Imagens da página

Where Transcript has been Filed in District Court.-In a proceeding to revive a judgment in the county court, where the judgment debtor, on an order to show cause why the judgment shall not be revived, for such cause shows, by affidavit, that the judgment has been paid and satisfied, it is error for the county court to render final order of revivor without hearing testimony as to such payment or satisfaction. There being a presumption in favor of such payment and satisfaction, the burden and proof is on the judgment plaintiff to show that the judgment is unsatisfied. When the transcript of a judgment rendered in a county court is filed in the district court of the same county, all proceedings should thereafter be had in such district court; but, in the absence of a statute prohibiting the court in which the judgment was rendered from proceeding further in the case, a judgment of revivor rendered in such court wiil be valid. The county court possessing such jurisdic. tion, it is not error to exercise it. Garrison v. Aultman, S. C. Neb., Nov. 4, 1886; 30 N., W. Rep. 61.

23. LESSOR AND LESSEE-Renewal Lease-Waste.

-A court of equity will interfere to restrain a tenant holding under a perpetual renewable leaes from removing buildings on the leased premises when it appears that such removal would greatly impair and endanger the security for the rent reserved, so long, however, as the rent reserved is not rendered insecure by the acts of the tenant holding under snch a lease, his right to manage the property in his own way cannot be interfered with. Crowe v. Wilson, Md. Ct. Appls., June 23, 1886; 7 East. Rep. 314.

20. LANDLORD AND TENANT-Lease-Construction

- Steam Furnished by Landlord.-A demised to B certain premises known as the fonndry building yard space for necessary stock and materials, the joint use of a pattern-shop, and the engineroom adjoining the foundry, for the annual rent of $500. It was further provided by the lease that B “ shall pay fifteen cents per hour for the steam furnished to his engine" by A, “and he shall have the right to use the tools in the pattern-shop; but, in consideration therefor," A" shall have the use without charge of the power of the engineof A whenever required in the pattern-shop. Held, that this was not a covenant on the part of A that he would furnish the steam necessary to carry on the business of B, nor that B should take any steam. Penn Iron Co. v. Diller, s. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 272.

24. MORTGAGE-Future Advances-Validity-Bill

21. Rent-Joint Tenants- Amendment-Liability of

Landlord for Failure to Repair-Custom.-One joint tenant of real estate can not maintain in his own name an action for rent of premises leased in the name of boib; but after a plea in abatement for non-joinder, a justice's court may make the other joint tenant a party to the suit, and permit the case to proceed to judgment on its merits. A landlord is not bound to repair, unless there is a covenant or agreement on his part to do so, and in an action for rent a tenant cannot recover for damnges to his goods caused by a leaky roof, of which the landlord had notice; nor is it admissible, in such an action, to show a general custom of the place for landlords to repair. Weinstein v. Harrison, S. C. Texas, Oct. 26, 1886; 1S. W. Rep., 626.

to Redeem Interest Payment for ServicesDemand.-A mortgage given to the defendant to secure him for advances which he had made, and which he might make thereafter, for the benefit of the mortgageor in the settlement of the latter's affairs, and for the services rendered by the defendant in such settlement, is valid, though first given to a person for the benefit of the defendant, and afterwards assigned to the latter; and upon a bill brought to redeem, by the holder of a second mortgage on the same property, who took with knowledge of the origin and character of the first mortgage, thelatter, before he can redeem, must pay the debt intended to be secured by the first mortgage. One who holds a mortgage to secure payment for services rendered to the mortgageor cannot recover interest on the sum due for services, for which no demand of payment has been made. Upon a bill brought by the holder of a second mortgage, where it appears that the defendant held the first mortgage to secure him against liability upon an indenture, the purposes of which have been fully executed, the latter will not be permitted to continue to hold the mortgage as security for an alleged liability which does not exist. Taft v. Stoddard, S. J. Ct. Mass., Oct. 22, 1886; 8 N. E. Rep. 586.

