unmarried and without issue. An action of ejectment having been brought by one of Richard's daughters, as heirs to her son, against her two brothers, held, that the words “male issue” in the will denoting the whole class of male descendants, whether descended through males or females, and the plaintiff's son coming within that class, she was therefore entitled to recover his share. Wistar v. Scott, 105 Pa. St. 200, followed. Wistar v. Gillilan,s. C. Penn., Feb. 8, 1886, 4 Atl. Rep. 815.
24. REPLEVIN-Bond-Undertaking Construction
of—The condition of an undertaking executed by a defendant in action for the recovery of chattels, for the purpose of reclaiming them, does not become fixed and determined until the final determination of the action, and if there be an appeal, not until the appeal has been disposed of. Such undertaking may be allowed to be amended in furtherance of justice. Objections to the form of the undertaking properly arise upon the application for its allowance, and amendments thereto may then be allowed. Corn Exchange Bank v. Blye, N. Y. Ct. App. April 27, 1886. 3 Cent. Rep. 301.
25. TAXATION. - Jurisdiction – Tax Sale.-Under
the act approved February 12, 1879, providing for the sale of lands for delinquent taxes, the powers conferred on a probate court are special and limited; and to sustain a decree of sale, the record must affirmatively show jurisdiction both of the subject-matter and of the person. The statute requires that notice, the form of which is prescribed, must be served upon the owner, his agent or representative, or left at his residence; or, if the owner is unknown, or is a non-resident, must be given by publication; and such notice is preliminary and essential to jurisdiction of the person. The lands being assessed to “Est. Robert Carlisle, reputed owner,” the notice directed in the same way, and returned executed by leaving a copy, “at residence of Robert Carlisle;” the court has no jurisdiction to order the sale, when it is shown that Robert Carlisle died many years before, that his estate had been finally settled and distributed, and that the lands were, at the time of
QUERIES AND ANSWERS.*
1 Oorrespondents 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.)
11. A. B. & C. sign a petition for dramshop license; § 4 of Dramshops, session Acts, 1883, of Mo. C. after
wards reconsiders his action and in writing, petitions the county court to cause his num to be erased from or held for naught on dramshop petition. His plea being filed before the 4th day of July, and before action had on dramshop petition, should the court grant his prayer?
12. A lease for a store-room made for one year, contains the following covenant: “And that the party of the second part shall have the privilege of leasing the above described premises for two more years, after the expiration of this lease, at the same rate per annum.” After the year for which the lease was made, the lessee keeps the premises for ten months, pays the same rent per month, and in manner as described in said written lease. The tenant now leaves the premises; can the landlord hold him for the two years rent? Is not the keeping of the premises for ten months and paying in accordance with the terms of the lease,a ratification on the tenants' part and a contract for two years' more leasing? Or does the case come within the statute of frauds? Cite authorities.
G. & F.
administrator. How can the money be collected, and what steps should the administrator take to 'enforce the collection?
SUBSCRIBER. Shelbyville, III.
Answer An attorney in California is not obliged to account or pay money to the administrator of his client, appointed in Illinois. The following extract from the California Code of Civil Procedure, $ 1913 is conclusive on this point.
"_The authority of a guardian or committee, or an executor or administrator does not extend beyond the jurisdiction of the government under which he was invested with his authority."
The attorney is only responsible to an administrator of his client appointed in California, and therefore the proper way to get the money out of his hands, is to bave an administrator appointed in California, who can collect the money and pay it over to the person who can show to the satisfaction of the proper California court that he is entitled to it.
