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RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK.

SHOWING the Changes, Progress, and Development of the Law during the Second Quarter of the Judicial Year Beginning with October 1, 1896, Classified as Follows:

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
II. CONTRACTUAL AND COMMERCIAL RELATIONS.
III. CORPORATIONS AND ASSOCIATIONS.
IV. DOMESTIC RELATIONS.

V. PERSONAL CAPACITY,
VI. TORTS ; NEGLIGENCE; INJURIES.
VII. PROPERTY RIGHTS.
VIII. CIVIL REMEDIES; RULES AND PRINCIPLES.

IX. CRIMINAL LAW AND PRACTICE.

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
Legislative bodies.

Licenses. Failure to enter the yeas and pays on legis- The constitutionality of a statute imposing lative journals, as required by the Constitution the burden of a state license fee of $25 upon on the second and third readings of a statute itinerant vendors of goods, and requiring a authorizing municipal indebtedness, is held deposit of $500 as security, and then requiring fatal, althougb the speakers certify that the a local license fee in every place in which act was ratified. (N. C.) 487.

goods are sold equal to the amount of tax on A proposal to hold a constitutional conven- the value of the stock of goods at the ratio tion is held to be properly submitted to popu of the last tax assessment, is sustained, although tar vote and to be properly made by joint reso the act is oppressive. (Vt.) 100. lution, and not in the form of an ordinary

Taxes and assessments. law. (N. D.) 97.

Money of a nonresident deposited in a bank The distinction between a concurrent reso- within a state, although mingled with trust lution of the legislature and a law is main- funds, is held to be property within the state tained in a case which holds that such a reso

so as to be subject to the New York transfer lution ratifying an appointment by the gov-tax act. (N. Y.) 235. ernor is not express authority of law,” within

While expressing the opinion that the legisthe constitutional provisions requiring such lature has power to tax domestic judgments in authority for any contract which can create a favor of and owned by nonresidents, a Kansas claim against the state. (Cal.) 262. A rule of procedure requiring two thirds of ments among other classes of personal prop

case holds that the statutes mentioning judgthe members of a branch of a municipal goverty to be taxed do not include judgments ernment in order to dispense with a reading of owned by nonresidents. (Kan.) 810. a proposed ordinance is construed to mean Bonds of foreign corporations when deposited two thirds of the members voting, if tbey are within the state, although owned by a nona majority, and if a majority constitutes a resident, are held to be property within the quorum. (Md.) 469.

state subject to the New York transfer tax act. Eminent domain.

(N. Y.) 232. Payment into court of the amount of an A distinction between bonds and stocks of a award appealed from in eminent domain cases domestic corporation which are in the possesis held insufficient to satisfy a constitutional sion of a ponresident decedent at the time of provision that just compensation must be paid his death in another state is made by holding or secured before the property is taken or that the stock, but not the bonds, constitutes injured. (Pa.) 439.

property within the state subject to a transfer A railroad is held to be public and entitled tax. (N. Y.) 238. to the exercise of eminent domain, although A taxation of the average amount of live built for a few miles from a sawmill, through stock received each week by dealers and usua timbered region where all who choose are ally sold one day after receiving is sustained entitled to ride upon it as passengers or to under the Maryland statutes, although they have freight transported over it, even if the intend to export a part of them and actually number exercising the right is very small. do export about two thirds of all that they (Or.) 368.

receive. (Md.) 309. The authority given to a street railway com- A stipulation in a mortgage that the mortpany to cross any railroad is held limited to gagor shall pay all taxes upon the premises is the right to cross on streets or highways where held not to bind bim to pay taxes required of other provisions confine the street railway the mortgagee under a subsequent statute. route to the established streets and highways. (Micb.) 308. (Pa.) 572.

A constitutional limitation of the tax levy (PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) by a county is held to constitute a defense | without mentioning the kind of money in against such a levy for the enforcement of wbich they shall be paid. (Tenn.) 541. a judgment against a county, although the The prohibition of county aid to any indivalidity of the debt on which the judgment vidual, association, company, or corporation was rendered may be conclusively established is held inapplicable to aid given to the state or thereby. (Wyo.) 835.

the United States for a public improvement. The exemption of the roadbed of a railroad (Wash.) 817. company from city taxation is held not to A donation of county funds made to secure extend to the whole of a strip of land 1,500 the location of a state institution for the feeble feet wide used as a coal and ore terminal, minded within the county is upheld against the although a large part of it is covered by tracks; claim that it was not for a public purpose and but on a sale of such a yard to satisfy tax that it violated the rule of uniformity as to liens the purchaser takes subject to the ease taxation. (Wis.) 131. ment of the tracks. (Pa.) 564.