25. Priorities Promissory Notes Inter

est-Foreclosure-Sale-Civil Code hy.-W executed his note to J for money borrowed, payable in a limited time, with interest from maturity at 8 per cent. per annum. At the time he executed to her six other notes, with F & B as sureties, for a certain sum each, which became due, respectively, during the time, as semi-annul installments of interest. W, to secure the payment of seven notes, executed to her a mortgage on land, in wbich it was stipulated that, if F & B were compelled to pay any of the interest notes, they were to be substituted to her rights, but subject to her superior lien. Afterwards, W borrowed of F & B a sum of money, for which he gave his note, bearing a certain rate of interest until paid, and payable in a given time, and to secure the payment of this note he executed to them a mortgage on the same land. F & B also paid to J for W the interest notes. Subsequent to this loan by F & B to W, and at the maturity of the principal note, J agreed with W in writing to extend the time of payment of the notes three years further, and to reduce the rate of interest payable thereon to 7% per cent. In proceedings to foreclose the mortgages, held, that no part of the proceeds of the property should be applied to pay interest on the semiannual installments of interest on the principal debt in favor of J until the debts of F & B were satisfied. Where, in an action to foreclose a 31.

22. LEGACIES — Decree-Action-- Pleading-Debts,

Charges and Expenses-Action at Law-Statute. -In an action against an executor to recover a legacy on the decree of the probate court, where the statute provides that after the payment of dehte, funeral charges, and expenses of administration, the legatees shall be ascertained and their gifts fixed, the complaint need not allege the payment of these debts, charges and expenses. In an action against an executor to recover a legacy, it need not be alleged that the legacy is in the possession of the executor. An action at law against an executor to recover the amount of a legacy, can be maintained without the aid of a statute. Weeks 0. Sovles, 8. C. Vt., Sept. 8, 1886; 22 Reporter, 639.

mortgage, the sum of money to be raised amounts to upwards oi $20,000, and the court directs that $2,000 of this amount shall be paid in cash, and the balance in six and twelve months, a sale on these terms is not a sale on reasonable credit, within the meaning of Civil Code Ky. Willett v. Johnson, Ky. Ct. Appls, Nov. 6, 1886; 1 S. W. Rep. 674.

26. NEGLIGENCE.-Proximate Cause-Defects not

Causing Injury Railroads. – Plaintiff, in uncoupling defendant's cars, caught his foot in a brake-beam. He signaled the engineer, but his signal was not at once seen. When perceived, the engine was reversed, and the train stopped immediately, but too late to prevent injury to plaintiff. The engine was defective, and hard to reverse, which is plaintiff's ground of action. Ileld, that the defect in the engine was not the cause of the injury, and defendant was not liable. Bajuse 0. Syracuse, etc. Co., N. Y. Ct. Appls., Oct. 12, 1886; 8 N. E. Rep. 529.

27. NUISANCE Railroad Company Engine

House Next to Dwelling Justification Under Legislative Authority-Legislative Sanction Not Inferred.-The erection by a railroad company of an engine-house and coal-bins in the city of New York, on a lot adjoining property used as a residence, and their maintenance in such a manner as to render such property unhealthy and unfit for a residence, and to depreciate it in value, creates a private nuisance for wbich, as between individuals, an action would lie for damages, and for which a court of equity would grant a remedy by injunction; and the company cannot, in such proceedings, justify under an act of the legislature giving the company a right which they had not had at the time of the erection of such enginehouse, to enter the city on the tracks of another railroad "on such terms, and to such point, as might be agreed upon between the companies.” A statutory sanction cannot be pleaded in justification of acts which by the general rules of law, constitute a nuisance to private property, unless they are expressly authorized by the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred. Cogswell v. New York, etc. Co., N. Y., Ct. Appls., Oct. 5, 1886; 8 N. E. Rep. 537.

