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nicipal or trading, whose servant he is, receives such moneys in good faith, without knowledge of any purpose on his part to defraud the sureties, such sureties are liable for the deficiency in the funds of the year covered by the bond which results from such application of the moneys received. And where moneys are paid to the corporation by an officer with whom is an open account running back into a previous term, and he makes no application of the payment to a particular part of his debt, such payment goes to the extinguishment of the earliest items. Colerain v. Bell, 9 Metc. 499; Sandwich v. Fish, 2 Gray, 298; Gwynne v. Burnell, 6 Bing. (N. C.) 453; Atty.-Gen. of Jamaica v Manderson, 12 Jurist, 383. Opinion by SOULE, J.-Inhabs. of Egremont v. Benjamin.
PROOF OF MALICE-EMOTIONAL INSANITY-REASONABLE DOUBT.-Defendant was convicted of an assault with intent to murder his wife. Defense, temporary insanity. It is claimed the court below deprived him of the benefit of a reasonable doubt. The charge was in substance that the element of malice was the important one in the case, and must be made out not merely by a preponderance of evidence, but beyond a reasonable doubt. In regard to insanity the court charged that defendant would be blameless in law; first, if by reason of insanity he was not capable of knowing he was doing wrong, or second, if he had not power to resist the temptation to violate the law. Held, 1. That this was correctly charged. The law has no theories on the subject of insanity, and the term can not be so enlarged as to include persons who have not only knowledge of wrong, but also capacity to resist it. If a person voluntarily allows his passion to be indulged until it gets the temporary control over him, he is responsible for the condition into which he thus falls, as a man who becomes voluntarily intoxicated is liable for his drunken violence. Welch v. Ware, 32 Mich. 77. 2. That, taken in connection with what had before been charged of the necessity of proving malice beyond a reasonable doubt, an instruction holding in substance that the introduction of any evidence whatever by the defense upon the fact of temporary or emotional insanity, made it necessary for the prosecution to introduce affirmative proof to more than counterbalance it, could not mislead by qualifying the doctrine of reasonable doubt. The jury could scarcely entertain reasonable doubt in the case, if the testimony of insanity had been overcome in their minds by adequate proof, thus showing the falsity of the only ground of defense. The introduction of testimony of such insanity does not necessarily throw any burden on the prosecution. Only where the testimony creates a reasonable doubt is there any occasion to remove the doubt. Opinion by CAMPBELL, C. J.-People v. Finley.
The following "scene" occurred in Vice Chancellor Malins' court recently: Mr. Glasse having remarked on the inadequacy of the court to deal with the business. The Vice Chancellor: That is a very improper remark from you, as the leading counsel of the court, to make. Mr. Glasse: The public will judge. The Vice Chancellor: Your remarks are of an infamous description. I wonder you have the audacity to make them. Mr. Glasse: I, standing here, will not condescend to tell your lordship what I think of you.
TAX TITLE-ACT OF 1873.-A sale of land for taxes under the act of 1873, ch. 118, is invalid, unless the collector's report of sale shows that the land was offered for sale and struck off to "that bidder" who would pay the amount of taxes, penalties and costs for the least quantity of land, to be run off from the beginning corner, and running with at least one line of the tract. Without a report showing such facts, the circuit court has no jurisdiction to vest title to the property sold in the purchaser. Opinion by TURNEY, J.Bank of Kentucky v. Gay.
TAX TITLE-INTEREST ON INVESTMENT. - Where a tax title is declared void as above, the purchaser recovers from the owner six per cent. on the money invested, and not fifty per cent., as in cases of simple redemption within one year. Opinion by TURNEY, J.Bank of Kentucky v. Gay.
A PRACTICAL TREATISE ON THE LAW OF REPLEVIN in the United States, with an Appendix of forms and a Digest of Statutes. By PHINEAS PEMBERTON MORRIS. Third and Revised Edition. Philadelphia: Kay & Bro. 1878.
