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If, however, this is a matter of right, open and com- This was right and proper, in order to define the remon to all, and which may be enforced by mandamus, spective rights and prevent conflict or confusion, but must not the proper authorities in such counties fur- clearly this act does not extend to a case like the nish suitable (room and facilities to accommodate all present. who may desire to exercise this right? If not, and It follows that the writ must be denied, with costs there is to be any discrimination, who shall be favored to respondent. - who shall be admitted and who excluded? How many clerks or assistants shall each applicant have the right to employ? Who shall determine what shall be LEGALITY OF STOCK EXCHANGE RULES AS considered a reasonable time within which each may

TO DEBTS BETWEEN MEMBERS. complete his abstract? And as the use of the public records cannot be thus handed over to the indiscriin

ENGLISH COURT OF APPEAL, FEB. 12, 1880. inate use of those not interested in their future preservation, how shall the register protect them from

EX PARTE GRANT; RE PLUMBLY. (42 L. T. Rep., N. mutilation? This he cannot do personally without

S., 387.) neglecting his official duties, and if he must employ clerks or appoint deputies for such purposes, at whose The rules of the stock exchange provide that a member expense shall it be, the law having made no provision

unable to fulfill his engagements shall be declared a defor such emergencies ?

faulter, and that thereupon the official assignee shall ix These and many other embarrassing questions must

the market prices, immediately before the declaration,

of the stocks and shares in which the defaulter has arise if this right is found to exist. It would not,

accounts open with members of the stock exchange, however, end here. This being a right which we might and that the differences due to the defaulter on that term one not coupled with an interest, must apply footing from members shall be paid to the official equally to the records in each and every public office. assigneo, to be set off and paid to those members to True, the copies or abstracts from each of the several whom on the same footing differences are due from the public offices might not bo so profitable to the parties

defaulter. making the same as would those from the register's

A member of the stock exchange having become a deoffice, but this would not go to the right to make the

faulter and gone into liquidation, sums were in accord

ance with the rules paid to the official assignee. abstract. May, then, parties in no way interested,

Held, that the trustee in the liquidation was not entitled other than as are these relators, insist upon the right

to take the money from the official assignee, and that to inspect and copy, or abstract, the records of our the rights of outside creditors were not affected. courts, of the treasurers of our counties, of the several

THIS was an appeal from a decision of Mr. Registrar may it not be extended to a like right in each of the Hazlitt, sitting as chief judge. several State offices? The right ouce conceded there The facts of the case were as follows: On the 25th is no limit to it, until every public office is exhausted. June, 1879, Plumbly, a stock-jobber, and a member of

The inconveniences which such a system would the London Stock Exchange, having given notice that engraft upon public offices; the dangers, both of a he was unable to meet his engagements, was declared public and private nature, from abuses which would a defaulter in accordance with rule 142 of the stock inevitably follow in the carrying out of such a right, exchange. The same day he filed a liquidation petiare conclusive against the existence thereof. It may tion, and a trustee was afterward appointed. Grant, be said that even admitting the right to exist, there the official assignee of the stock exchange, in obedience would be no such number of persons desirous of mak- to rule 168, closed all Plumbly's contracts with meming abstracts, and that the dangers pointed out would bers of the stock exchange, which were open for the not, therefore, arise, and in corroboration thereof the next account or settling day, the 27th June, at the past may be referred to. How far the uncertainty of maket prices on the 25th, of the various stocks and the existence of such an unlimited right in the past shares contracted for, and called upon those members may have kept the number of applicants within proper who on that footing were debtors on their contracts bounds, may have some bearing upon the question, with Plumbly, to pay to the official assignee the differand it may be true that the demand for abstracts of ences due from them. On hearing this the trustees title would have some effect upon the supply offered gave notice to the debtors to pay the money to him for sale.