basis, one partner cannot, in a subsequent suit by the other for a balance due him under the settlement, set up the fact that the property transferred by him to the other did not amount to as much as he supposed it would. One partner who, at a set. tlement on a dissolution of the partnership, transfers to the other certain stock of two manufacturing corporations, in which both partners were in. terested, the.stock being then at par, is not liable to have set-off against a judgment subsequently recovered by him against the other partner for a sum due him on the settlement, but omitted by mistake, a depreciation in the stock of one of the companies, caused by the failure to collect a note executed to it by the other corporation subsequent to the settlement, although at the time tbe transfer was made the partner making it agreed to pay the other a certain proportion of the accounts of such company as should prove uncollectible. The fact that, upon a dissolution of partnership, it was agreed between the partners tbat each should give the other demand notes, without interest, for the balances found due between them, does not deprive one partner, wbo subsequently recover a judgment against the other, for a sum not paid him on the settlement by mistake, of interesi on his claim; and interest runs, not from the discoyery of the mistake and demand, but from the date of settlement. An abstract setting out, among other things. what is called the decision of the court below, showing detailed findings of facts, and the opinion of the court thereon, is not properly a part of the record, and the costs of printing should be taxed to the appellee, who filed it. Donahue v. McCosh, S. C. Iowa, Oct., 27, 1886; 30 N. W.

Rep. 14. 29. PAYMENT--Presumption- Possession of Note

and Contract.--Plaintiff sold a piano to defendant on a contract, taking her promissory notes for the unpaid purchase price, stipulating that the title was to remain in him until the notes were paid. The defendant's husband obtained the notes and contract from the a.torney who held them for collection, and delivered them to his wife, informing her he had paid them, and receiving in consideration the release of a debt he owed her. The plainttiff, not having received the proceeds of the notes, brought this action of replevin. Held, the production of the notes and contract by the defendant raised the presumption of their release and discharge according to their tenor, and was a good defense; and proof that they were received from the attorney, and the proceeds not received by plaintiff, did not rebut the presumption or amount to proof of non-payment. Hollenburg v. Lane, S. C. Ark., Oct. 23, 1886; 1 S. W. Rep. 687.

28. PARTNERSHIP-Dissolution-Parol Proof of

What Figures, Used as Basis for Dissolution
Meun Estoppel Evidence Settlement
Set-0.j" and Counter-Claim Depreciation in
Stocks Taken by One Partner Interest
Mistake - Demand- Cost 8 Appeal -- Unneces-
sary Abstract

Printing.--In an action by one partner to recover a balance due him by the other on a settlement and division between them when the partnership was dissolved, the plaintiff may be asked if there was anything in certain fig. ures which had been made between the parties at the time of the dissolution intended to show the difference in value between the property he got and the property the defendant got on the division; it not appearing from the figures themselves what they were intended for. When partners who are about to dissolve partnership agrees as to how the figures should be ascertained, or the value of the firm property determined, and the course agreed upon is pursued, and the property divided on that

30. REPLEVIN-Damages-Suit on Bond-How St.

Mich. $ 8375.-- Where the plaintiff fails, after replevying and obtaining the property-beasts which had been impounded for destroying defendant's corn-the defendant may have an assessment covering every claim arising out of the distress and damages dore him by the beasts. The defendant is not restricted to his suit on the bond for assessment of damages. Sterner v. Hodgson, S. C. Mich., Oct., 28, 1886; 30 N. W. Rep. 77.

Goods Sold-Authority of Purchaser's Agent- Verdict --Objection to Evidence-- Waiver - Motion for Verdict.-In an action of replevin to recover property seized under an attachment, where the defendants, having pleaded a general denial, rely upon an alleged sale and delivery thereunder to defeat the plaintiff's claim, and there is evidence tending to show that the agent of the vendee by whom the alleged purchase was made had no authority to make such a contract, it is not error for the court to overrule a motion by the defendants to airect the jury to return a verdict for them, and, if the defendants elect to stand upon their motion, to direct the jury to return a verdict for the plaintiff. Where the court overrules a motion by the defendants to direct the jury to return a verdict for them, and the defendants elect to stand upon their motion, they thereby waive any errors in the admission of evidence that had previously occurred. Battis v. McCord, s. C. lowa, Oct. 26, 1886; 30 N. W. Rep. 11.

note, defendant pleads that it was without consideration, as given for an alleged balance of old transactions, which included two notes actually paid in a settlement, in which a farm was deeded to plaintiff in full liquidation of all debts, leaving a balance coming to defendant of any excess obtained on sale, it is competent for defendants to introduce the deed in evidence, not as conclusiye proof of the consideration for the farm, but as an element of the settlement relied upon in determining the question whether the notes which were the consideration of the note sued on were included in the settlement made when the deed was given. Duflo v. Juif, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep. 105.