This is the third edition of the only distinct work on the Law of Replevin in this country. Replevin (from replegiare, to take back the pledge) is the remedy for the unlawful detention of personal property, by which the property is delivered to the claimant upon giving security to the sheriff to make out the injustice of the detention, or return the property. In the states of Georgia, Illinois, New Jersey and South Carolina the taking must be unlawful, and in Alabama, Connecticut, Georgia and Virginia the remedy is confined to distresses and attachments. "There is no part of the law," says the author in the preface to the first edition, which was published in 1849, "which has been more deviously improved in the United States than Replevin. From the cumbrous weapon, useful only in a narrow field to which Coke and Gilbert were accustomed, it has in more than one-half of the United States been fashioned into the ready instrument for the adjustment of all disputes in regard to the ownership of personal property. In some of the states, Pennsylvania, for instance, this improvement has been the result of time, operating upon early colonial customs, occasionally assisted by judicial legislation. In other states, indeed in most of the Northern and Western states, the law has been codified, and the improvements which experience suggested introduced; the framework of the action remaining unchanged." Since then these changes have been made in nearly all the states.
The volume gives a full review of the cases in which such an action lies, and an exhaustive explanation of the proceedings-writ, parties' pleadings, trial, judg ment and execution-both at common law and under the codes and statutes. The author likewise gives an account of the action De Homine Replegiando, which,
before the habeas corpus act, was the remedy for an illegal imprisonment, and which,though now of rare use in England, has been resorted to in this country within late years; (a case in Carthew's Reports, which is cited in this chapter, will remind the reader of the clown in the pantomime, who, whenever he essays to fish always manages to hook a blue devil which, after pursuing him over the stage for some time, ends the trouble by swallowing him. In this case the plaintiff's wife having left him, he sued out a writ of replevin for her recovery. But the sheriff returned his mother-in law); the proceedings on the replevin bond; the claim property bond and the writ of retorno habendo. The work also containes an appendix of forms and the English, Pennsylvania, Massachusetts and New York legislation on the subject. The cases referred to are not confined to the State of Pennsylvania.
The book is handsomely printed in large clear type on the best of paper. It contains over 400 pages, excluding the index. It will be of constant use to the practitioner.
AN INDEX TO THE REPORTS OF THE SUPREME COURT OF THE UNITED STATES. Embracing all the Reported Decisions of the Court from its organization to the present date. By WILLIAM J. MYER, of the St. Louis Bar. St. Louis: W. J. Gilbert. 1878.
This work supplies the profession with an index to the reports of the decisions of the Supreme Court of the United States, from the foundation of the government to the present time, embracing all reports to the fifth volume of Otto inclusive, which will be found of great service and value as a time and labor-saving production. Similar compilations have been made by the editor heretofore, for the States of Missouri, Iowa, Tennessee and Illinois, which have given great satisfaction to the profession in those states. These indexes, for ready reference, where the arrangement of titles and sub-titles are as carefully prepared as in the volume before us, are invaluable.
The method adopted by the editor is this: He takes a decision and extracts from it the legal doctrines, and refers to them in terse language, under as many distinct titles as a lawyer would be apt to look for a citation. For example, take the first case in the first of Otto's reports. The decision of the court is: "The judgment of the supreme court of a state reversing that of a court of common pleas, and remanding the cause for further proceedings according to law, is not final; nor can the judgment subsequently rendered by the inferior court be re-examined here." A lawyer wishing to find an authority for a case involving this question, would naturally look under the head of either of the following: Judgments, Jurisdiction, Supreme Court, State Court. In a digest he would probably find the citation from 1 Otto under one or two of these titles; in the index it can be found under all.
The book is well printed, and bound in two stylesone with flexible cover, and easily carried, and the other in regular law book shape and size, with a large margin for side notes and additions.
QUERIES AND ANSWERS.
[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them o edit this column. Queries will be numbered consecu
tively during the year, and correspondents are requested to bear this in mind when sending answers.]
