ing commenced by such owner, a contractor under such owner can not elect to consider the building completed at the time of the transfer of title and file and foreclose his lien accordingly. Reversed. Opinion by BREWER, J. All the justices concurring.-Perry . Conroy.

October, 1879.


Vovember, 1879.

CO-ADMINISTRATOR--LIABILITY ON BONDS JOINT IN FORM-CO-SURETYSHIP.-Action by appellant, as administratrix, against her co-administrator, Wyant, and their joint securities, upon an adininistrator's bond, the condition of which was as follows: "The condition of the above obligation is that if the above bound Benjamin Wyant and Maria Wyant shall faithfully discharge the duties of this trust as administrator of the estate of Jacob Wyant, deceased, according to law, the above obligation is to void,"i etc. The question presented in the case is whether Maria Wyant could maintain an action on the bond, in which she was a principal obligor, against her co-obligors therein, after Benjamin Wyant had resigned his trust, to recover damages for a breach committed by him alone of the condition of the bond. Held, that the evident meaning of the statute is that where two or more persons are appointed administrators of a decedent's estate, each of said persons shall execute a separate bond for the faithful discharge of his duties, and that the bond in suit must thereupon be construed as the separate bond of each. This being the case, Maria Wyant is not a surety on the separate bond of Benjamin Wyant, and is neither a proper nor a necessary party defendant to a suit on his separate bond to recover damages for breaches committed by him alone. After Benjamin's resignation it became the duty of Maria, as the remaining administrator of the estate, to complete the administration thereof, and in the discharge of this duty she was expressly authorized to maintain this action on the separate bond of said Benjamin against bim and his sureties therein. Braxton v. State, 25 Ind. 82; Prichard v. State, 34 Ind. 137; Moore v. State. 40 Ind. 558, overruled, so far as they conflict with this decision. Judgment reversed. --State v. Wyant.

JUSTICE OF THE PEACE- JUDGMENTS · EXECUTIONS-WHEN VOIDABLE. — Proceedings and judgments before justices of the peace are not required to have that formality which would be expected in higher courts. A judgment by a justice showing that the defendant appeared and confessed judgment for the amount stated is good as between the parties, and is only void as to creditors of the judgment defendant, for want of affidavits that the defendant justly owed the debt. The provision requiring that before an execution shall issue upon a judgment taken before a justice, a transcript of which has been filed with the clerk of the circuit court, the plaintiff sball file his affidavit that the judgment is impaired in whole or in part, is for the benefit of the defendant, and an execution issued without such affidavit is voidable but not void. A purchaser under it acquires a good title, even if he had notice of its voidable character. The defendant may, if he moves in time, have the execution set aside for the want of the atidavit; but if he neglects to do so, proceedings under it will be as valid as if the affidavit had been filed. Freeman on Executions, sec. 29. Ailirined.-Marity v. Eastridge.

MORTGAGE-FIXTURES.-Where the defendant delivered to S, the owner of a machine shop, an Exeter sectional boiler to be used on trial at said machine shop which boiler, by agreement was to remain the personal property of the defendant till paid for; was placed in said building by S for the purpose of fur. nishing the motive power for the machinery; was firmly attached to the land; was in connection with the steam engine, shafting and machinery adapted to said machine shop and essential to the enjoyment and use of the building for the purpose for which it was intended, and S, not having paid for said boiler, subse. quently made a mortgage to the plaintiff of said build. ing and the real estate, including said boiler in express terms, the plaintiff having no notice of the defendant's claim until after the delivery of said mortgage deed, and said mortgage was foreclosed for breach of condi. tion, it was held, that said boiler became a part of the realty and passed to the plaintiff by its mortgage. McLaughlin v. Nash, 14 Allen, 136; Pierce v. George, 108 Mass. 76; McConnell v. Blood, 123 Mass. 4i. Opinion hy Moxton, J.--Southbridge Sav. Bank t. Exeter Machine Works.