Under the law of California, an absentee who is entitled to receive property or money from an administrator, may appoint an agent to receive it. Or if he does not, the court will appoint an agent to take possession for the absentee, the agent in such case must give bond and is entitled to compensation. Cal. Code Civ. Proced., $$ 1691, 1692.
query 36. [22 Cent. L. J. 310.] A corporation organizes with a capital stock of $30,000, $45,000 is paid in cash, and after the concern has been running some tine, the appraisement of the real estate is increased 2,000, and stock to that amount issued to the stockbolders in proportion to the amounts then held by them, no money being paid for said increase. Afterwards the concern promulgates a statement showing a surplus of $15,000. Shortly after making this statement the capital stock is increased, and the new stock is sold, the statement of the affairs of the concern beiug used to induce persons to purchase the stock. Two years later the concern becomes insolvent. Are the original stockholders liablə to purchasers of the new stock, who had no notice that the $5,000 represented "water" nor that the surplus consisted of worthless paper, and if so, what would be the measure of dama
Ansurer. If the value of the property of a corporation has increased, the corporation can issue pro rata to its stockholders new paid up stock to that amount, or can apply it in the same manner as a payment on stock not fully paid up. Howell v. Chicago & N. W. R. R.51 Barb. 378; Morawitz on Corp. § 349; Kenton F. R. & M. Co. v. McAlpin, 5 Fed. Rep. 737. Since it is not stated, that the real estate had not increased $3,000 in value, por that the corporation did not have a surplus of $15,000, we cannot see that any wrong has been done, or that any one liable. If, however, both these representations were fraudulent, an action for deceit may be maintained, but it must be shown, that The person charged made the representations, that They were false to his knowledge, and that these representations were relied on and were the inducing cause for parting with the property. Arthur v. Griswold, 55 N. Y. 400; Wakeman v. Dalley, 51 N. Y. 27. It would be difficult to hold any stockholder to any liability for deceit relative to a third party for the reports made to the corporation or for its proceedings, all of which concern and are intended for the corporation alone. To hold a party for deceit he must have been guilty of it personally, or must have authorized the lise of his name for that purpose.
S. S. M.
ELEMENTS OF RIGHT, AND OF THE LAW.–To which
is added an historical and critical essay upon the several theories of jurisprudence. By George H. Smith. Ante omnia videndum est quid sit justitia, quid jus, quid jurisprudentia. PANDECTS. San Francisco: A. L. Bancroft & Co., Law Publishers, Booksellers and Stationers. 1886.
This is not a law book in the sense in which we usually employ that term, nor, indeed, in any other sense. It is properly a philosophical treatise upon those fundamental principles of right which underlie all positive human law, those principles which all Jaw-givers of all nations, and of all ages, have recognized as the substratum upon which they must needs erect their systems of polity. This substratum is justice, taken in both senses, the general sense in which it is, according to Aristotle, synonymous with virtue, and includes everything meritorious in human action; and the particular, which is merely a limitation of the operation of this broad principle to limited and special circumstances, things and persons. Right in its broadest sense is the correlative of justice, what the latter must accord may be demanded in the name and by virtue of the former. Upon these correlated principles is founded all human government, and from them are derived all the multitudinous details of the adminis tration of law, in all its various forms.
Upon these general principles are founded the theories of the author on the functions of government in the administration of justice, the enforcement of rights and the redress of wrongs.
It would be inappropriate, in a cursory notice like this, to attempt anything like a thorough analysis of the views on these abstract subjects which the author has evolved with so much labor and thought. It must suffice to indicate the general course of the treatment of the subject which he has adopted. In his first Book he proposes to treat of the “Elements of Right,” of the
Query 13. An attorney in California collects money from an estate there, for the widow who resides here. She died and the attorney refuses to pay over to her
function of government with reference to the administration of justice, of the classification of rights, their relation to morality, their origin, as by contract, custom, or otherwise, their character as public or private, and their relation to persons and to things. His second Book treats of the “Elements of Law," including, as well, the jus gentium, as the municipal law ordinarily: enforced in courts. This division of the subject is less vague and indefinite than the former, the author sketches the origin and progress of the common law of England, and the influence of the Civil Law upon it. The third Book is devoted to an “Historical and critical review of the several theories of Jurisprudence.”