51. PASSAGE OF LAWS-AMENDMENTS.-A certain section of a law passed in 1876 is twice amended by the egislature at the session of 1878. One amendment was approved by the Governor, February 20th, the other February 28th-both amended the same session, and were passed by the legislature before either was approved. The amendment approved February 28 was passed by the legislature before that approved February 20. Which amendment will prevail? Supposing both amendments were passed at the same time by the J. legislature, which will prevail?
53. CHARTER OF CORPORATION-VOTING BY PROXY -LOCAL AGENT.-The charter of an insurance association contains this section: "Every member shall be entitled to vote on all questions coming before the meeting of members, in person or by proxy. No one shall act as proxy who is not a member of the society; nor shall any officer or employee of the society solicit, hold or vote any proxy. Provided that the foregoing shall not apply to local agents, so far as pertains to the members of their respective agencies; nor shall local agents vote proxies of members not on their local lists." Now, suppose an officer of the society is appointed a "local agent," wonld he be disqualified by the terms of the above clause and proviso, to act Should as proxy for the members of his agency? the proviso be construed to exempt "local agents," pure and simple, from the general prohibition; or should it be construed to exempt all local agents from the disqualifications which attach to others by reason of being officers of the society, and so not apply to a H. local agent, who is also an officer.
[7 Cent. L. J. 80.]
Motion to set aside sale by execution, at which he was purchaser. Motion by executor, resisted by heirs. 1st. Sales by officers, at which they are directly or indirectly Interested, should be treated as void or valid by the court, at the option of the debtor. Freeman on Ex. §. 292, and note thereto, citing 3 N. H. 146. 2nd. Every motion to quash a sale is to be determined with reference to the circumstances attending thereto. If proceedings are regular and fair, and if no undue advantage has been taken of purchaser, and if the price is proportionate to value of property sold, then the sale can not be avoided. Freeman on Ex., § 308. KANSAS.
(6 Cent. L. J. 499.)
As there are many enquiries for a solution of this query, I will give the theory upon which I should act, if I had a suit involving the question: 1st. A, B, C and D go on an administrator's bond-viz. E's. 2nd. D sells E property and gets money belonging to the estate of which E is administrator. 3d. E, at that time has plenty of assets out of which to pay debts due from estate and subsequent thereto squanders them. 4th. A, B, C and D are sued for breach of bond on E's part, and pay the judgment. 5th. A, B and C bring action against D to recover from him the amount they paid. Can they maintain such action and how much ought the damages to be? 1st. In my judgment, the only figure the co-suretyship of D cuts, is to create a different rule in the measurement of damages, and so far as maintaining the action is concerned, it stands on the same basis as if D was a stranger to the bond; but on
the question of damages, as they each were liable for one-fourth of judgment, if they each paid a proportionate share of it they would each be entitled to recover the amount paid by them each respectively; provided it did not exceed the amount received by purchaser or receiver of funds of estate; but as D was both receiver and co-surety, A, B and C would (if entitled to recover), recover from D one-fourth each of the money received by D from E, provided said money was all necessary to be taken to pay said judgment. 2nd. As we do not consider the co-suretyship of D as affecting the legal status of action, we will now look to D's liability to account for moneys belonging to estate, which have come into his hands. 1st. We treat said query as conceding, or rather declaring that D knew out of what fund he obtained said money from E; as if he did not know it, he would be in same position as any other innocent receiver of money from an administrator. 2nd. We consider this a trust fund, and in the language of Judge Pierce, in 5 Cent. L. J. p. 78, conclusion 6, in summing up the rules by which jurists are guided in their enquiry after a trust fund: "The only obstacle to the recovery of the property, so far as third parties are concerned, will be a purchase of the trust estate for a valuable consideration, and without notice of the trust." If notice is brought home to a third party, he is liable to account for the fund or its proceeds to any one entitled to it, and the same rules are applied to him as to the trustee. KANSAS.
(7 Cent. L. J. 59.)
