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and there is no context to explain it otherwise, then the court will not depart from the strict sense of the word "heir"—a remark which does not apply to the present case, the decision of Turner, L. J., in this case having determined that in the will before me the word "heirs" is not used to describe a legatee, and is not to be taken in its strict sense. The decision in Mounsey v. Blamire, 4 Russ. 384, is inapplicable to the present case, but it is clear from what I have read that Sir John Leach's view was, that in a case like the present, the parties entitled would be "such persons as would legally succeed to personal property," claiming ab intestato. So in Gittings v. M'Dermott, 2 M. & K. 60, where there was a residuary bequest to each of the testator's sisters Mary and Sarah; and upon their deaths respectively to their "heirs," Mary and Sarah having died during the testator's life, Sir John Leach, M. R., was of the opinion that the residuary gift did not lapse upon their death, but that it went to those who would have taken it by succession had the person to whom the life interest was given survived the testator. 2 Myl. & K. 73. They again would be the widow and other persons entitled under the statutes of distribution, and Lord Brougham expressed himself to the like effect in the same case when it came before him on appeal; speaking of "the heir of the personalty" (id. 76), as the person entitled; and again in a subsequent page he adds this: "It may be further observed that giving to A., and on his death to his heirs, refers to two things which must take place without any such provision- the death of A., and his heirs taking after him, that is the property going to those to whom the law gives it; so that it is only saying, let those take it who may be entitled to take." Id. 81. And so again in Withy v. Mangles, 10 Cl. & F. 253, Lord Cottenham, C., speaks of "heirship according to the nature of the property." He says: "A testator may indeed so express himself as to intimate an intention that the rule of the statute should prevail, as in Stamp v. Cooke. So in Lowndes v. Stone, 4 Ves. 649, a gift of the residue of the estate and effects to next of kin or heir at law' was held to include nephews with an uncle, the words implying heirship according to the nature of the property." I read this passage as showing that not only the judges whose opinion he cites, but Wood, V. C., himself, was of opinion that you might, without any great impropriety, speak of "the heirs" of personal estate as well as of "the heirs" of real estate. There is a case of White v. Briggs, 2 Ph. 583, in which the word " "family was used, which is no doubt a word of large and flexible meaning. There the testator gave to his wife all his property for her life, both real and personal property, and he directed that at her death his nephew was "to be considered heir to all my property not otherwise disposed of;" and the testator further directed that "whatever portion of my property may hereafter be possessed by him, shall be secured by my executor for the benefit of his family." The will contained these further gifts: "After the decease of my wife, my real property I leave to my nephew before mentioned, his heirs and family, **** my nephew will further have the benefit of my personal property variously situated, and his heirs and family after him;" and Lord Cottenham having determined that in one part of the will the word "family" meant the "heir at law" as regarded real estate, held that in another part of the will the same word meant the "next of kin" in relation to personal estate. I think he would have had no difficulty in holding, that in a gift of both real and personal estate, the word "heir" might have one meaning as to the real estate, and another meaning as to the personal estate — that it might mean the heir at law in relation to the real estate, and the next of kin in relation to the personal estate. I next come to