FOREIGN JUDGMENT JUSTICE OF THE PEACEJURISDICTION. - A judgınent of a justice of the peace of another State is conciusive if it is duly proved and if the justice has jurisdiction to render it. But nothing can be presumed in favor of the jurisdiction of courts or magistrates having only a special or limited jurisdiction. The record should show that the judgment was within the limits of their jurisdiction. Hendrick v. Whittemore, 105 Mass. 23, Wells v. Stevens, 2 Gray, 115; Sayle: v, Briggs, 4 Metc. 421; Nye v. Kellam, 18 Vt. 544; Wright v. Fletcher, 12 Vt. 431. 2. Where, therefore, it appeared that by the statutes of Vermont “a justice is authorized to accept and record a confession of any debt to a creditor made by the debtor personally, either with or without antecedent process, as the parties shall agree and render judgment on such confession," and the record of a justice, put in evidence, showed that the defendant appeared personally before the justice without antecedent process and acknowledged the debt to be due to the plaintiff, but it did not show that he agreed ibat such acknowledgment should be taken as a confession of judgment or that judgment should be rendered thereon without antecedent process-in a suit upon such judgment in the superior court here, it was rightly held, that the justice of the peace had no jurisdiction, and judgment was properly ordered for the defendant. Opinion by MORTON, J.-Henry v. Extis.


(Filed at Ottawa, October, 1879.)

DAMAGES NEGLIGENCL OVERFLOWING WATER --FREEZING.- This was an action against the Chicago & Northwestern R. Co. to recover damages for causing and permitting water to flow and escape from a water tank of the defendant upon premises of the plaintiff. The plaintiff recovered below. It seems that plaintiff owned land in the vicinity of the water tank of defendant upon which he kept a stock of sumber; that during the winter of 1870 the water was

permitted to escape in large quantities from the tank, through the overflow pipes. The water ran upon the land of plaintiff and froze there. The suit respects the damages resulting from this formation of ice to lumber and material, SHELDON, J.: "That considerable damage resulted to appellee from the freezing upon his premises of water which flowed thereon froin the water tank of the company is established by the proof. It appears, too, that the damage was sustained in consequence of the freezing and the detention thereby of the water; that but for that the water would have tlowed down and off the premises without injury. It is claimed that the damage was not the proximate result of the defendants act of turning the water upon the land, but of the freezing of the water which was the act of God. But to claim exemption from liablility for the consequences of such an act of nature it must be such as could not have been foreseen and prevented by the exercise of any care and prudence. Nugent v. Smith, 3 Cent. L. J. 611; L. R. 1 C. P. D. 423; Panton v. Norton, 18 III. 496. Appellant must be held to have known that the water would freeze upon appellee's land at the time it was turned on it, it being a fact occurring in the course of nature, and be chargeable with the consequences resulting from the known action of frost in freezing water in combination with appellants own act. The injury was one which might reasonably and naturally have been expected to result.' Judgment reversed.-Hoag v. Chicago, etc. R. Co.

liability intended to be assumed appears from the writing itself, and can be barred by parol no more than could have been the contract which the law imports had it been written out in words. This, I had understood as having been settled by the more recent decisions of this court, especially by Mason v. Burton, 54 NI. 349; Beattie v. Browne, 64 III. 360; Jones v. Albee, 7 Il. 34; Skelton v. Dustin, decided at the January term, 1878, 8 Cent. L. J. 176. Such are the decisions elsewhere. Dale v. Gear, 38 Conn. 15; Woodward v. Foster, 18 Gratt. 200: Charlis v. Dennis, 42 Wis. 56; Coon v. Pruden, 24 Minn.100; Rodney v. Wilson, 67 Mo. 100. It is a different case where one not a party to a note writes his name on the back of it. There, under our decisions, it may be shown by parol what was the liability intended to be assumed. There is in that case no such certain and well known contract implied by the law as there is where the payee indorges it in blank. The distinction is pointed out in the case in 18 Gratt. The doctrine which would permit the legal import of the indorsement in blank of the payee of a note to be varied by parol evidence and so be made liable to be thus converted into a contract of guaranty or other kind, I should regard as dangerous and pernicious in effect upon commercial paper, as not sound in principal and as opposed to all the better authority." CRAIG, C. J., and DICKEY, J., concur.Worden v. Salter.

