Imagens da página
PDF
ePub

an intermediate order which it is sought to have received on appeal. Where one of the errors assigned 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 authorized 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.

[ocr errors]

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

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 property 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 appointment 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, § 2597) does not begin to run until such default. McDowell v. Brantley, S. C. Ala., July 2, 1886.

27. WILL.-"Male Issue," Interpretation-Ejectment.-A testator devised land to his daughters for life, and, at the death of the survivor of them, "to 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 testator'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.

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.

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 name 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? J.

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.

QUERIES ANSWERED.

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 time, the appraisement of the real estate is increased $5,000, and stock to that amount issued to the stockholders 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 being used to induce persons to purchase the stock. Two years later the concern becomes insolvent. Are the original stockholders liable 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 damages?

Answer. 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 $5,000 in value, nor that the corporation did not have a surplus of $15,000, we cannot see that any wrong has been done, or that any one is 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 use of his name for that purpose. S. S. M.

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

administrator. How can the money be collected, and what steps should the administrator take to enforce the collection? SUBSCRIBER. Shelbyville, Ill.

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 have 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.

[blocks in formation]

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 law-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

[ocr errors]

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 philosophical 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.

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.

Sheriff.

The following

CONFOUNDING THE PRONOUNS. 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!"

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 workhouse for kissing a 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 for 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 fancy 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 declined 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.

IN these times of bribery it is well enough for lawyers 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 extortion were fined; 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 depending 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 Barnard's case. Ex.

The Central Law Journal.

ST. LOUIS, JULY 30, 1886.

CURRENT EVENTS.

CITIES AND TOWNS.-Under this title, Judge M. P. Deady, of the U. S. District Court of Oregon, delivered an address to the University of Oregon, upon its Commencement day, 1886. The subject was, of course, Municipal Corporations, and although the treatment of the subject was characterized by the author's well-known learning and ability, and presents very startling facts and figures, we think he has failed to propose a practical remedy for the evils which he has so clearly

depicted.

How important the subject is, and how large a proportion of the people of the United States are interested in it, is evident from the fact that nearly one-fourth (22.5 per cent., according to the census of 1880) of the people of the United States live in towns and cities, and their persons and property are subject to municipal, as well as State and National legislation. And that proportion steadily increases, the rich seek the cities because of their comforts, luxuries, and pecuniary advantages and conveniences,; the enterprising because of the facilities and opportunities for money making, which, in so many different forms, they present; the criminal and depraved, for the sake of the plunder which they hope to acquire. In the aggregate, as Judge Deady shows, the urban population of the United States increased, between 1870 and 1880, forty-three per cent., a much larger proportional increase than that of the whole country, but during the same period the debts of the cities and towns were doubled, the municipal taxes were increased in proportion, and in 1880 exceeded, by onefourth, the aggregate of State and county taxes. From this, Judge Deady concludes:

"At this rate the people of the towns are consuming their capital or anticipating the future, and must in time become bankrupt. It matters little how well the National and State Governments are conducted; if this growing canker continues it will eventually corrode and destroy them both."

Vol. 23.-No. 5.

Besides this ruin thus approaching with mathematically accellerating strides, Judge Deady recognizes the further evils of the purchased voters, the venal aldermen, and other indicia of corruption, at once the cause and consequence of the bankruptcy which he deprecates, and for all this he sees no remedy more practicable than a restriction of the right of suffrage, not a property qualification exactly, but a limitation of the right to vote,to men who own property and pay taxes upon it, or are householders and pay rent.

If this is the only remedy that can be devised for the deep-seated and wide-spread corruption that exists among the managing politicians of so many towns and cities, the case is indeed hopeless, for if there is one

political dogma, which, more than any other, has attained the dignity of res jndicata, it is the proposition that every man over twentyone years of age has a right to vote in the ward, town, county, or State of his domicile. Women may be allowed to vote hereafter, or they may not. However that may be, men of mature age must have the right to vote in all elections, National, State, county or municipal. There may be a few localities, oldfashioned boroughs, that have not, as yet, reached this stage of progressive Democracy, they are exceptions and prove the rule, and the rule, of manhood suffrage, is as immutable as the laws of the Medes and Persians. Once conferred, suffrage cannot be taken away, and any reliance upon such a possibility is futile and unwise.