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De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, and I think it has no bearing on the present case, and cannot govern it. Lord St. Leonards came to the conclusionand no one could have come to any other conclusionthat the person who was to take the real estate should also take the personal estate, and that when the testator had shown an intention that the real estate and the personal estate should go together there was no rule of law that they must be separated. I now come to Smith v. Butcher, 10 Ch. Div. 113, and Wingfield v. Wingfield, 39 L. T. Rep. (N. S.) 227. To my mind Wingfield v. Wingfield is hardly distinguishable from the present case, and there Hall, V. C., came to the conclusion that the word "heirs" in the will then before him had two meanings, namely, heir at law as to real estate, and next of kin as to personal estate. Smith v. Butcher, which was decided by Sir George Jessel, M. R., is supposed in a great measure to decide the present case. There the will was this: a bequest "to the children of A. during their lives, and on the decease of either of them, his or her share of the principal to go to his or her lawful heirs." The learned judge there held that the word "heir," or the word “heirs," had a technical meaning, and that there was nothing in the will to show that the technical meaning was not the true meaning of the testator. I do not think that that case does decide the case before me, but assuming that the decision was perfectly correct, I think it is still open to me to decide as I think I ought to decide, the present case in a different way. In Smith v. Butcher there was a gift to tenants for life, with remainder over to their lawful "heirs." It may well be that in such a case you ought to read the word "heir" in its strictest sense, and to say that the heir takes as persona designata. But in the present case the gift is in the first instance to the testator's wife for her life, and after her death to be equally divided among all his children by her, or such of them as might be then surviving, or their heirs. The heirs are not to take by way of remainder, but in a certain sense by way of substitution. It is an independent gift to them; they take in the place and instead of the children who have died before the tenant for life. I think that enables me to give to the word "heirs " a different meaning from that which the master of the rolls gave to it in Smith v. Butcher. I think it shows an intention on the part of the testator that the "heirs" are to take in exactly the same way as if the deceased children had died intestate; that is to say, the heir at law is to take the real estate, and the "heirs" of personalty, that is the next of kin, are to take the personal estate. I think that is the right conclusion in the present case, and I do so decide. I disclaim any intention of guessing as to the testator's meaning, and I decide the case entirely upon the authorities by which I believe it is governed.

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department, and water was being thrown under direction of the mayor upon buildings in the vicinity. The plaintiff's evidence tended to show that he was travelling with a horse and wagon on Warren street, in the exercise of due care, and when within a short distance from the hydrant, the man handling the nozzle of the hose raised it in such way that the water in its descent fell suddenly in front of and partly upon his horse, whereby the horse was frightened, and wheeled quickly around, throwing the plaintiff out, and causing the injury complained of. The street was otherwise safe and sufficient. The defendants moved for a nonsuit, which was denied, and the defendants excepted.

The defendants requested the court to instruct the jury that the hydrant, and hose and pipe connected with it, constituted no obstruction of the highway; that the water thrown by them, falling in the highway, frightening the horse and doing damage, was not a statutory obstruction; that the obstruction meant by the statute is one caused by inert, not moving matter; that the careless use of a hydrant, hose, and pipe does not constitute a statutory obstruction of a highway.

George and Mugridge, for plaintiff.

Sanborn & Clark, for defendant.

DOE, C. J. The cause of action stated in the declaration is damage happening to the plaintiff, a traveller in a highway, by reason of a defect of the highway, which rendered it unsuitable for the travel thereon.

wich, id. 225; Smith v. Rochester, 76 N. Y. 506; Howard v. San Francisco, 51 Cal. 52; Greenwood v. Louisville, 13 Bush, 226; Hayes v. Oshkosh, 33 Wis. 314; Fisher v. Boston, 104 Mass. 87; Neuert v. Boston, 120 id. 338; Cushing v. Bedford, 125 id. 526; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, id. 172; Barney v. Lowell, 98 Mass. 570; Hill V. Boston, 122 id. 344: Maxmilian v. Mayor of New York, 62 N. Y. 160; Elliott v. Philadelphia, 75 Penn. St. 347; Pollock v. Louisville, 13 Bush, 221; 2 Dillon Mun. Corp., § 976; Cooley Torts, 621. With these authorities, Aldrich v. Tripp, 11 R. I. 141, is not in conflict. The decision in that case was put on the ground that the injury complained of resulted from the careless management of a hydrant by the water commissioners, and not by the fire department. Verdict set aside.




G. married a woman known by him at the time to be with child begotten by S. The child was afterward born. Held, that G. by his act adopted the child and was liable for its support, and that S. was not liable under a bastardy proceeding. The case is distinguished from those involving questions of inheritance.