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GAN at the January and April Terms, 1879. HENRY A. CHANEY, State Reporter. Vol. 40. Lansing: W.

8. George & Co. 1879. REPORTS OF CASES ARGUED AND DETERMINED in the Supreme Court of the State of Wisconsin, with tables of the cases and principal matters. O. M. CONOVER, Official Reporter. Vol. 46. Chicago: Callaghan & Co. 1879.


COURT OF THE UNITED STATES. October Term, 1878. Reported by WILLIAM T. OTTO. Vol. 8. Boston: Little, Brown & Co. 1879.

NOTE-GUARANTY BY THIRD PARTY LIABILITY ASSUMED BY GUARANTOR. This was an action brought before a justice of the peace against defendant as indorser and guarantor of a promissory note, which resulted in a judgment for plaintiff. On appeal to the circuit court, the verdict and judgment were in favor of the plaintiff. To reverse this, the defendant appeals to this court. The facts are substantially that these parties had dealings together, the result of which was that appellant was found in debt to appellee in the sum of five thousand dollars, and for which he gave appellee his note. This note was afterwards taken up and another note given, upon the back of which appellant wrote his name. When suit was brought upon the note this writing above appellant's name was placed upon it by appellant's attorney: **For value received, I hereby assign the within note to Paul L. Saulter, and guarantee the payment thereof." SCOTT, J., says: “The question is what did appellant intend when he put his name on the note? Was it his intention to guarantee the payment of the note, or only to transfer the title, he himself being liable as assignor only.

The question for the jury was, did appellee indorse this note for the sole purpose of transferring the title, or with a guarantee of ultimate payment of the note by himself? If the latter, the guarantor becomes liable if the money is not paid according to the terms of the guaranty. Affirmed. SHELDON, J., dissenting, says: “The conclusion reached here may perhaps be justitied, on the ground that as parol evidence was entered into without objection by both sides to show what was the liability assumed, the question as to the incompetency of such evidence might be considered as having been waived. But I wish to express my dissent from any inference which may be drawn from the opinion, that parol evidence is admissible to show what liability was intended to be assumed by the indorsement in blank of the payee of a promissory note. Whenever the payee of a promissory note indorses it in blank, there is a certain and well known legal import attached thereto that it is a contract of indorsement and not one of guaranty or other kind. In such case, the

The fortieth volume of the Michigan reports is unusually large, containing, with the index and table of cases, nearly 850 pages, and an unusual number of interesting and important cases will be found within its covers. Many of these have already appeared in these columns, but the following decisions we have, we believe, not yet noted: Damages for failure to perform a contract to procure the discharge of a mortgage can not be claimed, if it does not appear that the mortgage was foreclosed or the claimant damnified. Rose v. Jackson, p. 31. A resolution of appointment is not a contract and may be withdrawn or altered before acceptance. Kalamazoo Manf. Co.v. Macalister, p. 84. A note written by plaintiff's attorney before suit, and expressing the opinion that defendant is not liable, is not admissible in evidence for the defense. Farmers Mutual Insurance Co. v. Bowen, p. 147. A deposition is not inadmissible merely for being transmitted in a gummed envelope, if it has not been tampered with. Van Sickle v. Gibson, p 170. A deposition does not need a separate jurat, if the commissioner who took it certities that the deponent was duly sworn. Id. An unsigned affidavit for a transcript of execution is valid if properly sworn to. Merrick v. Mayhue, p. 196. The measure of damages justly sued out. A failed in such suit. B now sues on said bond and seeks to recover, actual aad vindietive damages of A, D and E. Can B recover vindictive damages in suit on bond? Can he recover such damages of D and E as sureties? If so, what is the measure of such damages the penalty of the bond, or as in other cases.