instead of to the official assigneo. They however We must bear in mind, however, that the larger and paid them to the official assignee. The amount of more populous the county, the greater would be the these differences so received was 3,971., which sum demand, and because of the larger number of volumes was, under rule 168, divisible amongst those members of records in such a county, a correspondingly in- of the stock exchange who on the above-mentioned creased time and force would be required for each per- footing were creditors for differences on their contracts son to perfect his abstract, and the greater danger from with Plumbly. The rules of the stock exchange apply abuses exist. Besides, in ascertaining whether the to jobbers or dealers as well as to brokers. It appeared right exists, we have a right to inquire into the evils to be the practice of stock-jobbers to make two conwhich it would be likely to lead to, and may for this traots equal and opposite at once, so that a stock-jobpurpose follow up the natural and probable conse- ber's legitimate profit is the difference between the quences likely to result therefrom, and thereby deter- buying and selling prices, and the fact of stocks going, mine whether justified by the principle of the common- up or down in price does not affect him. The jobbes law decisions.

does not deal with an outside principal, but only wit) From what has been said, a very brief reference to members of the stock excbange. the statute will be sufficient. The language of the act By rule 64, payments can only be made by crosse

d referred to does not in clear and unmistakable terms checks to a banker whose checks go through the clea' include a case like the present, and such an one should ing house.

ID not be conferred by construction. The object of the Rule 142 is as follows: A member unable to ful act was to enable persons having occasion to make his engagements shall be publicly declared a defaul. examination of the records for any lawful purpose, and by direction of the chairman, deputy-chairman, or what would be we have already indicated, to have two members of the committee. suitable facilities therefor, to point out their rights and Rule 168 runs thus: In every case of failure th limitations therein, and the right and duty of the offi- cial assignes shall publicly fix the prices current de con-e oficial custodian of the records in connection therewith. market immediately before the declaration, aury office in the

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prices all persons having accounts open with the de- of the law of bankruptcy, what we call in fraud of the faulter shall close their transactions by buying of or law of bankruptcy, they are utterly void and of no selling to him such stocks, sbares, or other securities effect against the outside world. Any person of the as he may have contracted to take or deliver, the dif- outside world, e. g., the trustee in bankruptcy, retains ferences arising from the defaulter's transactions being all his rights against any debtor to the bankrupt, paid to or claimed from the official assignee. In the although he be a member of the stock exchange, just event of a dispute as to the prices named, they shall be in the same way as he would if those rules for payment fixed by two members of the committee.

to the stock exchange assignee had never been passed. Rule 171 provides that the balances in the hands of It appears to me, as Mr. Herschell has said, that his the official assignee belonging to defaulter's estates contention is not a technical one, but involves the shall be paid over once a month to the stock exchange whole of the merits of the case. benevolent fund. The trustee in the liquidation claimed the 3,9571. as

BAGGALLAY, L. J. I am of the same opinion. The part of the assets distributable among Plumbly's cred

distinction to be drawn between this case and that of itors.

Tomkins v. Saffery is a very marked one. In the latter The registrar being of opinion that the case was

Mr. Cook became a defaulter, and the official assigneo within Tomkins v. Saffery, 37 L. T. Rep. (N. S.) 758; L.

of the stock exchange being informed that he had no Rep., 3 App. Cas. 213, held that the trustee was entitled

creditors except stock exchange creditors, pressed him to the money.

to make over all his property for the benefit of his only The official assignee appealed.