The wrong thus complained of is not the act of fright- PROSECUTION for bastardy to compel defendant

ening the plaintiff's horse in violation of the plaintiff's common-law right, and the defendants' common-law duty, but a violation of the statutory, highway right of a traveller, by a non-performance of the defendants' statutory duty of keeping the highway "in good repair, suitable for the travel thereon." Gen. Laws, ch. 74, §1; ch. 75, § 1. The wrong which the plaintiff's evidence tended to prove was a movement of the hose in the hands of a fireman, throwing a stream of water suddenly in front of and upon the plaintiff's horse. A stream of water, flowing in a street from a hydrant or other source, may in time become a defect of the


But the act of frightening a traveller's horse by coasting in the street, or the act of sliding against a traveller, or driving a locomotive against his carriage, is not a defect of the street, within the meaning of the highway law. Ray v. Manchester, 46 N. H. 59; Shepherd v. Chelsea, 4 Allen, 113; Vinal v. Dorchester, 7 Gray, 421. In this case, if the act of the fireman was the act of the city, evidence that the act of the city frightened the plaintiff's horse would not sustain the declaration for non-performance of highway duty. If the defendants were liable, as a master for the negligent act of a servant in running against the plaintiff on the sidewalk, the declaration should be for the collision and not for a defective highway. The motion for a nonsuit should have been granted. Hand v. Brookline, 126 Mass. 324; Barber v. Roxbury, 11 Allen, 318; Hardy v. Keene, 52 N. H. 370.

Upon a declaration for the act of frightening the plaintiff's horse, another question would arise. The plaintiff's evidence tended to show that the accident was caused by using the water for a purpose of the fire department, the purpose of testing the power of the hydrant to protect its neighborhood against fire. The experiment was the proper work of the fire department, like the trial of a steam fire engine, hose cart, or other fire-extinguishing apparatus. Such an experiment might not be judiciously postponed till the neighborhood was on fire. And the authorities agree that a town is not liable for damage done by the fire department. Hafford v. New Bedford, 16 Gray, 297; Jewett v. New Haven, 38 Conn. 368; Torbush v. Nor

to support illegitimate child. The facts appear in the opinion. The State appealed.

H. B. Hendershott, Samuel Jones, and Smith McPherson, attorney-general, for State.

Stiles & Beaman, for defendant.

BECK, J. The undisputed facts, as disclosed by the evidence for the State, established the following facts: (1) The child was begotten by the defendant, and was born on the 13th day of August, 1882; (2) prior to its birth, on the 1st day of June, 1882, the mother, the prosecutrix, married another man, named Getz; (3) at and before the marriage Getz was informed by the prosecutrix that she was enceinte. Her condition was apparent from her appearance. Upon these facts the District Court held that plaintiff could not recover, and directed the jury to return a verdict for defend


2. Under chapter 56, title 25, of the code, a father may be charged with the maintenance of his illegitimate child. The proceeding thereunder is entitled as an action in the name of the State against the alleged father, and may be prosecuted upon the complaint of the mother. It is a civil action of a summary nature (Holmes v. State, 2 G. Greene, 501; Black Hawk Co. v. Cotter, 32 Iowa, 125) and is intended to secure the maintenance of the bastard, to the end that in no event shall the public become chargeable therewith. Of course, if one stands in the relation to the child which will cause the law to esteem him liable as its father for its support, being in loco parentis, the proceeding cannot be prosecuted against another who is in fact the natural father. The one whose relations are such that he stands in loco parentis, the law esteems the father, and will not, for various reasons, inquire by whom the child was begotten.

One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child receiving its support from the mother, must of necessity

become one of her family, which is equally the family of the husband. The child then is received into the family of the husband, who stands as to it in loco parentis. This being the law, it entered into the marriage contract between the mother and the husband. When this relation is established the law raises a conclusive presumption that the husband is the father of his wife's illegitimate child. We must not be understood to hold that this rule prevails in cases involving questions of heirship and inheritance. In these cases the rights of others besides the husband and bastard arise. In this case the rights and liabilities of the husband and child are alone involved; they rest upon the relations which impose upon the husband the duty of maintaining the child. Our conclusion is supported by public policy, and considerations which make for the peace and well-being of families. A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation and bring scandal upon his wife and her child by establishing its bastardy after he has condoned the wife's offense by taking her in marriage.