Township. A special assessment for special benefits on

A township is held to be a municipal corpoproperty in a levee district is held to be within ration within the meaning of a statute auà constitutional provision that all property thorizing the refunding of indebtedness by the must be taxed according to its value, and issue of bonds. (Kan.) 674. therefore a tax on the land alone and partly by acreage instead of value is invalid. (Tenn.)

Officers.

The next election of the people prescribed 725.

by the California Constitution for the expiraPoll tax.

tion of commissions granted by the governor The right to sell nontaxable property to to fill a vacancy is held to mean the next elecenforce payment of a poll tax under the tion provided for filling the particular office Mississippi Constitution, declaring that such vacant, and not necessarily the next succeedtax is a lien only upon taxable property, is ing general election. (Cal.) 41. denied, and the provision for poll taxes is said

A statute to provide a bipartisap police to be intended more as a clog upon the fran. board by giving each member of a common chise thap as a means of revenue. (Miss.) 472 council the right to vote for but two of four Municipalities.

members, and limiting the choice to persons Land within the limits of a town, although belonging to the party having the bighest or the never divided into building lots, is held sub- next highest representation in the council, is ject to municipal taxation when dear railroad held void. A majority of the judges agree depots and shops, with convenient access to that a minority of the council which is ihus highways and only a sbort distance from the given power to choose half the commissioners business portion of the town, so that it enjoys is not a city authority, within a constitutional police protection and the other benefits of the provision allowing the legislature to designate town. (Ky.) 193.

ihe authority which can appoint local officers. A local option law providing that cities may, (N. Y.) 408. if they choose, adopt certain charter provisions, The liability of a supervisor for public is held unconstitutional, under provisions pro- money lost by the failure of a bank in which hibiting special laws as to cities and requiring be bad deposited it is sustained on grounds of laws as to them to be uniform throughout the public policy, although he acted in good faith state. (Minn.) 777.

and without negligence. (N. Y.) 678. A city contract for a water supply during

Civil service rules. the term of twenty-one years, made in the exer- A statute preferring veterans to all other percise of discretionary power given by the legis- sons except women in appointments in the lature, is held valid in Kansas. (C. C. App. civil service is sustained, although it gives 8th C.) 518.

them some advantage over other persons. The power of the court to cancel a contract (Mass.) 58. for a municipal water supply because of the

Voters and elections. inadequacy of the stipulated source of supply Nominations made by a political club were is denied, but reformation of such a contract is refused recognition as those of a county conheld to be within the power of the court under vention when the participants did not regard the Pennsylvania statute. (Pa.) 92.

themselves as a convention and had not been The right of a municipal corporation to erect chosen as delegates or any of the usual steps waterworks of its own is held subject to an been taken for a convention. (Mopt.) 315. implied exception where it has contracted with

In another similar case in the same state the a private corporation for a water supply, and attempt of twenty.one persons to form a new in such case if it wishes to own a water party and then at the same time successively works plant, it is beld necessary for it to pro- hold a county convention and a state convenceed as the statute autborizes it to do to acquire tion without any previous steps taken for a that of the private company. (Pa.) 567. convention was held unavailing. (Mont.) 313. Counties.

Nominations of presidential electors, made An act to incorporate a county is held void by the chairman of the state committee of a under a constitutional provision requring a political party with 100 associates by certifuniform system of county governments. icate, are held valid under the Wyoming stat. (Nev.) 602.

ute when made in lieu of candidates previously Power to make county bonds payable in named in the same manner who had declined, gold coin of the present standard, weight, and and when an objection is raised only by the fineness, is held not to be included in the committee of a different political party. power conferred by statute to issue bonds!(Wyo.) 845.