K. &C.

for putting up a steam boiler with such defects as to make it worth less than the contract price, is the difference between its value in its defective condition and its value if completed in compliance with the contract. White v. Brockway, p. 209. In an action involving the settlement of accounts, figuring done by one of the parties wben they were trying to settle is ad missible as res gestæ. Bennett v. Smith, p. 210. A leading question points out the desired answer and does not merely call for an affirmative or negative. McKeown v. Harvey. Unpublished manuscripts are not leviable property. So held of a set of abstract books. Dait v. Woodhouse, p. 399. It is extreme cruelty'' to a wife for her husband openly to consort with and express his preference for loose females. McClung v. McClung, p. 493.

The forty-sixth Wisconsin reports contains about 750 pages, and fewer cases than the volume just examined, the opinions being generally of greater length. We observe no decisions of general interest which we have not heretofore referred to. The eighth volume of Otto's United States Supreme Court Reports, has less than 700 pages.

Having examined these three volumes together with some care, we have come to the conclusion that in so far as the work of the reporters and publishers is concerned the honors are by no means evenly divided. Mr. Chaney's syllabi and index are much better than those of the other two. The Wisconsin reporter gives too much space to his statement of facts preceding the opinions and to briefs of counsel. On the other hand Mr. Otto pays very small attention to the former; this we believe has been a subject of complaint ever since the appearance of his first volume. As regards the mechanical execution—the paper, the press work and binding-the 98th U. S. takes the first place, with the 40th Wisconsin and the 46th Michigan, a very poor second and third.

49. THE FOLLOWING Note is executed: “$100. Leavenworth, Kas., Jan. 1, 1879. Six months after date I promise to pay to the order of John Doe, one hundred dollars for value received. This note is not negotiable. (Signed) Richard Roe." A printed form is used, but the date, amount, time of maturity, payer and words “ This note is not negotiable," and the signature are all written in. The note is indorsed without recourse to an innocent purchaser before due. The question is, whether the note is negotiable, or is it subject, in the hands of the innocent holder, to all defenses existing between payer and payee. Can any of your subscribers refer me to authorities? s.


No. 43.

[9 Cent. L. J. 439.] “An execution issued by a justice of the peace, and not returnable according to law, is not merely erronous, but is void." Stevens v. Chouteau, 11 Mo. 382; 5 Wend. 276; 9 Wend. 388; 16 Vt. 393. The execution being absolutely void it would seem that the constable incurred no liability by his failure to execute the writ. Linneus, Mo.

N. & B.


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47.-A CONTRACTS WITH B to sell him his farm. He wants $ 25 bonus money down. B is unwilling to pay the money to A, but will deposit it with C, to be paid to A when A shall have performed a particular part of the contract, which is to be done in a reasonable time. A, unwilling that the money be deposited with C, selects D, and urges that the money be left with him. B finally agrees and leaves the $ 25 with D, to be paid as above. Within a reasonable time A performs the part of the contract specified, but D has absconded with the money. Is D A's agent or B’s bailee or both? Can A recover the money from B?

H.J. C.

The President has sent to the Senate the nomination of Hon. George W. McCrary to the circuit judgship vacated by Judge Dillon. The selection has just been approved by a large meeting of the bar at Mr. McCrary's home, and is indorsed by the press of both parties in the State.- Samuel Reber, one of the foremost and best known members of the bar of this city, died suddenly at Cincinnati on the 1st inst. The deceased lawyer was born in Ohio in 1813, and began the practice of the law in St. Louis in 1840. He was for some time a judge of the Court of Common Pleas and Circuit Court of this city, which latter position he resigned before the close of his term. Among other positions to which his legal knowledge called him were those of city counselor and professor of equity in the Washington University Law School. His health had been failing for some time. --The death is announced in England of Edward William Cox, Sergeant at Law, in his 70th year. He was called to the bar in 1843, and in 1857 became recorder of an English town. But he was more distinguished as a journalist than as a lawyer. Sergeant Cox was the proprietor of The Lar Times, and of The Field and Queen newspapers. The Law Times was under his editorial supervision. He was also the author of "The Advocate," published in 1832, and other popular works relating to legal subjects. The President's message calls the at. tention of Congress to the arrears in the business of the Supreme Court of the United States, and on the circuits. The remedy suggested is the appointment of additional circuit judges, and the creation of an intermediate court of errors and appeals.