In Iowa, The mortal wound having been received by B in Missouri, and he having died of said wound in Iowa, the crime is triable in Iowa. See Com. v. Linton, 2 Va. Cases, 205; U. S. v. Gill, 1 Wash. C. C. 463; U. S. v. Armstrong, 2 Curtis, C. C. 446; State v. Cameron, 2 Chandler (Wis.) 172; State v. Demkley, Iredell (N. C.) 116; 4 Dallas, C. C. 426. The shooting and the wound which was its immediate consequence, could not of themselves constitute the offense of murder or manslaughter, had death not ensued. But the consequence of the wound was not confined to Missouri, but followed the deceased into Iowa, where they continued to operate until the crime was consummated in B's death. Brumly v. People, 2 Mich. 472; Tyler v. People, 8 Mich. 320, 334; People v. Tyler, 7 Mich. 161. See, also, Chitty Crim. Law, 117, 118; 1 East. P. C. 361; 13 Smede & M. 255; 3 Dutcher (N. Y.) 449; 9 Humph. (Tenn.) 646. G. E. S.
THE Solicitors' Journal hopes that a recent case in a London police court will dispel the mischievous popular notion that it is allowable under all circumstances to shoot at a person forcibly entering a dwelling-house at night. The idea may perhaps have had its origin in the old statute, 24 Hen. 8, c. 5, which provided that "whosoever shall be indicted for the death of such evil-disposed person or persons attempting * * burglary, [sic] to break mansion houses, as aforesaid, shall not forfeit any lands, tenements, goods, or chattels, but shall be thereof and for the same fully acquitted and discharged." But the law in those early times, as an ingenious writer has expressed it, respected "the infirmities and imbecilities of human nature where certain provocations are given" to a greater extent than it does at the present day. The statute of Hen. 8, was repealed by 9 Geo. 4, c. 31; and although it has been said to be only in affirmance of the common law, and Foster lays it down (C. C. 274) that in case
an attempt is made to commit burglary in the habitation, the owner or any part of his family, or even a lodger with him, may lawfully kill the assailants for preventing the mischief intended"; yet this statement must be taken in connection with what the learned author says on the previous page: "In the case of justifiable self-defense the injured party may repel force by force in defense of his person, habitation, or property against one who manifestly intendeth and endeavoureth bg violence or surprise to commit a known felony upon either." As Holroyd, J., said in Meade's case, (1 Lewin C. C. 184), "a man is not authorized to fire a pistol on every intrusion or invasion of his dwelling-house which may be made forcibly at night; he ought, if he has a reasonable opportunity, to endeavor to remove the trespasser without having recourse to the last extremity." At all events, in order to excuse or justify shooting at a burglar, there must be reasonable ground from his acts to believe that he intends to carry out his design by open force.
MR. DAVID DUDLEY FIELD, of New York, while a great lawyer, is still greater as a delegate. He has left for Europe to represent this country in that capacity, at the annual meetings of five organizations, which are to be held during the summer, viz: The Association for the Reform and Codification of the Law of Nations; The Institute of International Law; The British Association for the Promotion of Social Science; The Congress of the Friends of Peace. and The Congress to Promote Uniformity in Coinage, Weights and Measures.
-A College Directory, which should be of considerable use, has been issued by C. H. Evans & Co., of St. Louis. It contains over 100 pages. Forty law schools are noticed-The President having written a personal letter to Judge Nicholas Longworth, of Cincinnati, urging him to become a candidate for a seat in the next Congress, the latter has declined on account of already holding a seat upon the bench. The following extract from his reply is worthy of being preserved: "Though not devoid of all ambition, I do not think that one who holds a judicial office should mix in politics, or accept any honors or offices, even though offered without his asking. The constitution of our state provides that no Judge of the Supreme Court or Court of Common Pleas shall hold any other office of profit or trust under the authority of this state or of the United States;' and although it is plain that the state has no power, nor did it intend to render any person ineligible to Congress who is eligible under the supreme law of the land, yet I can not avoid the belief that the intention of the constitution is to remove from judges the chances of preferment and the hope of honors or reward. The man whose high duty it is to judge the people in matters involving property, liberty and life, should never be the servant or candidate of any party or faction. When he mounts the tribune he should put behind him pleasure, wealth, pride, and the hope of attaining anything beyond the approval of honest men and of his own conscience. It is possible that I interpret the spirit of the constitution incorrectly (and many wise and just men disagree with me), but I be lieve that I shall best fulfill my duty to my country by turning neither to the right nor to the left until I have completed and performed the high trust already committed to my hands."-"Guilty on suspicion" was the verdict rendered by an English jury in a criminal case last month.--Fifty-three is the number of public bills passed by the British Parliament during the session just prorogued. Judge Keogh, of the Irish Court of Queen's Bench, in a fit of insanity, attempted to kill his valet.-A French senator and jurist, M. Jacotine, having been detected cheating at cards, a committee has been appointed to enquire into his fitness to remain a judge.