3. The conclusion we reach in this case is supported by State v. Romaine, 58 Iowa, 46, and cases therein cited.

4. Many of the cases cited by defendant's counselWright v. Hicks, 15 Ga. 160; Cross v. Cross, 3 Paige, Ch. 139; Goodright v. Saul, 4 Tenn. 356; Lomex v. Holmden, 2 Strange, 940; Hall v. Com., Hardin (Ky.), 486; State v. Pettaway, 3 Hawks, 623; Com. v. Wentz, 1 Ashm. 269; King v. Inhab. of Kea, 11 East, 132; King v. Inhab. of Maidstone, 12 id. 550; State v. Broadway, 69 N. C. 411; Stegall v. Stegall's Admr., 2 Brock. C. C. 256-involve questions of heirship or inheritance, and in this respect, differ from the case before us. The distinctions between those cases and this, based upon this ground, are obvious. We have above pointed them out. Other cases cited by counsel are also distinguished by these facts from this case.

It is our conclusion that the judgment of the District Court ought to be affirmed.

Judgment affirmed.

WISCONSIN SUPREME COURT ABSTRACT. ASSAULT -SPECTATOR NOT LIABLE FOR DAMAGES FOR. A mere spectator is not liable for damages for an assault and battery. The general rule is, that all concerned in an assault and battery are principals, and that one who incites another to commit such an offense is guilty and may be prosecuted as principal, although he did not otherwise participate in the wrongful act. In Brown v. Perkins, 1 Allen, 89, Bigelow, C. J., states the rule upon this subject as follows: "Any person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same." 3 Greenl. Ev., § 41; Whart. Crim. Law, § 616; Sikes v. Johnson, 16 Mass. 389; Frantz v. Lenhart, 56 Penn. St. 365. But as the learned judge in Brown v. Perkins remarks, it is to be borne in mind that mere presence at the commission of a trespass or wrongful act does dot render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful attempt, and does not act to countenance or approve those who are actors, he is not

to be held liable on the ground that he happened to be a looker-on and did not use active endeavors to prevent the commission of the unlawful acts. State v. Maloy, 44 Iowa, 104; State v. Jones, 83 N. C. 605; Lamb v. People, 96 Ill. 43. But any encouragement or aid given the principal actor, any concert of action in the execution of the unlawful design, will amount to a guilty participation in the trespass. Hilmes v. Stroebel. Opinion by Cole, C. J. [Decided Dec. 11, 1883.]

PARTNERSHIP-LIMITATION OF AUTHORITY OF PARTNER AS TO GUARANTY.—An instrument signed by a member of a manufacturing firm read thus: "Allyn A. Avery, Esq.--Dear Sir: If you rent your house to Mr. I. J. Hibbard, will be responsible for the rent of the same as long as said Hibbard remains in our employ. Respectfully, J. S. Rowell & Co." Held, that the instrument did not bind the firm, because it did not in terms do so, and because if the partner had sought to bind his firm to this guaranty the partnership would not be bound thereby, as the giving of it was not necessary fer the carrying on the business of the firm in the ordinary way. 1 Coll. Partn. 666. It was no part of the ordinary business of such a firm to guarantee rents, even for their employees. The contract of guaranty must be within the scope of the partnership business. Baylies Guar. 49; Pars. Partn., § 216; Hope v. Cust, East, 53; Crawford v. Stirling, 4 id. 209; Brettel v. Williams, 4 Exch. 623. This limitation of the power of one partner to bind the firm to the ordinary partnership business has been frequently recognized by this court. Freeman v. Carpenter, 17 Wis. 126. Avery v. Rowell. Opinion by Orton, J.

[Decided Dec. 11, 1883.]