32. SALE-Bona Fide Purchaser--Conditional Sale

--Notice Possession. Where the vendee takes possession under a conditional sale, in which the title remains in tbe vendor until payınent, and mortgages the goods to one ignorant of the condition and of the right of the vendor, and the vendor is never paid, the possession gives no right to pass title, the vendor is not estopped from asserting title, and the mortgagee gets no title which he can assert against the vendor. McIntosh v. Hill, S. C. Ark., Oct. 16, 1886; 1 S. W. Rep. 680.

36. SURETY-Principal and Surety-Liabllity of

Surety Receiver Settlement of Partnership Affairs.-In an action for a settlement of partnership affairs and the appointment of a receiver, the defendant was allowed by the court to remain in possession, on giving his bond, with a surety, to “ abide by the future orders of the district court in the case.Held, that such bond will hold the surety for the amount of the final order of settlement, and bis liability under it will not be restricted to the duties of the defendant as receiver merely. Stull v. Lee, S. C. Iowa, Oct. 25, 1886; 30 N. W. Rep. 6.


Reaping Machine-Delivery in Part 8– Rescission-Delay in Delivery.-Under a contract for the purchase of a reaping machine, the delivery will not be complete until the different parts, which pone but an expert can put together, have been set up so as to form a machine. Where the testimony for the defendant tended to show that he purchased a reaping machine, with the understanding that it should be delivered to him, fit for use, on or before a certain day, when it was necessary for him to begin his harvest, and the machine was only delivered in parts, boxed up, on that day, the vendor's expert not offering to set it up until three days later, the defendant's right to refuse the machine should go to the jury upon the theory presented by him. Wood Moving-Machine Co.v. Gaertner, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep. 106.

37. TRESPASS - When may be Maintained- Vendor

and Vendee Timber License. - A agreed in writing to sell to B the timber standing on certain land, and provided that the same should be cut and removed in two years. Afterwards he agreed verbally with B to extend the time for cutting and removing the same, but before the time had expired A made a sale of the land to C, who had actual notice of the the parol agreement with B, and who forbid his cutting any more of the timber. In an action of trespass on the case, brought by B against C for the value of the timber, held, that the agreement for extension was a license to B, which C had a right to revoke; that B had a right only to remove the timber which he bad cut until forbidden by C to cut any more; and that he could maintain no action against C for the value of the standing timher. Williams 1. Flood, S. C. Mich., Nov. 4, 1886; 30 N. W. Rep. 93.

34. SETTLEMENT Descent Wife's Property

Claim of Next of kin-Agreement Between Husband and Wife.--Where husband and wife, natives of Germany, by their equal labor and thrist accumulated property in real estate, and the husband deeds it to his wife, and, on her death, never having had children, her lands go to her next of kin, who live in Germsny, and who, upon demanding the lands of the husband, are met by bis statement that there was an agreement between him and his wife that the property should go to the survivor of them, to be by said survivor devised equally among the relatives of each, and the parties finally settled by mutually deeding a moiety to each other, this settlement, in the absence of any overreaching by the husband, will be upheld as eminently fair and equitable. Seive v. Steinreide, Ky. Ct. Appls., Oct. 30, 1886; 1 S. W. Rep. 672.

38. Wills-Construction-Contingent Remainder

--Distribution Based on Contingency.--A testator having provided in his will: "If, at my death, there shall be any surplus stock or personal property, or any cash or cash notes, on hands, it is my will and desire that the stock and personal property may be sold, the money collected and loaned out during the life of my wife, and, at her death, I desire that it may be divided between my said daughter and granddaughter:" Held, that the words created a contingent estate, dependent upon the death of the wife, in the daughter and granddaughter, both as to the principal and inierest of the “money collected and loaned out” after the sale mentioned. When the gift is created simply by directing the payment or distribution of the legacy at some future period of time after the decease of the testator, or upon the happening of a contingent event, and there is no provision in the will for vesting the legacy immediately, then the future time fixed, or the bappening of the contingency, is of the essence of the gift. Willett v. Rutter, Ky. Ct. Appls., Oct. 5, 1886; 1 S. W. Rep. 640.