creditors, and among other things he (Cooke) drew a

check for 5,0001. against his account at the Bank of Herschell, Q. C., and Romer, for the appellant. There England. It turned out that he had other creditors, is nothing illegal in the arrangement made by the stock and it was held that the interposition of the official exchange rules. By it, on a member's default, certain assignee of the stock exchange could not justify the moneys which do not belong to the defaulter are paid separation from his general assets of the 5,0001. Here by persons who had contracts with him in relation to there is no division of Plumbly's money. The official those contracts, to the official assignee for the purpose assignee holds no private assets of Plumbly, and of being paid over to other persons who also had con- the fund which he has collected is a fund collected by tracts with the defaulter. By the arrangement made virtue of certain rules of the stock exchange, certain by the rules, margins on both sides are made to exist sums ascertained in a particular way being raised from and are set off against each other. Suppose a number particular members of the stock exchange, and applied of persons, A, B, C, D, etc., have constant dealings iu a particular manner. In the view which I take of together, and on the terms that on default, say by B in the case, these funds cau in no respect be regarded as his coutract with A, A shall have the security of B's funds belonging to Plumbly. If, then, they are voluncontracts with the others. There would be nothing tary contributions of the members of the stock exillegal in that. The arrangement under the stock ex- change to be applied in satisfaction of the stock change rules only affects the members of the stock exchange creditors, or if they are to be regarded as exchange. A principal can come forward and adopt a moneys handed over by persons who had become surety contract according to the price on settling day. The to meet the claims of the stock exchange, I am unable trustee stands in Plumbly's shoes, and Plumbly's right to understand how in either view of the case they can to receive moneys due to him on his contracts would be claimed by the trustee. It certainly did at one time only arise on the 27th June, so that the trustee has no occur to me that some injustice might be done to the right on the 25th. They cited Rogers v. Kelly, 2 Camp. general creditors of Plumbly by the official assignee 123; Smith v. Union Bank of London, 33 L. T. Rep. taking these sums. But the true view of the case (N. S.) 557 ; 1 Q. B. Div. 31.

appears to me to be this: As far as regards any losing F. 0. Crump (with him Benjamin, Q. C.), for the

contracts entered into by Plumbly, the trustee in respondent.

bankruptcy or in liquidation is relieved from them,

and if on the other hand it is said that there may be JAMES, L. J. We do not desire to hear you further, some winning contracts, the answer, as far as regards Mr. Herschell, nor is it necessary to the determination them, is, that it would be impossible to realize on of the question that we should go into the case and them, because, when the time arrived for the complesay to what extent these contracts affect other con- tion of the contract, Plumbly could not and would not tracts. I canuot conceive that the contracts of the have been ready and willing to perform them. In outside world can be affected by what has been done making these observations I do not mean to imply that in this case under the rules of the stock exchange. If in such cases the contracts, whether losing or winning, they had any rights they still have them in their en- are absolutely void, but in regard to the case now tirety, wbatever they may be. I think in this case, under consideration, I am satisfied that no injury could beyond all question, that the money which was be doue to the outside creditors by the course pursued. claimed by the official assignee of the stock exchange

COTTON, L. J. All that we have to consider is, was not money which he was liable to pay to the trustee

whether the trustee in bankruptcy can obtain from the in bankruptcy. Ile claimed it bostilely to the trustee in bankruptcy; and how can the trustee in bankruptcy

official assignee of the stock exchange, as he is called, receivo it from him as money paid to his use? In my

the fund in question, and it seems to me that question idea the case is exactly this: Band C each say to A,

is shortly disposed of in this way: The fund is an ar“You owe me that 1001. ;” A pays it to one of the two;

tificial one, which has never belonged to the bankrupt,

but has been created by the rules of the stock exthe other has no right to sue the one who receives it. The official assiguee claims in his own right the differ

change for a particular purpose, and which only has ence, that is, the claim of the first man, aud of course

existence for the purpose of being dealt with in a parthe payment which was made would not discharge the

ticular way. What is to be done with any surplus debtor if the debtor had paid it to the wrong man; he

after all these purposes have been discharged is anwould be still liable to pay it to the other. Whatever

other question, but the trustee in bankruptcy wants to the liabilities and the rights may be of the outside

take from the official assignee of the stock exchange a world, they still remain. Either the rules of the stock

fund created for a particular purpose without applying exchange are binding on them, or they are not.

it to that particular purpose. In my opinion that he If

is not entitled to do. they are binding, they are binding in their entirety. If they are not binding, or are in any way in violation JAMES, L. J. The appeal will be allowed, and the

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costs will be allowed, unless there has been any ar- sonal observation, bad notice of the character of the rangement between the parties.

rainfall in that locality or the damage to the road-bed, Appeal allowed. Leave to appeal to the House of but on the contrary, it appears that to all external apLords granted.

pearance the road-bed and track were sound and in

good order; that the train at the time was running at WHEN CARRIER NOT LIABLE FOR INJURY

but little over half speed, not by reason of any appre

hended danger, but to prevent passing a place at which TO PASSENGER.

it was intended to take on wood.