The Central Law Journal. objected that, this money being lost at gaming,
SAINT LOUIS, AUGUST 30, 1878.
THE English Court of Appeal in Re Lister, 26 W. R. 806, decided on the 10th inst., held that money lent to pay a bet on a horse race already lost, was not "money knowingly lent or advanced for gaming," within the meaning of the statute as to gaming, (5 & 6 Wm. 4, c. 41, §1), and was consequently recoverabie at law by the lender. JESSEL, M. R., said: "There could be no answer to such a claim, unless the debt thus arising is made void by some statute. It is said that the act 5 and 6 Will. 4, ch. 41, has that effect. The question therefore, is whether the money thus lent
was knowingly lent or advanced for gaming or betting.' In my opinion, it was not. When you look at the act, it is clear that what it means is money lent to carry out the illegal purpose of gaming or betting. If a number of men are round a gaming table, and one of them asks another to lend him money to game with, and he lends the money, that is moneylent for gaming' within the meaning of the act. And so, also, if money is lent to a man to enable him to make a bet, that is money 'lent for betting.' That this is what the act reaily contemplates, is shown by the words which immediately follow, 'lent or advanced at the time and place of such play to any person or persons so gaming or betting.' The object of the act was to prevent gaming or betting from taking place, to deter people from committing the illegal act. But, in the present case, the mischief had been completed-the illegal act had been carried out before the money was lent. The money was advanced to enable the borrower to pay the bets which he had already made and lost, which seems to me an entirely different thing from a loan of money to enable a man to make a bet. In the case of Alcinbrook v. Hall, 2 Wils. 309, which was an action upon an assumpsit for money paid by the plaintiff for the defend ant at his instance and request, the defendant having lost a sum of money above £10, upon a bet at a horse race, requested the plaintiff to pay it for him, which he did. The defendant Vol. 7-No. 9.
and recoverable back again by the statute, 9 Anne, ch. 14, this action would not lie. the court held that this was not a case within the statute, for there is not the word contract, as in the statute of usury. Stra. 1249. So the court here held this was not a case within the statute 9 Anne, and gave judgment for the plaintiff.' That was certainly a very strict construction of the act, but it must be remembered that it is a penal act. That case is directly in point, and I can see no reason why we should attempt to overrule it."