Evidence--Deed Consideration-Prom. issory Note.-Where, in an action on a promissory

39.. WITNESS-Discredit ing--Refusal to Answer

Interrogation as to Crime.--Where the issue is whether notes have been paid, the refusal of the former clerk of plaintiffs, on being examined as to business transactions concerning the notes in suit, to answer interrogatories as to whether he had embezzled the funds of plaintiffs, falsified their books to cover his embezzlement, aná used one of the notes, which was a renewal of the original note, for that purpose, cannot go to the jury to discredit the witness; the issue not being his embezzlement. Slocum v. Knosby, S. C. Iowa, Oct. 27, 1886; 30 N. W. Rep. 18.

other lawyers who may have any professional connection with the corporation law of that State.

That such a compilation cannot fail to be highly useful is abundantly clear from the consideration, that of late years nearly every variety of useful and profitable enterprises is prosecuted by corporations which in fact, are fast absorbing, in one form or another, all the business of the country, except such as from its very nature is incapable of aggregation and co-operation. In every State, therefore, there should be a judicious and carefully prepared system of corporation law, and it is equally important that it should be given to the profession and the public in as complete a form as possible, well arranged and carefully annotated. This has been very well done in the work before us, and we have no doubt that the second edition will be received with increased favor by the profession in Ohio.


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. Query 32. A sells to B, at public sale, a pure bred Hereford cow, and states that she is in calf by a certain famous Hereford bull, owned by A. In order to get a representative from such a noted sire, B bids to $1,000, and gets the cow. The calf comes in due season, and proves to be a male. B uses this calf as a yearling, breeding him to some twenty or thirty cows, among them a number of pure bred cows. The distinctive outward features of the Hereford cattle are a white face, red body and quite prominent horns, and the exception to this rule is very scarce. When the calves come that are sired by this yearling, they prove to be of all colors-red, white, black, yellow, etc., some horned and some hornless, and this out of pure bred Hereford cows, as well as out of ordinary cows. These same cows, to a different Hereford sire, brought calves properly marked. A insists that the pedigree of the young sire is all right, and declines to take any steps in the matter, claiming that he could not be held responsible for the second generation from animals sold by him. B claims, however, that he paid a high price for the cow in the hope of getting a male, and having him band down in his turn the distinctive features of the Hereford cattle, and that the failure to do so is a damage that A should make good. In other words, A sells B a cow in calf for breeding purposes in a Hereford herd. The calf breeds all right, except bis calves lack the color and formation of Herefords, as established in their herd book, and consequently are of but little more value than common stock. Who should stand the loss?


PATTERN CROSS-EXAMINERS — THE CORKSCREW PATTERN. - This great cross-examiner, like a few other great men, proceeds upon a theory. He has observed that the situation of truth, in modern times at least, is best described, not as at the bottom of a well, but rather as in a tightly corked bottle. He regards a witness much as he does a bottle of Appolinaris water; and the object of cross-examination is to get the cork out. The art of doing this is to do it without an explosion and waste of the contents.

Since he discovered this principle he rarely has any difficulty with the process of cross-examining. He appreciates the importance of not shaking the bottle before the cork is drawn. So he disarms the witness entirely. His suave and plausible manner puts the witness at his ease. You would think they were great friends; or that he was ingratiating himself with a great man or an admired woman preparatory to asking some considerable favor.

He believes in a good long course of introductory questions to be continued until he finds the stream of testimony running freely. So he takes whatever comes.

From the reserved or taciturn witness he accepts short answers, and follows graciously with a question just enough different from the one unsatisfactorily anywered to invite a better answer. From the voluble witness he allows long answers, hoping in this way to get at the bottom of it.

But as soon as he has got the first flow fairly going he claps in the cork again with an objection-Wait a minute; one thing at a time; then he rummages with his papers as if in search of something else, or confers with his associate, as if he had no desire to stop his friend the witness, but only wished to prepare to understand him.

From this time on his task consists in alternately uncorking the witness and corking him up again. Each of these meddling processes he accomplishes with the utmost urbanity; and sometimes, almost at the same instant, so that only a single gurgle of testimony may escape between two interrogatories and the witness hardly knows whether he has said anything or not.