48.--A SUED B AND ATTACHED HIS property, giving bond with D and E as sureties, conditioned that A would pay B all damages sustained from the levy of the attachment, if the same were illegally and un

The Central Law Journal. ing immediately committed.” See also on this

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subject, Regina v. Mabel, 9 C. & P. 474 ;

Timothy v. Simpson, 1 C. M. & R. 757; ST. LOUIS, DECEMBER 12, 1879.

Grant v. Moser, 5 M. & G. 123; Baynes v.

Brewster, 2 A. & E. (N. S.) 384; Wheeler v. CURRENT TOPICS.

Whiting, 9 C. & P. 262; Howell v. Jackson, 6 C. & P. 723; Knot v. Gay, 1 Root. 66;

State v. Brown, 5 Harr. 597; McCullough v. The extent of the right of police officers to

Com. 67 Pa. St. 32; Russell v. Shuster, 8 W. arrest without a warrant was considered by

& S. 307; Com. v. Carey, 12 Cush. 252. the Supreme Court of Michigan, in the recent case of Quinn v. Heisel. The court doubted whether a municipal ordinance could justify arrest without process where common law

The Supreme Court of the United States in principles do not, but held that arrests may

the case of Cowell v. Colorado Springs Combe made without a warrant for breaches of the

pany, decided at the present term, sustained peace committed in the presence of the offi

a condition in a deed of land that intoxicating cer, but not on information or suspicion for liquors should never be manufactured, sold past offenses; and that arrests without pro

or otherwise disposed of as a beverage in any cess, to prevent threatened breaches of the

place of public resort on the premises. It peace, were only lawful where the threat was

was expressly declared in the deed that on accompanied with an overt act. The court said: breach of this condition by the grantee or his “There are many loose general statements in assigns the deed should become null and void, the books as to the right of officers to make and the title to the premises should revert to arrests without warrant. That they have a the grantor. The defendant having gone into right to arrest for breaches of the peace com- possession of the premises under the deed, mitted in their presence is conceded by all. opened a billiard saloon in a building therein, It is equally clear that they can not arrest for which became a place of public resort where a past offense, not a felony, upon information he sold intoxicating liquors. It was held by or suspicion thereof, although expressions the court that upon such breach the grantor may be found which would seem to assume could bring ejectment without a previous such power. How far or when they may in- entry or demand for possession. Mr. Justice terfere by an arrest to prevent a threatened FIELD, said: “The validity of the condition

: “ breach of the peace is not equally clear. We is assailed by the defendant as repugnant to are of opinion that a threat or other indica

the estate conveyed. His contention is, that tion of a breach of the peace will not justify as the granting words of the deed purport to an officer in making an arrest, unless the transfer the land, and the entire interest of facts are such as would warrant the officer in

the company therein, he took the property in believing an arrest necessary to prevent an absolute ownership, with liberty to use it in immediate execution thereof, as where a threat any lawful manner which he might choose. is made coupled with some overt act in at- With such use the condition is inconsistent, tempted execution thereof.