THE liability of a master for acts done by his servant outside the scope of his employment was considered by the Supreme Court of Pennsylvania, in the late case of Towanda Coal Co. v. Heeman, 35 Leg. Int. 333. The plaintiff, a boy, having jumped on one of the coal cars of the defendant while it was in motion, the brakeman on the car, in order to drive him away, threw a piece of coal at him, which, striking him in the face, caused him to let go and drop under the moving car, whereby he was injured. The evidence showed that it was no part of the duty of a brakeman to interfere with passengers or others upon the car; his duty was simply to attend to the brakes and the general handling of the train. The court held that the company was not liable for his acts in the case before it. It was said by Maule, J., in Mitchell v. Crassweller, 13 C. B. 237, that a master is liable for the act of his servant,
even though the servant, in the performance of his duty, is guilty of a deviation or a failure to perform it in the strictest and most convenient manner. But where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master can not be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it." Thus, in the leading case of McKenzie v. McLeod, 10 Bing. 385, the master was held not to be liable for the negligence of a servant who burned a house down in trying to cleanse a chimney, it being shown that the servant's duty was not to cleanse the chimney, but to light the fire. The legal rule was stated in the opinion of Alderson, J., in that case to be that the act of the servant, is
the act of the master, where the duty is defined by precise orders, and where something is directed to be done, and the manner of doing it is left wholly to the discretion of the servant, the judgment exercised may be considered the judgment of the master, and he must be answerable. "But," it was said, "where he has neither ordered the thing to be done, nor allowed the servant any discretion as to the mode of doing it, I can not see how in common justice or common sense the master can be held responsible." Where coachman, after having used his master's horse and carriage, in going upon an errand for his master, instead of taking them to the stable, used them in going upon an errand of his own, without his master's knowledge or consent, and, while doing so, negligently ran into and injured the plaintiff's horse, it was ruled that the master was not liable; Sheridan v. Charlick, 4 Daly, 438. The same rule has been applied in Williams v. Jones, 3 Hurls. & Colt. 256; in Story v. Ashton, L. R. 4 Q. B. 476, in P. G. & N. R. R. Co. v. Wilt, 4. Whart. 143; in Snodgrass v. Bradley, 2 Grant, 43, and in Flowers v. Pennsylvania Railroad Co., 19 P. F. S. 210.
FROM the advance sheets of Abbott's Law Dictionary now in press and to be issued in October, by Messrs. Little, Brown & Co., of Boston, we present the following definition of "assault" as a specimen of the author's work:
Assault is any willful and unlawful attempt or offer, with force, to do a corporal injury to another. In explanation of the definition, it is to be observed: 1. That the attempt or offer must be willful. An accidental or unintended demonstration of violence is not an assault. Some of the decisions, indeed, take the position, unqualifiedly, that to constitute. assault the threatening acts must be animated by a purpose to hurt; and, if this purpose is disproved, there is no assault. But other cases seem to warrant a broader definition, and to sustain the view that acts willfully committed, which evince a purpose to do a personal injury, and which would do an injury if completed, or if not intercepted, may constitute an assault, notwithstanding the perpetrator did not intend to pursue them to the point of actual injury. Where unequivocal purpose of violence is accompanied by an act
which, if not stopped or diverted, will be followed by personal injury, it is an assault. State v. Malcolm, 8 Iowa 413. And unless the latter view can be conceded to some extent, the cases holding that the aiming of fire-arms which the accused knew, but the complainant did not know, were not loaded, is an assault, cannot be sustained. Of the three following definitions, it will be seen that the first makes an actual intent to hurt, in the breast of the assailant, an essential element; while the other two are satisfied by acts which evince such intent, coupled with ability:
An assault is an offer or an attempt to do a corporal Injury to another; as by striking at him with the hand, or with a stick, or by shaking the fist at him, or presenting a gun or other weapon within such distance as that a hurt might be given, or drawing a sword and brandishing it in a menacing manner; providing the act is done with intent to do some corporal hurt. United States v. Hand. 2 Wash. C. Ct. 435. An assault is an attempt, with force or violence, to do a corporal injury to another, and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person. Hays v. People, 1 Hill 351. An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect Tarver v. State, 43 Ala. 354.
2. We include the word unlawful in the definition, believing it to be a proper element; that is an offer or use of force, in the exercise of one's rights, or the performance of one's duty, is not properly an assault. It may, indeed, be urged that the act is an assault, but is justified by the right or duty; and the distinction is, of course, purely verbal. But the proper use of the term seems to be to confine it to unlawful conduct. Bouvier gives unlawful as a part of the meaning; so does Finch (Law 202); and it was held in United States v. Lunt, Sprague 311; 8 Mo. L. Rep. N. s. 622, that, in an indictment for an assault with a dangerous weapon, the word assault carries with it an allegation of illegality. But many of the definitions given omit unlawfully; the three quoted above, and those by Blackstone and Hawkins, for example; also the following:
Assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him with or without a weapon. But no words whatsoever, be they ever so provoking, can amount to an assault. Jacobs; Wharton:
3. Assault, as popularly used. includes violence; but, as a law term, it is limited to the