In this our friend, the cross-examiner, prides himself, particularly in the art of "getting it out of the fellow;' but it must be admitted that he often gets out just what he doesn't want to. Spectators in the profession are more inclined to admire his tact in “stop. ping it in,” which he generally succeeds in doing.N. Y. Daily Register.



OHIO CORPORATIONS, other than Municipal,

Authorized by the Old and New Constitutions, and Regulated by Statute, with Notes of Decisions, and a Complete Manual of Forms for Organizing and Managing all kinds of Companies and Associations. By A. T. Brewer and G. A. Laubscher of the Cleveland Bar. Second Edition, enlarged.

Cincinnati: Robert Clark & Co., 1886. This is a local book which seems to have been favorably received by the profession in its appropriate habitat, and from the examination which we have given it, deserves well of the lawyers of Ohio, and all

[ocr errors]

The Central Law Journal. credible witnesses, acts and declarations,

facts pertinent to the issue, and, having

failed to make out a ST. LOUIS, DECEMBER 10, 1886.

case in the ordinary manner, striving to extort by the insidious

devices of cross-examination from a prisoner, CURRENT EVENTS.

always presumed to be innocent, either an

actual confession or damaging admissions. PRISONERS AS WITNESSES. - We return to

The fallacy, however, which most gravely

this this subject because we find in a recent num

afflicts the Albany Law Journal on ber of the Albany Law Journal an article


subject is the idea the prisoner beginning thus: “The CENTRAL LAW JOUR

is a witness because he wants to be. It NAL has a long and strong editorial against

is very manifest to us that whether he the practice of allowing prisoners to testify

is made, as Mr. Justice Stephen proin their own behalf, lest they should hurt

poses in his Nineteenth Century article, themselves. This is too sentimental.”

"a compellable witness at very stage of the The gist of our editorial was simply that inquiry,” or whether he is nominally free to logic, justice, and common sense demand that

elect whether he will testify or not, he is in a party who affirms a proposition shall be neither case a free agent. The new system required to prove it; that a State charging a places the average prisoner in this dilemma; person with crime is subject to the same rule,

if he declines to testify he knows that his and should be held to establish its accusation

reticence will operate very severely to his by its own witnesses; and that the prisoner prejudice with the jury, if he does testify shall not be compelled, either directly, or

he knows that very little of his testimony under the disguise of a permission to testify,

which might tend to exculpate him will be to accuse himself or furnish testimony in aid

believed, and that every syllable adverse to of the charges brought against him. These

him, which can be wrung from him by cross

examination will be received as confirmaideas may be “too sentimental,” worthy, in fact, of a place in The Sorrows of Werter. If

tion strong as proof from holy writ.” To

speak of free will in such a connection is so, we are very sorry—we regret extremely to have so shocked the feelings of our prosaic certainly very unreasonble. This result fol

lows from the law of human nature, higher contemporary The Journal seems to consider the supposed

than any statute of any State,more potent than utterances of counsel for the defense, under

the orders of any court. By this law, in one state of the law or under another, as

spite of any thing that legislatures may enact having some bearing on the question. Of

or judges charge, juries will be governed. course, under any state of the law on the The Journal has made a very notable dissubject of evidence, counsel for prisoners covery in moral science. It

says: At all will

say whatever they may think will best events, it is bad logic and bad morals to say serve the interests of their clients, and the that a man, presumed to be innocent, shall inferences which the Journal draws from not be a witness if he desires to be.” We their supposedviews of the matter are un must say that we cannot see where the turpiworthy of serious consideration.

tude comes in. It may be illogical, and it Equally futile is the Journal's parallel may be even absurd, to say, that which the between the exclusion of prisoners from the common law of England has said for a thouswitness stand, and that of circumstantial evi and years, and which the law of most of the dence,created by the prisoner himself, which, States of this union still says. It may be that the Journal supposes to stand on the same there is a fresh revelation of the laws of logic, footing. It says: “But it would be just as which can only be seen under the new juridlogical to censure the use of circumstantial ical light which flashes over the placid waters evidence which the prisoner has created of the Hudson, and that by that revelation against himself.” Surely our contemporary the long accepted views of the sages of the has sufficient perspicacity to see the differ law on this subject have been abrogated. ence between proving, by competent and Still, the question remains, where is the au

Vol. 23—No. 24.

« AnteriorContinuar »