Our space will not permit us to say more than to repeat what we have already said, that this is not in any proper sense a law book, although it purports to treat of Law and of Jurisprudence; it is really a phil. osophical treatise on those subjects, and as such, we commend it to those persons who have the leisure and inclination to devote themselves to studies of that description.
A fledgling attorney, occupying a seat in the court, here desired to air his powers, and said, “Pshaw! you don't comprehend at all. His honor means, Did the prisoner say to you, 'I was drunk?”
Witness (reflectively)—"Waal, he might have said you was drunk; but I didn't hear him.
Counsel for the prisoner-"What the court desires is to have you state the prisoner's own words, preserving the precise form of pronoun he made use of in his reply. Was it in the first person, I; second person, thou or you; or in the third person, he, she or it? Now then, sir (with severity)-upon your oath, did not my client say, "I was drunk?”
Witness (getting angry)—“No, he didn't say you was drunk neither. D’yer suppose the poor feller charged the whole court with being drunk ?” A LAWYER NEATLY CAUGHT. – A
young Toledo lawyer has been sent to the work. house for kissing
girl with whom he was voyaging in an elevator. It is not chronicled that the damsel's features were the pouting challenge which sometimes provokes, if not justifies, such a liberty, dangerous as the liberty may prove; in fact, as far as we know, not a word of explanation fou the culprit has gone abroad. The only inference to be drawn thus far is that Toledo's young ladies are not to be kissed without their consent. Perhaps when this manacled limb of the law emerges from captivity, if he be at heart a gentleman and the young woman be faney free-well, who knows what romance may follow? At any rate, here is a hint to novelists.
(And were it known that he remained several months,having haughtily deciined an offer for“pardon on condition of his promising to have nothing more to do with the girl," tendered him on the third day of his confinement, it were still a better "hint to novelists." Verily chivalry is not dead yet, and the profession, in the person of Mr. lays claim to the most chivalric man of the age).
In an action for breach of promise of marriage tried recently in the Queen's Bench Division, the plaintiff's counsel read the following letter: “My dear NellieI hope to have a letter in the morning from my dear Nellie. The wind and weather here are something D-D-D—"- Mr. Justice Hawkins: What does that mean?–Mr. Austin: I think it is for your lordship to construe written documents.- Irish Law Times.
JETSAM AND FLOTSAM.
ALTERNATIVE SERVICE OF PROCESS. The following return, made by a very conscientious officer, shows that he was determined to do his whole duty and take all the chances. We are a little curious to know what Mrs. Smith did with the copy of the summons left with her for her dead husband, and how the sheriff expected that the copy would reach the hands, or come to the knowledge of the deceased. We venture to say that if Mr. Smith in his new status had been as conscientious as the sheriff, and had taken it into his head to "materialize," and "personally to be and appear” as required by the terms of the summons, there would have been a very badly frightened court.-ED. CENT. L. J.
“Received this summons on this 9th day of June, 1885, at 5 o'clock P. M., and served the same in my county,
-, on the 16th day of June, 1885, on the within named defendant, Jane Smith, by delivering to her in person a true and certified copy of this summons, with all the indorsements thereon. John Smith is dead, but a copy of said summons was left by me at his usual place of residence, with Jane Smith, for him. June 19, 1885.
CONFOUNDING THE PRONOUNS. The following squib is as old as the hills, but perhaps some of the juniors have never heard it:
A policeman who had arrested a man for disorderly conduct was trying to tell his story as a witness in court against the culprit, when the judge interrupted with this inquiry:
“What did the man say when you arrested him?” "He said he was drunk.”
“I want his precise words, just as he uttered them. He did not use the pronoun he, did he?”
“Oh, yes, he did; he said he was drunk-he acknowledged the corn!”
The Court (getting impatient at witness' stupidity) -"You don't understand me. I want the words as he uttered them. Did he say, "I was drunk?”