In such cases and he, therefore, insists that it is repugnant the officer need not wait until the offense is

to the estate granted. But the answer is that actually committed. To justify such arrest the owner of property has a right to dispose the party must have gone so far in the com- of it with a limited restriction on its use, howmission of an offense that proceedings might ever much the restriction may affect the value thereafter be instituted against him therefor, or the nature of the estate. Repugnant conand this without reference to any past similar ditions are those which tend to the utter suboffense of which the person may have been version of the estate, such as prohibit entirely guilty before the arrival of the officer. The the alienation or use of the property. Conobject of permitting an arrest under such cir- ditions which prohibit its alienation to parcumstances is to prevent a breach of the ticular persons, or for a limited period, or its peace, where the fåcts show danger of its be- subjection to particular uses, are not subver

Vol. 9—No. 24.


fee may

It was

sive of the estate ; they do not destroy or officer was not present when the telegram was limit its alienable or inheritable character. received, he having gone away on other busiSheppard's Touchstone, 129, 131. The re- ness, but he had left a deputy in possession. ports are full of cases where conditions | Upon receipt of the telegram the deputy teleimposing restrictions upon the

to graphed to the officer for instructions, telling which property conveyed in

him that a telegram had been received to be subjected have been upheld. In this stop the sale, but saying nothing about an way slaughter - houses, soap-factories, distil- order of the Court of Bankruptcy. The offileries, livery-stables, tanneries, and machine- cer replied by telegram, that if the debtor shops have, in a multitude of instances, been had filed a petition or the debt was paid, the excluded from particular localities, which sale was to be stopped, otherwise it was to thus freed from unpleasant sights, noxious proceed. The sa was then continued. It vapors or disturbing noises, have become de- appeared from the evidence that there had sirable as places for residences of families. been some previous attempts by the debtor to To hold that conditions for their exclusion stop the sale, and that he had promised to from premises conveyed are inoperative, would come and pay the execution debt, and the defeat numerous arrangements in our large

auctioneer swore positively that he believed cities for the health and comfort of whole the telegram to the sheriff's officer was a mere neighborhoods. The condition in the deed of ruse of the debtor, and had no suspicion that the plaintiff against the manufacture or the any proceeding had been taken in the Court sale of intoxicating liquors as a beverage, at of Bankruptcy, or that any order had been any place of public resort on the premises, made by it. The Court of Appeal held that was not subversive of the estate conveyed. there was no ground for the application as It left the estate alienable and inheritable, and against the sheriff's officer, he having free to be subjected to other uses.

had no actual notice of the injunction. He not unlawful nor against public policy, but

could not be held in such a way responsible on the contrary it was imposed in the interest for the act of his subordinate. And of public health and morality.” For cases as to the auctioneer, the court said that in which similar conditions have been sus- though no doubt there

circumstances tained, see Plumb v. Tubbs, 41 N. Y. 442; of suspicion against him, they could not, Doe v. Keeling, 1 M. & S. 95; Gray v. after his positive affidavit, order him to be Blanchard, 8 Pick. 282; 14 Kas. 61.

committed, the evidence showing that that which had taken place might not unreasonably have led him to form the conclusion which he

swore that he did form. The court ordered In ex parte Langley, decided by the English

that the sheriff's officer should have his costs Court of Appeal on the 12th ult., the


in both courts, but that the auctioneer should was raised whether notice by telegram of an

bear his own costs. JAMES, L. J., was very injunction, granted by the Court of Bank

far from saying that sufficient notice of an ruptcy to restrain a sale, was sufficient to

injunction could not in any circumstance be render persons who after receiving the notice

given by telegram, and THESIGER, L. J., said committed a breach of the injunction, liable

that he did not dissent from the proposition to be committed for a contempt of court.

laid down by the chief judge in in re Bryant The chief judge had made an order for the

25 W. R. 230, L. R. 4 Ch. D. 98, that committal of a sheriff's officer and an auc

under certain circumstances a notice of an intioneer, the latter having sold the goods of an execution debtor, who had filed a liquidation

junction given by telegram might be sufficient

to render a person who disregarded it liable petition, after a telegram had been shown to

to be committed for contempt. But, in each him, purporting to be sent by some London

case, the question would be whether the notice solicitors, and addressed to the sheriff's officer in possession, which stated that an injunc- given was such that it could be reasonably intion restraining the sale (which was taking

ferred that the person who received it had had

actual notice of the injunction. And the place in the country) had been granted by the London Court of Bankruptcy. The sheriff's

onus of proof must be on those who asserted


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