Shiras, J., who delivered the opinion, laid great stress on the right of defendant to be present at every step in the proceedings after indictment found. He said that the record did not show affirmatively that defendant was present at the challenging, and therefore the court would set the judgment aside.


EVIDENCE - DECLARATIONS OF DECEASED SHOWING STATE OF MIND OR INTEN- Held, that in a trial for murder by poisoning, evidence that the deceased at different times within a short time of his death and before his last sickness threatened to commit suicide is incompetent, as hearsay. Siebert v. People, 32 N. E. Rep. 431 (Ill.).

This decision, handed down on Oct. 31, 1892, follows with approval Commonwealth v. Felch, 132 Mass. 22, in ignorance of the fact that that case had been overruled less than a fortnight before. See Commonwealth v. Trefethen, 32 N. E. Rep. 961 (Oct. 20, 1892); and 6 Harvard Law Review, 266.

EVIDENCE HYPOTHETICAL OPINION as to Value of Land. - In an action for damages by an abutting owner against a street railway company for failure to build a railway past plaintiff's land according to agreement, held, that opinion evidence was admissible to show what the value of the plaintiff's land would have been if the contract had been performed. Blagen v. Thompson, 31 Pac. Rep. 647 (Oregon).

This is in accord with the weight of authority; but in New York an opposite rule obtains. See 128 N. Y. 455.

HUSBAND AND WIFE- - PRESUMPTION OF SURVIVORSHIP IN PERSONALTY. — A and his wife each invested $3,000 in a bond and mortgage executed to them jointly. On A's death, held, that no presumption arose that either intended a gift to the other, and consequently that they took as tenants in common and without survivorship. In re Albrecht's Estate, 32 N. E. Rep. (N. Y.).

In purchases of realty, it has been held in New York that there is a contrary, but very slight, presumption; namely, that a tenancy by the entirety is intended. (See 92 N. Y. 152; 133 N. Y. 308.) The present decision seems sensible wherever married women have the same rights in regard to their property as though sole; but the only other case on the point appears to be 35 Mich. 425.


- INCOMING PARTNER-RIGHTS OF PREVIOUS FIRM CREDITORS. -C was admitted to the firm of A, B, & Co. He brought no new capital into the firm, and it was tacitly assumed that the firm assets and liabilities were to continue unchanged. The firm in its new form, being insolvent, made an assignment, giving preferences to a debt incurred before C entered the firm. Held, that the assignment was valid; for, as regards creditors, firm property belongs to the firm as an entity, and the firm creditors' right to priority in payment from this fund is unaffected by a mere change in the personnel of the firm. Peyser v. Myers, 32 N. E. Rep. 699 (N. V.). The court treats the firm as existing as one distinct entity throughout, and holds that it is unnecessary to show either that there was a novation at C's entrance, or that the firm, with C as a member, made a promise for the benefit of creditors of the old firm (Lawrence v. Fox, 20 N. Y. 268). The case is weakened as an authority by the fact that the firm, unknown to itself, was insolvent when C became a member, two years before the assignment. Menagh v. Whitwell, 52 N. Y. 146, is cited with approval.

QUASI CONTRACT - PAYMENT BY MISTAKE - DOCTRINE OF PRICE v. NEAL.· Plaintiff had indorsed certain paper for accommodation in the belief that it was negotiable, and that he was thus secured by certain property for which it had been given. The paper was discounted by the defendant bank, also in the belief that it was negotiable; and the other parties failing to meet it when due, plaintiff paid a part, and refused to pay the rest. The bank sued, and was defeated, on the ground that the paper was not negotiable. Plaintiff then sued the bank for the amount which he had already paid, basing his claim on the ground that he had paid under the mistake that he was secured by the property for which the paper was given. Held, that he could not recover. Alton v. First Nat. Bank of Webster, 32 N. E. Rep. 228 (Mass.).

The decision of this case is clearly right. Its interest comes from the fact that it is a decision in addition to that in the case of Fort Dearborn Nat. Bank v. Carter, Rice, & Co., 152 Mass. 34, with which the Massachusetts court will be confronted when it is called on to pass again on a case like Welch v. Goodwin, 123 Mass. 171, or Merchants' Nat. Bank v. Nat. Eagle Bank, 101 Mass. 281. Holmes, J., in his opinion in the principal case, expressly states that so far as that case is concerned "it does not matter whether the mistake was a mistake of fact or of law." If the point that the mistake is one of law is waived, it is difficult to distinguish the principal case, where the plaintiff has paid in the faith that he is secured by collateral which goes with a note, from the case of the Merchants' Nat Bank v. Nat. Eagle Bank, where plaintiff paid in the be

lief that it had deposits sufficient to cover the draft; or the case of Welch v. Goodwin, where the plaintiff paid in the belief that he was meeting the obligation which was really outstanding against him. The principle is the same as that of Price v. Neal. (See 4 Harvard Law Review, 497.) As between two parties whose equities are equal, the courts will not deprive a defendant of his legal advantage.