REPLEVIN-WILL NOT LIE TO RECOVER PROPERTY SEIZED FOR TAXES.-Under the statutes relating to taxation, it has frequently been held that replevin will not lie to recover property held by an officer under a tax-warrant regular upon its face, issued by the proper authorities against the plaintiff in replevin. Troy, etc., R. Co. v. Kane, 72 N. Y. 614, affirming S. C., 9 Hun, 506; Hudler v. Golden, 36 N. Y. 446; Cheg. aray v. Jenkins, 5 id. 376; O'Reilley v. Good, 42 Barb. 521; People v. Albany, 7 Wend. 485; Stiles v Griffith, 3 Yeates, 82; Bilbo v. Henderson, 21 Iowa, 56; Grindrod v. Lauzon, 47 Mich. 584; Pott v. Aldwine, 7 Watts, 173; Niagara Elev. Co. v. McNamara, 2 Hun, 416. Some courts have gone so far as to hold that the action will not lie against the officer even in favor of the true owner of the property, although it was seized by the officer on a tax-warrant against another. Vacht v. Reed, 70 Ill. 491. But the better opinion seems to be that the statute prohibiting such action should be limited to cases where the property seized is that of the person, or one in privity with the person, against whom the tax was assessed. Travers v. Inslee, 19 Mich. 98; Daniels v. Nelson, 41 Vt. 161; Stockwell v. Veitch, 15 Abb. Pr. 412; Trask v. Maguire, 2 Dill. 182. And it has been held that the statute does not apply where there is no jurisdiction to levy the tax. McCoy v. Anderson, 47 Mich. 502; Le Roy v. East Saginaw R. Co., 18 id. 234; Buell v. Ball, 20 Iowa, 282. Power v. Kindschi. Opinion by Cassoday, J. [Decided Nov. 20, 1883.]

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there is a person in being against whom an action can be brought and the right of action enforced. Held, therefore, that the death of the debtor operates to suspend the statute of limitations until an administrator is appointed. Toby v. Allen, 3 Kans. 399; Hanson v. Towle, 19 id. 273. See also Whitney v. State, 52 Miss. 732; Briggs v. Thomas, 32 Vt. 170; Etter v. Fiun, 12 Ark. 632. Nelson v. Herkel. Opinion by Horton, C. J. MALICIOUS PROSECUTION — DEFENSE - ESTOPPELQUESTION OF LAW.-(1) Where a party files a complaint upon which he causes the arrest of another for an alleged crime, it is no defense to an action for malicious prosecution, that the complaint was technically defective; so long as it was treated by the justice and officer as sufficient, and the defendant was in fact arrested thereon, the party filing it is estopped from questioning its sufficiency. Wicks v. Fentham, 4 Term Rep. 248; Pippet v. Hearn, 1 D. & R. 271; 2 Addison on Torts, § 881. (2) In an action for malicious prosecution, the question of probable cause is one of law for the court. If upon the undisputed facts, there was no probable cause, it is the duty of the court to so find, and so instruct the jury. Besson v. Southard, 10 N. Y. 240; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Penn. St. 234; Hill v. Palm, 38 Mo. 13; Wells v. Parsons, 3 Har. (Del.) 505. (3) Where, if all that is believed or suspected of the defendant be true, he has committed no crime, there is no probable cause to believe him guilty. (4) A party cannot commit the crime of embezzlement in respect to money which is legally and absolutely his own, and this notwithstanding he may be at the time in debt, and does not intend to pay his creditors. Parli v. Reed. Opinion by Brewer, J.


STATUTE OF FRAUDS—AGREEMENT NOT TO BE PERFORMED IN A YEAR. An agreement to pay $650 as soon as it can be earned off from a tract of eighty acres over and above the amount necessary support the family of the promisor, cannot be pronounced as matter of law reasonably incapable of full performance within a year, when the number in the promisor's family is not shown, nor the amount of improvements and conveniences for farming on the premises, nor the quality of the soil, nor the condition of the farm other than that at the time about forty acres were broken, nor the distance from market, nor any other fact from which the probable earnings from such a farm can be determined. Larimer v. Kelly, 10 Kans. 298; Stout v. Ennis, 28 id. 706. See also McClellan v. Sandford, 26 Wis. 609; Jilson v. Gilbert, id. 637. Sutphen v. Sutphen. Opinion by Brewer, J.