The charge was calculated to mislead the jury by TEXAS SUPREME COURT, MARCH 16, 1880. making the liability of the defendant turn upon the

dangerous condition of the track and the state of the INTERNATIONAL & GREAT NORTHERN RAILROAD Co. weather, without submitting, in this connection, the V. HALLOREN.

question of the knowledge of this condition on the

part of those in charge of the train. The testimony Railroad companies are not insurers of the safety of their having shown that the road-bed and track were in

passengers further than could be required of the exer- good condition until affected by this sudden heavy cise of such high degree of foresight as to possible dan- rainfall, the knowledge of this changed condition by gers, and such high degree of prudence in guarding

those in charge of the train was a material ingredient against them as would be used by very cautious and prudent competent persons under similar circum

in the alleged negligence, and as such should have

been submitted to the jury. Withers v. North Kent R. stances. An unprecedentedly heavy rain, not general, fell in a local.

Co., 27 L. J. Exch. 417. ity upon a railroad which was built in the best manner The third and fourth errors assigned involve the with sound iron and ties, and was only three years old, question of the liability of a railroad company for the causing the road-bed to be so impaired as to occasion safe carriage of its passengers. the upsetting of a train in which plaintiff was a passen- A carrier of passengers upon an ordinary road is not ger, injuring him. At the place of the accident a train

responsible for its condition, as it is not under his conhad passed over about two hours previous to its occur

trol and supervision. rence, leaving the track safe, as far as could be seen. An inspection had been made between that time and

A different rule, however, prevails as regards a railthe time of the accident and the road found in good

road corporation, which, under extraordinary grants condition, and it was still so to all appearance when the

of franchise, builds, controls, and generally has the injured train ran on to it. This train was then running

exclusive use of its road-bed and track. at a reduced rate of speed and was in good condition A passenger on a railroad train, by reason of the and properly manned. Held, that the railroad company risk naturally incident to this mode of travel, has the was not liable to plaintiff for his injury.

right to demand of the company for his safe passage, CTION for injury to plaintiff received from an ac

that high degree of care and skill wbich very cautious cident to one of defendant's trains upon which

persons generally, in their line of business, are accusplaintiff was a passenger. Sufficient facts appear in

tomed to use, under similar circumstances, to prevent the opinion. From a judgment for plaintiff defend

danger. This care and skill pertains to the original ant appealed.

construction, by competent engineers and workmen, of

the road-bed, track, engines, cars, and other appliBONNER, J. The first and second errors assigned in ances necessary to carry on properly the business of this case bring into review so much of the general its road, and to operate its trains; the frequent and charge of the court, as, in effect, instructed the jury careful examination of the same, to see that they have that the liability of the defendant company depended been thus constructed and have been kept in safe conupon “the manner and speed of running the train, dition and repair to prevent accidents, so far as human considering the condition of the track and the state of skill and foresight could have reasonably anticipated the weather, if that in any way superinduced the ac- and avoided; and also to the employment of a sufficident."

cient number of good, steady and competent agents The ground of complaint against the company as and employees to so conduct and control the train as alleged in the petition was, that “the gross negligence, to insure its careful and skillful management. carelessness and mismanagement of its agents and If the company is negligent in any of these particuemployees, and the unsafe and dangerous condition lars, and this negligence is the legal cause of injury to of its road, caused the car in which plaintiff was the passenger, it is liable in damages. Shearm. & Redf. riding to be thrown froin the track and upset; where- on Neg., S$ 266, 269, 444; Angel on Carriers, $$ 538, 540. upon and by reason of said gross negligence, careless- Railroad companies, however, are not insurers of ness and mismanagement of defendant by its agents the safety of their passengers further than could be and employees, as aforesaid, and the unsafe and dan- required by the exercise of such high degree of foregerous condition of its road, and the throwing off the sight as to possible dangers, and such high degree of car in which plaintiff was riding from the track and prudence in guarding against them which would be upsetting the same, plaintiff received great personal used by very cautious and prudent competent persons injury," etc.