QUASI CONTRACT - RECOVERY OF EXCESSIVE FREIGHT. - A railroad company contracted with defendant that it would charge to all other shippers a certain rate double the charge on defendant, and would pay to him one half of this excess when collected. The consideration for the contract was a promise by defendant to build and maintain a system of pipe lines along the road. Plaintiff, in ignorance of this arrangement, paid freight to the company, which paid to defendant the amount agreed on. Held, that the contract between the company and defendant was void, as against public policy, and that plaintiff could recover, in an action for money had and received, the part of the excessive charge which defendant received, for the reason that it was "against good conscience for defendant to retain this money. Brundred v. Rice, 32 N. E. Rep. 169 (Ohio).

The court evidently treated the arrangement between defendant and the company as a wrong to plaintiff, so that there was a constructive trust in favor of the latter on funds which defendant received under the contract. The difficulty with that view is that defendant never in fact received plaintiff's money. That was paid into the general funds of the company, where its identity was lost. Plaintiff could not possibly show that defendant received his money. Without proving this, it is submitted that no res can be shown for a constructive trust.

Another possible theory is submitted. Defendant and the company, having wronged plaintiff, were liable to an action of tort. But plaintiff has waived his right to bring an action of tort, and has elected to sue in money had and received for the proceeds of the tort received by defendant. It is clear that the sum paid to defendant was paid to him as the direct fruit of his tort, although it is not plaintiff's own money. Any objection on the ground of the form of action would seem very technical to-day. It seems no harder to allow "money had and received" in this case than to allow a plaintiff whose property has been converted to waive the tort and sue on a count for goods


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REAL PROPERTYWhere a strip of land was occupied for the statutory period under a mistake as to the true boundary line, and without any intention to claim title to any land not embraced within the original deed, held, that a title by adverse possession was not obtained. King v. Brigham, 31 Pac. Rep. 601 (Oregon).

The doctrine laid down by this case originated in Brown v. Gay, 3 Greenl. 126, which was followed in 33 Ala. 38; 28 Mo. 481; 39 Vt. 579; 34 Iowa, 148; and 35 Kan. 85; but see, contra, 8 Conn. 439; 30 Ohio St. 409; 31 Minn. 81; 73 Me. 105; 69 Ala. 332; 70 Mo. 372; and 22 N. Y. 170. It is submitted that the latter authorities are correct. There was, in fact, a claim of title to the actual land, though there would not have been except for a mistake of fact. It would follow from the principal case that adverse possession can be effective only if it is dishonest.

REAL PROPERTY - APPROPRIATION OF WATER RIGHTS - MEASURE OF DAMAGES. - In an action against the town of Randolph and others, for value of plaintiffs' water right taken by the towns under authority of a statute, held, that no reduction in damages should be allowed for the water which was returned to the stream by percolation, so as to become available for mill purposes. The damages to be assessed are not what the plaintiffs have suffered merely, but all that will arise in the future as well. The amount of water which may be returned in the future cannot be estimated. The defendants have the right to divert all the water, and may do so. Hence, damages are to be assessed on that basis. Allen, Knowlton, and Barber, JJ., dissent, on ground that if damages are assessed on the basis given, the plaintiffs will receive compensation for the loss of water which they actually will continue to use. Proprietors of Mills v. Inhabitants of Randolph, 32 N. E. Rep. 153 (Mass.).

REAL PROPERTY LEASE VOID UNDER STATUTE OF FRAUDS-TENANCY FROM YEAR TO YEAR. - The Minnesota statute requires that all leases of one year or more, to begin in futuro, shall be in writing. Defendant agreed to occupy plaintiff's building for at least one year. He remained more than two years, paying rent monthly. After a month's notice to quit, the landlord brought action for possession. The tenant set up the parol lease in order to show that he was entitled to notice as under a holding from year to year. Held, that "at no time can a parol demise void under the Statute of Frauds be resorted to for purpose of ascertaining the duration of the term." Johnson v. Alberton, 53 N. W. Rep. 642 (Minn.).