SUPREME COURT ABSTRACT.* CARRIER-LOSS OF MONEY BY-RIGHT OF CONSIGNOR TO SUE. The plaintiff, having sold land as agent of the owner and received the purchase-money, delivered the latter to an express company for transportation to the owner. It was lost in transit. Held, that the plaintiff could maintain an action for its recovery. He was the "trustee of an express trust," within the meaning of section 3463, Revised Statutes, 1879. Cothay v. Fennell, 10 B. & C. 671; S. C., 21 E. C. L. 146; Story on Agency, $ 160, 270; Ferris v. Shaw, 72 Mo. 446; Blanchard v. Page, 8 Gray, 261; 1 Perry on Trusts, § 86; Webb v. Morgan, 14 Mo. 429; Beattie v. Lett, 28 id. 596; Simmons v. Belt, 35 id. 461; Nicolay v. Fritschle, 40 id. 67; Harney v. Dutcher, 15 id. 89; Rogers v. Gosnell, 51 id. 466; Bliss Code Plead., §§ 45, 46. Suider v. Adams Express Co. Opinion by Sherwood, J.

MORTGAGE PAYMENT OF TAXES BY MORTGAGEE.— If the mortgagor fail to pay the taxes on the mortgaged *To appear in 77 Missouri Reports.

premises, the mortgagee may pay them, and claim the benefit of the lien of the mortgage as security for the amount. But his claim must be enforced as a part of the mortgage debt, and not by an independent action against the mortagor, as for money paid to his use, or under claim of subrogation to the lien of the State or municipality. Sheldon on Subrogation, § 9; Jones on Mortg., §§ 1050, 1184; Johnson v. Payne, 11 Neb. 269; Whittaker v. Wright, 35 Ark. 511; Barthell v. Syverson, 54 Iowa, 160; Napton v. Leaton, 71 Mo. 369. Horrigan v. Wellmuth. Opinion by Hough, C. J.

MUNICIPAL BONDS--CONFLICT OF DECISION BETWEEN STATE AND FEDERAL COURTS.-The fact that county bonds held void by the courts of this State are held valid by the courts of the United States, and therefore when transferred to a non-resident holder may be enforced against the county, will not authorize the courts of this State to require a resident holder of such bonds to deliver them up to be cancelled. "In the case of State Stamper v. Holladay, 72 Mo. 499, this court held that bonds thus circumstanced are not nullities in the hands of the holders thereof, and as the holders are declared by the United States courts to have property therein, it is beyond the province of this court to undertake to destroy in the hands of citizens of the United States that which the courts of the United States declare to be property. This court has exhausted its jurisdiction in declining to enforce such bonds as valid obligations." Dallas County v. Merrill. Opinion Per Curiam.

DEDICATION-OF STREET TO PUBLIC USE BY ACTS IN PAIS-ACCEPTANCE ESTOPPEL.-In a case where, without judicial proceeding, or compensation, or solemn form of conveyance, it is sought to establish in pais a divestiture of the citizen's landed property in favor of the public, the proof ought to be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner's intent and consent; and the conduct and acts relied on to establish the intent should be inconsistent and irreconcilable with any construction except such consent; nor must there be declarations and acts by the owner inconsistent with the dedication. Tested by these rules, the evidence in this case fails to show a dedication. Brinck v. Collier, 56 Mo. 165; Irwin v. Dixon, 9 How. 31. To constitute a dedication of property to public use there must be an acceptance by the public. This may be evidenced by user for a long period, or by its official recognition by the constituted authorities. The user should be such as to indicate that the enjoyment by the public is exclusive and not subordinate or incidental to the convenience of the owner. It is not always essential to the creation of an estoppel that the person should be a party to the record. One who instigates and promotes litigation for his own benefit by employing counsel or binding himself for the costs and damages, will be bound by the litigation or procedure as much as the party to the record. Thus, where a city, at the request of certain citizens, instituted legal proceedings to condemn land for a street, the citizens agreeing to pay all damages that might be assessed, and afterward the city declined to pay the damages that were assessed, and in lieu thereof passed an ordinance declaring that the land sought to be condemned "be abandoned by the city." Held, that the citizens who instituted the proceedings were concluded from asserting a prior dedication of the same land for public use as a street. Wright v. Town of Butler, 64 Mo. 165; Strong v. Phoenix Ins. Co., 62 id. 295; Stoddard v. Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 18. Landis v. Hamilton. Opinion by Phillips, Com.