That most of the maladministration of municipal affairs results from the neglect of the "solid men" of the community, is conceded, and as these men can control the affairs of the corporations, if they will, and suffer more than any others from their failure to do so, it would seem to be only a question of time as to when they would be sufficiently quickened, by self-interest, to take the necessary steps to place suitable men at the head of municipal affairs. If they will not help themselves, nobody can help them, legislative interference, repeals or modifications of charters are of little avail. If those, whose interest it is that corporate matters shall be well managed, will take no part in municipal government, it must needs fall into the hands of those whose interest it is that they should be ill-managed, and there can be no doubt of their activity.

RELATIONS OF THE STATE TO MUNICIPAL CORPORATIONS.-Speaking of municipal corporations, a very able address on the above subject was recently delivered before the Tennessee Bar Association, by Hon. H. M. Wiltse, of Chattanooga. The subject is one that deserves very careful consideration by lawyers as well as legislators. A very large proportion of the losses, inconvenience, and misgovernment of our urban population can be directly traced to the faults of the legislatures, by which they are chartered. These are faults of omission, commission, and sometimes of corruption. The organic laws of municipal corporations, their charters, are not contracts, but can be changed or abrogated at the pleasure of the legislature, and consequently there is no right or interest especially dependent upon municipal law, which is not liable to be very seriously affected by the machinations of the lobbyist. As already intimated, the legislative fault is three-fold: doing too little, doing too much, and acting corruptly. Like all other private legislation, that connected with municipal corporations is chiefly promoted by outsiders, and, as we have elsewhere stated, men most active in municipal affairs do not usually represent the real interests of the community, and hence, when powers are conferred at the instance of such persons (probably to be exercised by them), no adequate safeguards are provided against the abuse of such powers. This is a fruitful source of the jobs, corruption and consequent loss which are so rife in our larger cities. It is the consequence either of culpable negligence or downright corruption on the part of legislators, generally of the corruption of the few, and the complaisance and negligence of the many. Less considerable places sometimes suffer from the omission of needed legislation, this, however, is neither very frequent nor very serious in its results. The chief evil which in this connection afflicts the people of so many of our towns and cities, is, that the legislation which affects them is procured for personal advantages by non-representative men, and conceded by legislatures from inertia, complaisance, or worse motives.

This is more properly a legislative than a legal sub ject, but as so many of the profession are either legislators themselves, or directly or

indirectly engaged in the preparation of legislative measures connected with municipal affairs, our suggestions are not altogether inappropriate. If legislators should more diligently investigate the projects submitted to them by persons interested in municipal affairs, a partial remedy for municipal misgovernment, and its consequent scandals and losses, would be found; but the radical cure will only be applied when the solid men, financially and personally, for we do not mean rich men only, shall give to the affairs of the city or town attention of the same kind and, approximatively, to the same extent, which they bestow upon their own personal estates and pursuits.

DIVORCE LAW AGAIN.-Our article, in the third number of this volume, on "Divorce Law," has elicited a letter from a gentleman of New Orleans, comnrenting upon our suggestion in the last paragraph of our article, "that the six months post-divorce period of probation might well be borrowed from our English friends.” He says:

Why borrow from England, or any other foreign country, when you have the law ready made at home. In Louisiana absolute divorce can be obtained, before the courts, only in cases of adultery, or where the spouse has been convicted of infamous crime. In all other cases a separation from bed and board (a mensa et thoro) must be first pronounced, and after the expiration of one year from the rendition of such judgment, then, on proof that no reconciliation has taken place, final decree of divorce is rendered. In many instances the reconciliation does take place, and happy re-unions are the result.

The theory of our law is precisely that suggested by the article, that divorce is, at best, a sad necessity, and every opportunity should be afforded to prevent the separation, which should take place, in its nature, only at the death of one of the contracting parties.

G. A. B.

The Louisiana law of divorce is in the highest degree commendable, and in the other States the practice on that subject is, relatively unobjectionable. Nevertheless we reiterate our remark, that, "under the practice of

« AnteriorContinuar »