It is submitted that though the agreement for a lease for years be not admissible against the lessor to show the number of years for which lessee is to hold, it is admissible to show whether or not there was a payment of rent with reference to a yearly holding; i.e., whether a tenancy from year to year was created. Compare Doe d. Rigge v. Bell, 5 T. R. 471, and note to that case in 2 Smith's Lead. Cas.

The language of the court is inconsistent with Doe d. Tilt v. Stratton, 4 Bing. 446, where defendant entered under an agreement for a lease for seven years, and it was held that at the end of the seven years the contract itself gave defendant sufficient notice to quit.

REAL PROPERTY WILLS ADVANCEMENT. A father gave property by deed and will to each of his children except the two plaintiffs, reciting in both deed and will that this was all he intended these children to take from his estate. As to the rest of his property, he died intestate. The defendants claimed that there was an implied devise to them of the residue. Held, that notwithstanding the words of exclusion, the undisposed portion of the estate should be divided among all the children, the gifts previously made being treated merely as advancements. Phillips v. Phillips, 20 S. W. Rep. 541 (Ky.).


A testator devised a freehold estate to his son for life, and after his death to all children of his son who should reach twenty-one, in equal shares as tenants in common. By a subsequent clause, he directed that if the son's estate should be taken in execution for debt, it should cease, and the property should vest in the persons who would under the previous limitations be next entitled to it. The son's estate was taken in execution, and the only child who had reached twenty-one brought a bill, praying a declaration that she was absolutely entitled to the whole estate in fee. Held, that although the first limitation to the children, coming after the end of the life estate, must be a remainder, so that, being a contingent remainder, only those children could take who by reason of having reached twenty-one had vested interests at their father's death, yet the second limitation, since it cut short the father's life estate, was an executory devise, and the estate which vested in the one child who had reached twenty-one would open and let in all the children who attained twenty-one at any time hereafter. Blackman v. Fysh, [1892] 3 Ch. 209 (Eng.).


STATUTE CONSTRUCTION - CORRELATIVE OBLIGATIONS WHICH ARE NOT CON- By Acts passed in 1867 and 1881, the Richmond Gas Company was required to supply gas to the public lamps in the parish of Richmond, and the charge for sup plying such gas was fixed at a certain annual sum per lamp; the lamps to be lighted from sunset to sunrise, and the burners used to consume not less than a certain amount per hour. During the months of December, 1890, and January, 1891, in consequence of exceptional frost, the pipes became blocked with ice, and the supply of gas to the public lamps was insufficient. Held, that the relation between the parties was not a contractual relation, but that an absolute statutory obligation was imposed on each, and that the corporation of Richmond were bound to pay the fixed annual sum in respect of such lamps, notwithstanding the insufficiency of the supply of gas. In re Richmond Gas Co. and Mayor, etc., of Borough of Richmond, [1893] Q. B. 56 (Eng.).


TORT NUISANCE-DAMAGE TO REALTY.-Held, that there is a distinction between injuries which affect the air merely by way of noises and disagreeable gases, resulting in personal discomfort, and those which injuriously affect the land itself, or structures upon it. As to the former, each person living in society must submit to a degree of discomfort, depending in some measure upon the circumstances of his environment. As to the latter, the owner or occupant of land is entitled to enjoy it free from any direct injury which will appreciably affect its value. Hennessey v. Čarmony, 25 Atl. Rep. 374 (N. J.).

The Supreme Court of New Jersey adopt, in this case, the distinction laid down by Lord Westbury in Smelting Co. v. Tipping, II H. L. Cas. 642 (s. C. II Jurist N. S. 785).

TRUSTS RESULTING TRUST BECAUSE OF FIDUCIARY'S FRAUD.-A and B agreed to buy certain land in common, taking the title in the name of B's wife as trustee, and A gave B two negotiable bonds with which to pay for A's share. The vendor refused to accept the bonds; B then borrowed the necessary money from his wife, and paid cash for the land. Afterwards B sold the bonds in his wife's name, and turned over to her the money thus realized. Held, that the wife was trustee of the land for A; for although neither the bonds themselves nor the money netted by their sale was used in payment, still, in effect, the money paid was the product of the bonds, because the wife's


advance was made on the bonds as security, with the privilege of selling them for reimbursement. Hill v. Pollard, 32 N. E. Rep. 564 (Ill.).

It is submitted that the court could have made a shorter cut to its decision by say. ing simply that a fiduciary must not compete with his principal.


THE LAWS OF ELECTRIC WIRES IN STREETS AND HIGHWAYS. By Edward Quinton Keasbey, of the New Jersey Bar. Chicago: Callaghan & Co. 1892.