DECEMBER 28, 1884.*


Where a party in a written contract for sufficient consideration promises to pay another a certain sum of money, when he shall be able to convey by a good and sufficient deed premises of which he then had no title, no action can be maintained upon the promise until the other party has first obtained a title and tendered a good and sufficient deed thereof. This is a condition precedent, and to avail it must be performed, when no time is named, within a reasonable time. In such a case a reasonable time is such time as is necessary conveniently to do what the contract requires should be done, and a delay of one year not satisfactorily explained is an unreasonable time. Saunders v. Curtis. Opinion by Danforth, J.

CORPORATION-AGREEMENT BY STOCKHOLDERS TO LIQUIDATE DEBT. -The stockholders of a corporation at a time when the corporate indebtedness was something over four thousand dollars and the assets less than two thousand dollars, subscribed an agreement promising to pay the treasurer "the sums placed against our names, respectively, for the purpose of liquidating the debt against said association," and all but one paid their subscriptions and the business of the corporation was continued for three years. Held, that an action of assumpsit could be maintained on the agreement against the delinquent subscriber in the name of the treasurer for the benefit of those who were creditors at the time of the subscription. Trustees Fryeburg Parsonage Fund v. Ripley, 6 Me. 442; Amherst Academy v. Cowls, 6 Pick. 427; Collier v. Baptist Education Society, 8 B. Monroe, 68; Troy Academy v. Nelson, 24 Vt 189; Church v. Kendall, 16 Am. Law Reg. 546. Haskell v. Oake. Opinion by Barrows, J.

EMINENT DOMAIN-RIGHT OF LESSEE TO SHARE IN COMPENSATION RECEIVED BY LANDLORD.-The defendants were owners of land in Belfast. Plaintiff was their lessee of a portion thereof under a lease for a term of years. In widening a street, the city took a portion of the land including a part of that leased to plaintiff. The entire damages for the taking were accorded to and collected by defendants, no claim being made that a portion of the damages belonged to the lessee. Held, that the plaintiff may recover of the defendants, his share of the damages (after deducting his pro rata share of the expenses incurred by the defendants in prosecuting the claim for damages) in an action for money had and received. Ellis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. 198; Patterson v. Boston, 20 id. 165; Commonwealth v. Great Barrington, 6 Mass. 492; Matter of Eleventh Avenue. 81 N. Y. 436, Brown v. Co. Com. 12 Metc. 209. Harris v.Howes. Opinion by Peters, J.

WILL-CONSTRUCTION OF-GIFT OF USE-WHEN CONVEYS ABSOLUTE ESTATE AND WHEN NOT.-A devise of property personal and real, to the wife of the testator to hold the same so long as she shall remain his widow, followed by a devise over of the same property to a son and one of the daughters of the testator in unequal proportions upon the termination of the estate of the wife therein, gives to the widow an estate for life in such property determinable upon her marriage; and she can convey nothing more by her deed of the realty. A life-estate in personal property the ordinary use of which is its destruction, is of course equivalent to an absolute gift when the same has been consumed, and the gift of such life-estate in goods and chattels which *Appearing in 75 Maine Reports.