CONTRACTUAL AND COMMERCIAL RELATIONS.) The attempt of a nonresident candidate for state, it is held that state laws prohibiting the Vice President to prevent the use of his name running of railway trains on Sunday, if enon a state ticket for presidential electors nomi- acted in good faith in the exercise of the police nated at a certain state convention in Kansas power and without discrimination against is beld ineffectual, although the statute pro-interstate or foreign commerce, do not violate vides that a person named as a candidate the Federal Constitution. (Va.) 105. may cause “bis name to be withdrawn from

Public highways and grounds. nomination.". In this case there was no at

A grant to a subway company of the right tempt to decline the national nomination, or to lay a subway for electric wires under even to withdraw as a candidate within the streets is held to be invalid because made for state. (Kan.) 146.

private business, where no obligation is A statute prescribing a property qualifica- shown as 10 who should be permitted to use it. tion for voters at city elections is sustained, in (Mo.) 369. the absence of any constitutional provision to The right of a city to permit a permanent the contrary, although the Constitution pro- freight house to be built by a railroad com. vides no other qualification for any male citi: pany on a public levee is denied because pubzen of full age than that of residence. (Md.) lic grounds are held in trust for the public. 55.

(Minn.)184. The addition of the party name after a can- The vacation of a part of a street at some didate's name written on a ballot in the same distance from one's property is held, reviewway that such designations follow the printed ing the authorities, not to give him any right names of candidates is beld not to destroy the of action, as the injury is common to the legality of the ballot when it was clearly not public, where ample means of access remain. intended as a distinguishing mark. (Cal.) 45. (Ind.) 769. The power of the legislature to prevent the

Equitable estoppel is sustained against a appearance of the name of any candidate for an office more than once upon an official bal: claim to a public park by virtue of a dedicalot is sustained against the claim that it in- tion on a recorded plat where the original fringed the rights of electors. (Obio) 498.

owner has always continued in possession

without claim by the public except as it may The two thirds of the voters voting at an be implied from failure to tax it for some election whose assent is necessary to authorize municipal indebtedness is held to mean two years, after which he makes a new plat describthirds of all the votes cast for any purpose at ing the land as his own, makes expenditures the election. (Ky.) 256.

upon it, builds a sidewalk under order of the The right to examine the records of the common council, and his second plat is exelectoral board is held to be limited to so much pressly adopted in an act incorporating the of the records as relates to the appointment

city. (Wis.) 733. and removal of judges and commissioners of

Milk test. election and registers or the ordering of a new

The tuberculin test of cows from which registration. (Va.) 144.

milk is supplied to a city is held to be within

the power of municipal authorities to provide Courts. Two of the three members of the Tennessee by ordinance. (Minn.) 318. court of chancery appeals, in the absence of

Garbage. the other, are held to have authority to con

An ordinance probibiting the transportation sider and decide cases, although there is no of garbage without a license is sustained as an provision of law on the subject

. The case exercise of the police power, but beld inappliseems to be without direct precedent. (Tenn.) cable to such rejected food as may be utilized 538.

for other purposes so long as they do not conA conflict between the rules of an appel- stitute a nuisance. (Conn.) 279. late and a lower court is considered in a case

Schools. which bolds that a judgment rendered against A reservation of the right to dismiss a school a party in the absence of his counsel in ac- teacher, stamped across his contract of emcordance with a rule of the court, but wben ployment, is held ineffectual to give the dithe court knows that the counsel is engaged rectors power to dismiss him arbitrarily, where in the supreme court in obedience to the rule the statute gives power to dismiss for incomof the latter court, is held invalid. (Pa.) 593. petence, improper conduct, or inattention.

An action for personal injuries the parties (Tenn.) 548. to which reside and the cause of which arose

State university. in another state is sustained under the Federal

The power of the legislature to designate Constitution guaranteeing equal privileges and where a department of the state university immunities to the citizens of the several shall be located is deniedander a constitutional states. (Wis.) 503.

provision giving the general supervision of the Interstate commerce.

university to a board of regents. (Mich.) 150. Overruling the prior decision in the same

II. CONTRACTUAL AND COMMERCIAL RELATIONS. The performance of one's own contract An agreement by the father of a bastard which he has bestitated or refused to perform child to convey property to the mother in conis held a sufficient consideration for a promise sideration of her release of her right to compel to him by a third person who will be benefited him to assist in maintaining the child is susby the performance. (Mass.) 33.

tained against the contention that the promise (CONTRACTUAL AND COMMERCIAL RELATIONS.) is based solely on a past consideration. (Conn.), written description of the insured propery 360.