"IT is always interesting to observe the manner in which the courts deal with new inventions and apply old principles of law to new conditions," writes Mr. Keasbey (who graduated from Harvard Law School in 1871), in the preface to this really valuable book. Some idea of the rapid growth of the law on this subject may be gathered from the fact that Scott and Jarnagin, in their work on Telegraphs, written in 1868, refer to the rights of abutting owners against companies who erect poles and stretch wires along the roads and streets as one of speculation rather than practical interest, and cite no cases; and as late as 1883 there had been few, if any, decisions upon the question. The chapters treating of the conflict of authority upon the rights of abutting owners are the most useful and interesting of Mr. Keasbey's book. On the one hand, the Supreme Courts of Missouri, Massachusetts, and Louisiana have held that the electric telegraph wire is not a new burden upon the land adjoining the highway, on the ground that the telegraph is merely a new means of using the old easement of communication, an analogy which seems very artificial. On the other hand, the Supreme Courts of New York, New Jersey, Minnesota, Illinois, Ohio, Virginia, Maryland, and Mississippi, and such writers as Lewis and Dillon, maintain that the telegraph poles and wires are an additional burden, for they form no part of the public highway, and, as a means of transmitting intelligence, are so wholly different from the post-boy and stage-coach that they could not have been contemplated by the landowner at the time of dedication or condemnation. Mr. Keasbey says it is not yet safe to predict which of these two views will finally prevail. The old distinction with respect to the title to the land has been shown to be of no value; and future judicial opinion, following the rule laid down by the New York Court of Appeals in the Elevated Railroad Cases, will be based, it is to be hoped, on the question whether the privileges of the abutting owner are affected, and the further question, What is the scope of the uses and purposes of a public street?

Whether the electric street railway will occupy the legal position of the horse and cable railway is still doubtful; but the most recent decisions would lead one to answer in the affirmative. Mr. Keasbey thinks that it might tend to a reconciliation of the cases, and the adoption of a uniform rule, if the question of new burden were, as Chief Justice Campbell, of Michigan, suggests, left on one side, and attention were directed to the practical question mentioned above, whether the rights and privileges of abutting owners were injured by the operations of the railway.

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Any one interested in the application of common law principles to what are perhaps the most wonderful of modern conditions, will find in Mr. Keasbey's book a clear and unprejudiced exposition of the conflicting decisions upon the subject, and many valuable suggestions as to the future trend of the law.

G. T. H.

SOHM'S INSTITUTES OF ROMAN LAW. Translated by James C. Ledlie, of the Middle Temple, and of Lincoln College, Oxford; with an Introductory Essay by Dr. Erwin Grueber, University Reader in Roman Law, Oxford. One volume, pages xxxv, 521. Oxford: Clarendon


It is seldom that a work so admirable comes to hand, scholarly, scientific, and original. The name of the author, Prof. Rudolph Sohm, of Leipsic, a light in Germany to-day, and recognized as an authority on Roman law, insures its character and value. The style, excellent, if a trifle brilliant, is reproduced in the translation. Dr. Grueber's valuable essay, giving a history of the study of Roman law in its various stages both on the Continent and in England, and of the treatment and evolution of the Institutes, is a separate work rather than an introduction or aid to the main book.

To those familiar with the German works it is scarcely necessary to say that, based on the Institutes of Justinian, this is an exposition and commentary of the Roman law in its final rounded and perfected state, moulded by the lex gentium. Professor Sohm gives much space to the growth and change of principles and propositions, and, with wise suspense, holds their final statement until the later Empire's refined body of equitable doctrines has given its final touch.

There is a decided departure, not only from the original arrangement of the Institutes, but also from their present accepted arrangement. The order introduced by A. Heise, and commonly followed to-day, is : — 1. A general introductory part.

2. The Law of Things, comprehending ownership and rights over the property of others.

3. The Law of Obligation, including Contracts and Delicts.

4. The Law of the Family, regulating the relations of husband and wife, of parent and child, of guardian and ward.

5. The Law of Inheritance, Testamentary and Intestate Succession. Professor Sohm, asserting that the person is to be taken into account in his capacity of holding property only, i. e., as a subject or bearer of rights of property, and that the family law, on principle, has nothing to do with the family relations themselves, classifies as follows:

1. The Law of Persons.

2. The Law of Property.

3. The Law of Family and Inheritance as the law affecting property as a whole.

Whether this classification is in harmony with the views of the Roman jurists, I shall not attempt to say. Dr. Grueber doubts.

J. C.

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