are liable to be worn out and deteriorated by use, amounts to the same thing if the life-estate lasts long enough. Not so as to moneys, and bank or other stocks that may be expected to yield an income without waste of the principal. But the rule in this State is that the legatee for life of personal property is entitled to the possession, management and control of it after the settlement of the estate, the court having power to require security in proper cases for the preservation of the principal, when it is of such a character that the principal ought to be preserved. Starr v. McEwen, 69 Me. 335; Sampson v. Randall, 72 id. 109; Warren v. Webb, 68 id. 133; Fox v. Rumery, id. 121; Stuart v. Walker, 72 id. 145; Green v. Hewitt, 97 Ill. 113; Cooper v. Pogue, 92 Penn. St. 254; Bradly v. Westcott, 13 Vesey, Jr. 445; Giles v. Little, 104 U. S. 291; Parsons v. Winslow, 6 Mass. 169; Dumey v. Schoeffler, 24 Mo. 170. Mansfield v. Mansfield. Opinion by Barrows, J.



DAMAGES-AVERAGING JUDGMENT OF JURORS.-A verdict may be sustained, although the damages were first computed as the average judgment of the jury, if afterward they fairly agreed on the amount. Dodge v. Carroll. Opinion by Bingham, J.

EASEMENT AQUEDUCT RIGHT BY PRESCRIPTIONDISTURBANCE OF.-The form of the cover of a reservoir used in the enjoyment of an aqueduct easement gained by prescription, is not fixed by the prescription, but may be reasonably changed by the landowner in the improvement of his grounds, no mjury being done to the aqueduct proprietors. Kittredge v. Woods, 3 N. H. 503, 505; Conner v. Coffin, 22 id. 538, 541; Needham v. Allison, 24 id. 355, 358; Sawyer v. Twiss, 26 id. 345; Plumer v. Plumer, 30 id. 558, 568; Wadleigh v. Janvrin, 41 id. 503, 514; Brown v. Collins, 53 id. 442, 448, 450. There is no presumed grant of a right to exercise the easement in an unnecessary and unreasonable manner. Washburn Ease. 82. The right of the easement owner and the right of the land-owner are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both Ollcott v. Thompson. Opinion by Doe, C. J.

TITLE-ASSERTION OF BY FORCE.-If one wrongfully takes the chattel of another from his possession, the latter may retake it, using no more force than is necessary for that purpose. State v. Elliot, 11 N. H. 540; Sterling v. Warden, 51 id.217; S.C.,52 id. 197,203; Blades v. Higgs, 10 C. B. (N. S.) 713; Mills v. Wooters, 59 Ill. 234. Hopkins v. Dickson. Opinion by Bingham, J.

PAYMENT[— APPLICATION OF.-A debtor's application of a payment to a particular item of his debt need not be express, but may be inferred from circumstantial evidence of his intention. Caldwell v. Wentworth, 14 N. H. 431; Carpenter v. Goin, 19 id. 479; Young v. Woodward, 44 id. 250; Bangor B. Corp. v. Whiting, 29 Me. 123; Treadwell v. Moore, 34 id. 112; Phillips v. Moses, 65 id. 70; Emery v. Tichout, 13 Vt. 15; Rohan v. Hanson, 11 Cush. 44; Richardson v. Woodbury, 12 id. 279; Moorehead v. Bauk, 3 Watts & Serg. 550; Bank v. Moorehead, 5 id. 542; Tayloe v. Sandiford, 7 Wheat. 13; Peters v. Anderson, 5 Taunt. 596; Waters v. Tompkins, 2 C. M. & R. 723; City D. Co. v. McLean, L. R., 9 C. P. 692; Chitty v. Naish, 2 Dowl. P. C. 511; Brazier v. Bryant, id. 477. Lanton v. Rowan. Opinion by Doe, C. J.

EXEMPTION-VENDEE IN FRAUD OF CREDITORS CANNOT CLAIM.-The vendee of chattels sold in fraud of *To appear in 59 New Hampshire Reports.

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