under similar circumstances. Angell on Carriers, s$ There was no special demurrer to the petition that 568, 570; Cooley on Torts, 642; Galena & Chicago R.R. it did not allege the particular acts of gross negligence, Co. v. Fay, 16 Ill. 558; Bowen v. N. Y. C. R. R. Co., carelessness and mismanagement upon the part of the 18 N. Y. 411; McPadden v. N. Y. C. R. R. Co., 44 agents and employees of the company; and under the id. 478. pleadings, had the evidence warranted the charge as This is not understood to require of the comgiven, the subject-matter of it was proper for the con- pany every possible precaution which ingenuity sideration of the jury.

might suggest or the skill of science might afford, by The testimony showed that about three or four hours which accidents might be avoided; but means that it before the accident happened an unprecedentedly heavy should adopt such precautions of known value which fall of rain occurred in that immediate locality, but have been practically tested, and should employ such that it had not been sufficient upon the line of the necessary skilled labor, service and experience, as is road, even on that part of it, to stop or impede the reasonably within its power to have secured. regular running of the trains, and it does not show The test of liability is, not whether the company that the agents and employees in charge of this partic- used such particular precautions as evidently, after ular train, either from information or their owu per- the accident happened, might have averted it, had the

PREMISES

danger been known; but whether it used that degree that the defendant company had used a commendable of care and prudence which very cautious, competent degree of skill, prudence and vigilance in the construcpersons would have used under the apparent circum- tion and management of its road, and that the misstauces of the case, to have prevented the accident, fortune to the plaintiff was the result of one of those without reasonable knowledge that it was likely to inevitable accidents of which passengers assume the have occurred. Shearm. & Redf. on Neg., $ 266; Bowen risk, and for which the law does not hold the company v. N. Y. C. R. R. Co., 18 N. Y. 408.

responsible in damages. Angell on Carriers, $ 523. A railroad company is required to so construct its We are of opinion that the court erred in the charge road-bed and track as to avoid such damages as could as above shown, and also in refusing a new trial, behave been reasonably foreseen by competent and skill- cause the verdict was contrary to the law and the eviful engineers, from the ordinary rainfalls and dence, for which errors the judgment is reversed and freshets incident to the particular section of the the cause remanded. country through which they are constructed, but would not have been guilty of such culpable negligence

MAINE SUPREME JUDICIAL COURT ABas to make it liable in damages, if it failed to provide

STRACT.* against such extraordinary floods or other inevitable casualties, caused by some hidden force of nature,

HUSBAND AND WIFE — ACTION OF ASSUMPSIT NOT unknown to common experience, and which could not

MAINTAINABLE BETWEEN.-An action of assumpsit on have been reasonably anticipated by the ordinary en

account annexed to writ cannot be maintained by a gineering skill and experience required in the prudent

wife against her husband while the connubial relation construction of such railroads. If an accident should

remains in full force. Neither party to the marriage happen from such cause on a road-bed and track

contract can sue the other at common law while the which had been properly constructed and kept in good

marriage relation subsists, and this rule is not allowed repair,fwhen the agents and employees in charge of the

by a statute providing that “she may prosecute and train were in the due exercise of that degree of cau

defend suits at law or in equity either in tort or contion and prudence necessary at all times; and when

tract in her own name without the joinder of her husthey did not have, from information conveyed to

band for the preservation and protection of her propthem, or from their own personal observation, reason.