Witness (zealously)—"Oh, no, your honor; he did'nt say you was drunk. I wouldn't allow any man to charge that upon you in my presence!"
In these times of bribery it is well enough for law. yers to know just how far they can safely go in social attentions to the judges. When Edward I returned to England in August, 1289, his first care was to reform the abuses that had crept into the administration of the law during his absence. All the judges were exam. ined before the new parliament, and on proof of extor tion were tined; only two judges out of the whole bench were found not guilty. From this time the judges were obliged to swear upon their introduction to office, that they would take no money or presents of any kind except at breakfast from such persons as had suits de pending before them. We may thereupon conclude that to treat a judge to a breakfast is not bribery at common law. Drinks are not mentioned. Probably from their effects they would not come within the same category. Arm chairs were ruled out in Judge Bar. nard's case. Ex.
The Central Law Journal. Besides this ruin thus approaching with
mathematically accellerating strides, Judge
Deady recognizes the further evils of the ST. LOUIS, JULY 30, 1886.
purchased voters, the venal aldermen, and
other indicia of corruption, at once the cause CURRENT EVENTS.
and consequence of the bankruptcy which he
deprecates, and for all this he sees no remedy CITIES AND Towns.—Under this title, Judge
more practicable than a restriction of the M. P. Deady, of the U. S. District Court of Or
right of suffrage, not a property qualificaegon, delivered an address to the University
tion exactly, but a limitation of the right to of Oregon, upon its Commencement day,
vote, to men who own property and pay taxes 1886. The subject was, of course, Munici
upon it, or are householders and pay rent. pal Corporations, and although the treatment
If this is the only remedy that can be de
vised for the deep-seated and wide-spread of the subject was characterized by the author's well-known learning and ability, and
corruption that exists among the managing presents very startling facts and figures, we
politicians of so many towns and cities, the think he has failed to propose a practical political dogma, which, more than any other,
case is indeed hopeless, for if there is one remedy for the evils which he has so clearly
has attained the dignity of res jndicata, it is depicted. How important the subject is, and how
the proposition that every man over twentylarge a proportion of the people of the United one years of age has a right to vote in the States are interested in it, is evident from
ward, town, county, or State of his domicile. the fact that nearly one-fourth (22.5 per
Women may be allowed to vote hereafter, or cent., according to the census of 1880) of
they may not. However that may be, men the people of the United States live in towns
of mature age must have the right to vote in and cities, and their persons and property
all elections, National, State, county or mu
nicipal. There may be a few localities, oldare subject to municipal, as well as State and National legislation. And that proportion
fashioned boroughs, that have not, as yet,
reached this stage of progressive Democracy, steadily increases, the rich seek the cities be
they are exceptions and prove the rule, and cause of their comforts, luxuries, and pecu
the rule, of manhood suffrage, is as immutaniary advantages and conveniences, ; the en
ble as the laws of the Medes and Persians. terprising because of the facilities and op
Once conferred, suffrage cannot be taken portunities for money making, which, in so many different forms, they present; the
away, and any reliance upon such a possibili
ty is futile and unwise. criminal and depraved, for the sake of the
That most of the maladministration of plunder which they hope to acquire. In the
municipal affairs results from the neglect of aggregate, as Judge Deady shows, the urban
the “solid men” of the community, is conpopulation of the United States increased, be
ceded, and as these men can control the aftween 1870 and 1880, forty-three per cent., a
fairs of the corporations, if they will, and much larger proportional increase than that of the whole country, but during the same
suffer more than any others from their failperiod the debts of the cities and towns were
ure to do so, it would seem to be only a doubled, the municipal taxes were increased
question of time as to when they would be in proportion, and in 1880 exceeded, by one
sufficiently quickened, by self-interest, to fourth, the aggregate of State and county
take the necessary steps to place suitable taxes. From this, Judge Deady concludes:
men at the head of municipal affairs. If they
will not help themselves, nobody can help “At this rate the people of the towns are
them, legislative interference, repeals or modconsuming their capital or anticipating the ifications of charters are of little avail. If future, and must in time become bankrupt. those, whose interest it is that corporate matIt matters little how well the National and
ters shall be well managed, will take no part State Governments are conducted ; if this
in municipal government, it must needs fall
into the hands of those whose interest it is growing canker continues it will eventually
that they should be ill-managed, and there corrode and destroy them both.”
can be no doubt of their activity. Vol. 23.-No: 5.