specifies such stock as is usually kept in such A contract not to engage in the same busi- stores. (Cal.) 857. ness in the locality, made by one who sells his A new question as to the right of tbe benebusiness, is held to be broken by his taking ficiary of a certificate on the life of an insane stock in or helping to organize or manage a person to notice of his failure to pay assesscorporation to carry on such business. (N. C.) ments is decided in favor of such right after 389.

notice of the condition of the insured and a The generic term “money” is held to cover request for such notice. (Pa.) 436. everytbing that by common consent represents A policy of insurance issued by a foreign property and passes as money in current busi- company in another state is held to be witbin ness transactions; therefore the payment of a the scope of the New York statute giving a debt or judgment during the late civil war in married woman the right to assign a policy of confederate money, if accepted, is regarded as insurance on her husband's life, with his writfull settlement. The authority of an agent to ten consent, when it is issued for her benefit. receive it in such a case is upheld if it was (N. Y.) 175. then generally received in business transactions The intentional killing of an insured person as the current money of the country. (Fla.) by a third person without the former's conniv. 283.

ance or foreknowledge is held to be an acciBills and notes.

dent within the meaning of an insurance The fact that the president of a corporation policy, and the omission of the word "death” who pledges its negotiable note for his own from a clause excluding liability for intentional debt was the officer who signed it is not held injuries inflicted by any other person, when it to prevent the taker from being a bona fide is used in other excepting clauses immediately holder, if the note was payable io a third per- contiguous, is held to leave the insurer liable son who had indorsed it. (N. Y.) 69.

in case of the murder of the insured. (Pa.) The indorsement of a firm name on his own

301. note to the firm, made by one partner who

A decision respecting perpetual insurance discounts it for his own benefit, is held to give holds that a provision making the company notice of any lack of authority to make the in- liable forever to the assured, his heirs, and as dorsement. (Pa.) 723.

signs, and that any assignment of the policy

shall be brought to the office of the company Bonds. The bond of the cashier of a national bank to be entered and allowed, does not give the "for and during all the time he shall hold the company any right to refuse to enter and alsaid office” is held to cover defaults in years not to consent to the transfer of old policies.

low an assignment solely because it has decided subsequent to that in which it is given, al

(Pa.) 159. though the by-laws of the bank provided for his election annually and he was in fact ap bility for rent under a lease while the building

An insurer against loss by reason of liapointed by resolution every year. (C. C. App. is untenantable because of fire is held not to be 81h C.) 477. The rule that a surety's responsibility is to landlord a part of the proceeds of the land

relieved by the tenant's receiving from his be strictly interpreted is applied by a decision lord's insurance, at least when the combined that sureties on a bond for a firm as agents are not responsible for misappropriation by one

amounts will not wholly reimburse the tenant. member after the dissolution of the firm and

(Pa.) 600.

Lease. the retirement of the other party from the

The washing away, by unprecedented rav. agency, even if the pledgee knew nothing of such dissolution. (N. D.) 861.

ages of a river, of land leased for a landing, so

that only a mere fragment of the lot, unavailaBanks.

ble for such use, was left, is held to extinguish The credit of checks and drafts by a bank to the obligation to pay rent. (C. C. App. 6th C.) a correspondent after the latter has failed but 550. before the other knows of that fact is held in. The lease of the roof and outside of a party effectual to prejudice the rights of a depositor wall on a building for the purpose of advertisof such paper, when it was received fraudu. ing by means of a stereopticon is construed in a lently by the insolvent bank. But such credit case wbich bolds that ihere is no eviction by before the actual failure of the bank was held reason of the fact that the value of the wall to bar the depositor's right to reclaim the paper for advertising purposes is destroyed by the or its proceeds. (Tenn.) 532.

fact that the root of the adjoining building is A credit by one bank to another of a draft leased to another person and a screen erected made on the same day that the latter bank thereon for advertising purposes. (Pa.) 575. failed was presumed, 'in favor of the general

Carriers. creditors seeking a pro rata distribution of the

The relation of a steamboat company to a assets of the insolvent bank and against the passenger occupying a stateroom is held to be original depositor of the draft therein which that of an inpkeeper, and the carrier is beld was fraudulently received by the insolvent liable as an insurer for money stolen from the bank, to have been made before, and not after, passenger's clothing during the night while his the failure. (Tenn.) 536.

stateroom door was locked and his windows Insurance.

fastened. (N. Y.) 682. Gasolene constituting a part of the usual A constitutional provision that common carstock kept iu a country store is held properly riers shall not contract for relief from their kept on insured premises notwithstanding a common-law liability is held to preclude : printed condition prohibiting it, where the stipulation limiting the value of animals car(CORPORATIONS AND ASSOCIATIONS. DOMESTIC RELATIONS.) ried and requiring notice of injury before they | agent receiving the message about dark, who are uploaded or mixed with others, in order to said it could be delivered that night. (Tenn.) recover damages. (Ky.) 685.