erty and personal rights, or for the redress of her able grounds to anticipate impending danger, and

injuries as if unmarried.” See Crowther v. Crowther, consequently did not use such extraordinary precau

55 Me. 358. Hobbs v. Hobbs. Opinion by Appleton, tion as might have otherwise averted it, then the

C. J. law characterizes it as an act of God, or such inevit- MORTGAGE RENT OF MORTGAGED able accident as is incidental to all human works, and MORTGAGEE NOT ENTITLED TO.- A mortgagee is not which would relieve the company from liability. Even entitled to the rent of the mortgaged premises from under the rigid rules of the common law, which made the tenant of the mortgagor till he takes possession, or common carriers insurers of the safe delivery of all requires the tenant to attorn to him. Prior thereto articles committed to their care, such cause would the mortgagor is entitled to the rent. The mortgagor, have excused them. Shearm. & Redf. on Neg., $ 290; so long as he remains in possession, or until entry by Withers v. North Kent R. R. Co., 27 L. J. Exch. 417; the mortgagee, may receive the rents and profits to Railroad Co. v. Reeves, 10 Wall. 176; Livezey v. Phila- his own use and is not liable to answer for them to the delphia, 61 Penn. St. 106.

mortgagee. Boston Bauk v. Reed, 8 Pick. 459. He is The undisputed facts in this case show, substan- not even liable for those accruing between the comtially:

mencement of action to foreclose and the time of 1. That defendant's road was of first-class, only taking possession upon execution. Mayo v. Fletcher, three years old, and in good order at the place of the 14 Pick. 525. The purchaser of the equity stands in accident; that the ties and iron were sound and the place of the mortgagor, with a right to take the good.

rents and profits to his own use until the mortgagee 2. That in the latter part of the day, and about the shall enter or do some equivalent act. Field v. Swan, dark of the day of the accident, an unprecedentedly 10 Metc. 112. Long v. Wade. Opinion by Appleton, heavy rain fell in that locality, which was not general, C.J. but which caused the embankment to give way under

PARTNERSHIP- PARTNERS SIGNING NOTES IN INDIthe train as it passed over the place, and thus caused

VIDUAL NAMES - WHEN CREDITOR MAY ELECT BEthe disaster.

TWEEN FIRM AND INDIVIDUAL LIABILITY - INSOLV3. That the track at that place was sound and in

ENCY.-Two persons, partners, not having adopted good condition as far as could be seen only 125 min

any firm nane, made notes in their individual names, utes prior to the occurrence, when the north bound

one as maker and the other as payee and iudorser, and train passed over it.

got the notes discounted at a bank, for the purpose of 4. That between that time and the occurrence of the accident, that section of the road embracing the place using the money obtained thereon and using it in their

partnership business. They are in insolvency and of the accident was inspected, and found and left in

have estates both as partners and as individuals. It good condition, and was still in good condition at the

was known to the bank, when the notes were distime the wrecked train ran on it, as far as could be

counted, that they were partnership paper or given for seen; had its usual appearance to an engineer who had

partnership purposes. Held, that the bank had an been running over it ever since the road was built.

election to prove its claim either against the partner5. That the train and engine were in good condition, having been so found on examination only one hour

ship estate, or against the estates of the individual

members of the firm; but was not entitled to prove before the accident, and were properly manned.

them against both the joint and the several estates. 6. That the accident occurred seventy minutes after leaving Palestine, and sixteen miles from that place,

The bank having filed the claims against all the estates when the train was running at about half speed, on a

before the rule affecting its interests had been estab

lished by statute or judicial decision, a reasonable track which was apparently safe at all times for that

time is allowed to reconstruct the proofs in accordance rate.

with the principles of the decision given. In re War7. That it had rained during the day at Palestine,

ren, Davies, 327; E.r parte Foster, 2 Story, 131; In re but not so hard as to make it necessary to give orders in reference to the track.

Holbrook, 2 Low. 362; Paino v. Dwinel, 53 Me. 52; The evidence, as thus disclosed by the record, shows

* To appear in 70 Maine Reports.