RELATIONS OF THE STATE TO MUNICIPAL indirectly engaged in the preparation of leg. CORPORATIONS.—Speaking of municipal cor
islative measures connected with municipal porations, a very able address on the above affairs, our suggestions are not altogether insubject was recently delivered before the appropriate. If legislators should more diliTennessee Bar Association, by Hon. II. M.
gently investigate the projects submitted to Wiltse, of Chattanooga. The subject is one
them by persons interested in municipal afthat deserves very careful consideration by
fairs, a partial remedy for municipal misgovlawyers as well as legislators. A very large
ernment, and its consequent scandals and proportion of the losses, inconvenience, and
losses, would be found; but the radical cure misgovernment of our urban population can
will only be applied when the solid men, be directly traced to the faults of the legisla-financially and personally, for we do not tures, by which they are chartered. These
mean rich inen only, shall give to the affairs are faults of omission, commission, and some
of the city or town attention of the same kind times of corruption. The organic laws of
and, approximatively, to the same extent, municipal corporations, their charters, are
which they bestow upon their own personal not contracts, but can be changed or abro
estates and pursuits. gated at the pleasure of the legislature, and consequently there is no right or interest especially dependent upon municipal law, DIVORCE LAW AGAIX.--Our article, in the which is not liable to be very seriously affect third number of this volume, on "Divorce ed by the machinations of the lobbyist. As Law," has elicited a letter from a gentleman already intimated, the legislative fault is of New Orleans, commenting upon our sugthree-folol: doing too little, doing too much, gestion in the last paragraph of our article, and acting corruptly. Like all other private that the six months post-divorce period of legislation, that connected with municipal probation might well be borrowed from our corporations is chietly promoted by outsiders, English friends." and, as we have elsewhere stated, men most Why borrow from England, or any other active in municipal affairs do not usually re foreign country, when you have the law present the real interests of the community, ready made at home. In Louisiana absolute and hence, when powers are conferred at the divorce can be obtained, before the courts, instance of such persons (probably to be ex only in cases of adultery, or where the spouse ercised by them), no adequate safeguards has been convicted of infamous crime. In are provided against the abuse of such all other cases a separation from bed and powers. This fruitful
of board (a mensu et thoro) must be first prothe jobs, corruption and consequent loss nounced, and after the expiration of one which are so rife in our larger cities. It is year from the rendition of such judgment, the consequence either of culpable negligence then, on proof that no reconciliation has takor downright corruption on the part of legis en place, final decree of divorce is rendered. lators, generally of the corruption of the few, In many instances the reconciliation does and the complaisance and negligence of the take place, and happy re-unions are the remany. Less considerable places sometimes sult. suffer from the omission of needed legisla The theory of our law is precisely that sugtion, this, however, is neither very frequent gested by the article, that divorce is, at best, nor very serious in its results. The chief
a sad necessity, and every opportunity should evil which in this connection afflicts the peo
be afforded to prevent the separation, which ple of so many of our towns and cities, is, that should take place, in its nature, only at the the legislation which affects them is procured death of one of the contracting parties. for personal advantages by non-representa
G. A. B. tive men, and conceded by legislatures from
The Louisiana law of divorce is in the inertia, complaisance, or worse motives.
highest degree commendable, and in the othThis is more properly a legislative than a le er States the practice on that subject is, relagal sub ject, but as so many of the profession tively unobjectionable. Nevertheless we reare either legislators themselves, or directly or iterate our remark, that,“under the practice of