431. The contract of a baggage transfer company

Notice by letter. to transport baggage from a residence to a

Notice by registered letter, when authorized, railroad depot is held to be fully performed, so is beld complete by due registration, but not that the liability terminates, when the baggage until the letter is numbered as required by is delivered to the agent of the railroad com- postal regulations, although the postmaster pany at the depot. (Ala.) 137.

may have received it properly addressed and Telegrams.

stamped and given a receipt therefor. (Iowa) Overruling an early decision in that state, a

466. Missouri case now holds that a stipulation

Law of place. against liability for mistakes in unrepeated A contract to pay money to a loan associatelegrams is not valid so far as it applies to tion situated in another state at its place of cases of negligence. (Mo.) 492.

business is held to be governed by the laws of A rule of a telegraph company not to deliver that state, although it has an agency at the messages outside of a 4 mile limit is beld place where the borrower resides, through ineffectual to excuse the company for delay in which the contract was made. (Pa.) 595. delivering a message when the rule was not See also infra, VII., as to place of remedy. known to the sender or mentioned by the

III. CORPORATIONS AND ASSOCIATIONS.

Authority to lease a railroad, given by the by a receiver of a mutual insurance company statutes of another state, is held ineffectual to under a decree of the court, is held not to sustain the lease of a railroad contrary to the be an adjudication binding on the courts of policy of the state in which the road is situated. another state as against the maker of such a (Pa.) 577.

note, who was not a party to the proceedings The foreclosure of a railroad mortgage, insti- and who before the bankruptcy of the comtuted in behalf of another company which had pany had surrendered his policy and received obtained a majority of the stock of the com- back his pote. (Iowa) 704. pany and also of the mortgage bonds, was defeated by showing that the corporation buy.

Partnership. ing the stock had obtained control of its affairs held to belong to the surviving partners when,

The goodwill of a partnership business is and rejected business which would have pro; under the contract of partnership, the latter duced income, and diverted the income received to other purposes than the payment of interest purchased the interest of the deceased at its on the mortgage, thereby causing a default. inventoried and appraised value with the right (N. Y.) 76.

to continue the business. (Cal.) 265. Liability of a stockholder under statutes

Religious society. which make it contractual and not penal is An attempt by the majority of the members held to be a part of the assets which go to a of an independent congregation of the “Disreceiver of a corporation. (Pa.) 737.

ciples of Christ” who had been wrongfully The right to credit payments of dues in a dropped from the rolls to hold a meeting under building and loan association, made by a stock. direction of a tribunal of the elders of sister bolder upon a loan which is tainted with usury, congregations and choose new officers is held is denied on the ground that this would release ineffectua). (Pa.) 169. such a shareholder from his portion of the

Club. losses. (Tenn.) 201.

The distribution of intoxicating liquors by The judgment of a sister state as to the an incorporated club to its members is held not assets, debts, and amount of assessments neces. to constitute a sale within the meaning of a sary in winding up a mutual insurance com- license law when it is done without profit but pany is held to be conclusive on a stockholder on payment by each member for what be in another state as to such assessments. (Mich.) receives as he pays for other food and drink 694, 701.

obtained there. (Pa.) 94. But an assessment on premium potes, made

IV. DOMESTIC RELATIONS. See also infra, IX.

rule applies when mere matters of form or A child by adoption is beld to be “lawful ceremony are in question. (Md.) 773, issue” of the adopted parent within the mean. The effect of intoxication to defeat a maring of a will making a gift to the latter with riage is considered in a case which holds that remainder to lawful issue, where the statute the degree of intoxication must be such as to makes the adopted child a child for all pur- render the person non compos mentis and devoid poses except to take property expressly limited of reason. (Fla.) 87. to beirs of the body. (R. I.) 500.

Habitual intemperance which will authorize Exceptions to the rule that a marriage valid divorce is held not to be sbown by the fact of in one place must be valid everywhere are con intoxication about once in three weeks to such sidered in a case wbich holds that the generall an extent that the person did not go as usual to

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