In re

Palmer v. Elliott, 1 Cliff. 63; Ex parte First National Venard v. Cross, 8 id. 248. A railroad company has no Bank of Portland; In re Thompson. Opinion by higher rights in a highway than an individual — it may Peters, J.

share in its use, but cannot monopolize it; and the

owner of a lot abutting on the highway, and who has JOINT AND SEVERAL NOTE GIVEN BY PARTNERS

special need thereof for ingress to and egress from his - WHEN CREDITOR MAY HOLD BOTH FIRM AND INDIVIDUAL PARTNERS — INSOLVENCY. - The holder of a

lot, is specially damaged by any monopolizing of the joint and several note given by partners in their part

use of the highway by a railroad company. Where the nership name, they being in insolvency as partners and

appropriation charged is in the manner of construcindividuals, is entitled to prove his note against the

tion, and in leaving its cars constantly standing upon joint estate of the firm and also against the several es

the track, either is a wrong, giving plaintiff a cause of tates of the individual members of the firm, and to

action. Haynes v. Thomas, 7 Ind. 38; E., eto., R. R. receive dividends from all the estates. In re Farnum,

Co. v. Combs, 10 Bush, 382; J. M. & I. R. R. Co. v. 6 Bost. L. Rep. 21, an important case upon this ques

Esterle, 13 Bush, 667; Stetson v. C., etc., R. R. Co., 75 tion not reported elsewhere. See, also, In re Weston,

Ill. 74; Street Railway v. Cumminsville, 14 Ohio St. 523. 12 Metc. 1; Borden v. Cuyler, 10 Cush. 476; Ex parte

Where the wrong done by the railroad company is Farnsworth, 1 Low. 497; In re Holbrook, 2 id. 259;

temporary in its nature, as in leaving cars unnecesMead v. National Bank, 6 Blatchf. 180 ;

sarily on its track, or while engaged in the work of Cram, 1 B. R. 132; In re Bigelow, 2 id. 374; In re Tes- laying down its track, something existing to-day and son, 9 id. 378; Emery v. Canal Bank, ñ id. 217; In re

not to-morrow, fluctuating in extent and depending Dow, 14 id. 307; Simpson v. Henning, L. R., 10 Q. B.

on the ever-repeated action of the company, ouly such 406; Ex parte Honey, L. R., 7 Ch. 178; Ex parte Stone,

damages as have fully accrued prior to the commenceL.R., 8 Ch. 914; In re Plummer, 1 Phil. 56. The holder is

ment of the suit are recoverable, and none based upon entitled to receive dividends upon the whole claim,

any presumed continuance or repetition of the wrong. provided he does not receive in all more than his full

But where the wrong is of a permanent nature, and due, unless he has received a dividend on one estate

springs from the manner in which the track as fully before making proof against another. Where a divi

completed affects approach to the lot, then, notwithdend has been paid, and generally when declared, on

standing the right which the State retains to control the one estate before proof is made against another, the

manner of use of a highway by a railroad company,even amount thereof should be deducted, and a dividend

if deemed necessary to compel an entire removal of its from the balance only allowed from the other. Sohier

track, the lot-owner may treat the act of the company v. Loring, 6 Cush. 537; Ex parte Wildman, 1 Atk. 109;

as a permanent appropriation of the right of access to Ex parte Taylor, 1 De Gex and J. 302; E.x parte Tal

his lot, and recover as damages the consequent deprecott, 2 Low. 320; Ex parte Harris, id. 568. When the

ciation in value of the lot; and in such cases the recovmembers of a firm, having no firm name and no joint

ery of damages is a consent on the part of the lot-owner estate other than that of the firm, give a joint note in

to such manner of occupying the street, and concludes their individual names for money borrowed for and

both him and any subsequent owner of the property. used in their partnership business, such note is proy

L., etc., R. R. v. Applegate, 8 Dana, 294; LeClercq v. able in insolvency against their partnership estate.

Gallipolis, 7 Ohio, 217; Cincinnati v. White, 6 Pet. 431; This mode of signing partnership paper is as effectual

Mix v. L. B. & M. Ry. Co., 67 Ill. 319; Stone v. F. P. as any other mode. Agawam Bank v. Morris, 4 Cush.

& N. W. R. R. Co., 68 id. 394. Central Branch Union 99; Trowbridge v. Cushman, 24 Pick. 310 ; In re

Pacific Railroad Co. v. Twine. Opinion by Brewer, J. Thomas, 17 B. R. 54; Richardson v. Higgins, 23 N. H.

HOMESTEAD — MAY BE IN BUILDING UPON LEASED 106; Tucker v. Peaslee, 36 id. 167; Maynard v. Fel

GROUND- - USE OF PART OF PREMISES FOR BUSINESS lows, 43 id. 255; Kendrick v. Tarbell, 26 Vt. 512; Turner

PURPOSES. – A party may acquire a homestead in a v. Jaycox, 40 N. Y. 470; Norton v. Seymour, 3 Man. G.

building occupied as a residence by his family, al& S. 792; Brackett v. Stokes, 58 Tenn. 412; Tilley v.

though the building is erected upon ground in which Phelps, 18 Conn. 295; In re Warren, Davies, 324; For

he has but a leasehold interest. Although a building sythe v. Woods, 11 Wall. 486; Hoare v. Oriental Bank,

upon leased ground is taxable by statute as personal L. R., 2 Ch. 589; Waite v. Foster, 33 Me. 424; Paine v.

property, and although the lessee has the right to reDwinel, 53 id. 52; 1 Pars. on Cont. 214. Berkshire

move the building at the termination of his lease, and Woolen Co. v. Julliard, 75 N. Y. 535. When partners

although he mortgages it as personal property, yet the make covenants under seal, the true mode of signing is

homestead character remains as long as the building is individually. Ex parte Nason, In re Thompson.

not removed and is occupied as a residence by his famOpinion by Peters, J.

ily; and such mortgage is of no validity unless his

wife joins the in or consents thereto. In Sears v. KANSAS SUPREME COURT ABSTRACT. *

Hanks, 14 Ohio St. 301, the court, speaking of the

homestead law, says: “We think its provisions proJANUARY TERM, 1880.

tect the debtor's family as against his creditor to the

enjoyment of an actual homestead, irrespective of the EMINENT DOMAIN - RAILROAD STREET - LIA

title or tenure by which it is held.” Iu Spencer v. BILITY ABUTTING OWNER - MEASURE OF DAM

Geissman, 37 Cal. 99, it was held that one having a AGIS. - Wbile a railroad company may, when licensed mere naked possession, the title being in a stranger, by the proper authorities, occupy a street or alley with may acquire a homestead right as against everybody its track, yet if in laying down such track it so changes but the true owner. See, further, on the general printhe established grade, or in any other manner so lays ciple: Deere v. Chapman, 25 Ill. 612; Bartholomew v. its track as to permanently obstruct access to an ad- West, 2 Dill. 293; McKee v. Wilcox, 11 Mich. 358; joining lot, or if it unnecessarily and unreasonably Thorn v. Thorn, 14 Iowa, 49; Pelan v. De Bevard 13 leaves its cars standing on the track so as to interfere id. 53; Conklin v. Foster, 57 111. 104; Johnson v. Richwith approach to the lot, the lot-owner may recover ardson, 33 Miss. 462. Where it is shown that a builddamages therefor, and a petition which in general ing is occupied as a residence by the family of the terms charges such wrongs is good as against attack owner, and neither the size nor the number of rooms made simply by objecting to the admission of testi- appears, further than that it is a oue-and-one-half nony. A. & N. R. R. Co. v. Garside, 10 Kans. 552; story frame building, the homestead character is not

destroyed by proof that one or two rooms thereiu are * To appear in 23 Kansas Reports.

used by himself and wife for business purposes. In re

IN

TO

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