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examining it, is not such a carrying as is punishable under the act of 1870, ch. 13, § 1. Thomps. & S. Rev. Code, § 4759b. "To constitute the carrying criminal, the intent with which it is carried must be that of going armed, or being armed, or wearing it for the purpose of being armed." Acc. Page v. State, 3 Heisk. 198. Opinion by DEADERICK, C. J.-Cameron v. State. ARREST-RESISTANCE TRESPASS WITNESS PARTICEPS CRIMINIS - DYING DECLARATIONS.-I. A mittimus issued by the clerk of a court improperly and in violation of the law, and directing the sheriff to arrest and imprison the party named, will not justify the officer in attempting to make such arrest; and the resistance of the party by killing the officer does not amount to murder. The officer must at his peril see that he has valid process in his hands to authorize an arrest. 2. A party jointly indicted for the same offense, but who has obtained a severance and is not put on joint trial, is a competent witness for the defendant 3. The dying declarations of a witness to a homicide are not admissible in evidence. Only such are admissible as are made by him for whose homicide the prisoner is on trial. Acc. Hudson v. State, 3 Cold. 359. Opinion by FREEMAN, J.-Poteele v. State.
PRACTICE-NEW TRIAL-APPEAL.-Under secs. 3154 and 3157 of the code, authorizing the granting of new trials in certain cases upon proceedings commenced within one year from the time the judgment is rendered, the limitation of one year runs from the date of the judgment of the court wherein the new trial is sought and not from the judgment of the supreme court on appeal. By an appeal, a party waives his right to claim a new trial. Opinion by BECK, J.-Gray v. Coan.
SCHOOL DISTRICT-POWER TO BORROW MONEY.While a district township has no express power conferred upon it by statute to borrow money, yet an order issued by the board of directors for money borrowed to pay indebtedness contracted by them in building a school house is valid and binding upon the district, even though the cost of the building exceeded the amount authorized by the vote of the district. Beck and Day, J.J., dissenting. Opinion by ADAMS, J.Austin v. District Township of Colony.
RAILROADS-PERSONAL INJURY- DAMAGE TO EsTATE EVIDENCE.-In an action to recover of a railroad company the loss sustained by the estate of a decedent by reason of his death from a personal injury, the plaintiff introduced the life tables and evidence showing the earnings of deceased at the time of his death; thereupon the defendant offered to prove in reduction of damages the average cost of living at the time and place of decedent's death for a man of his age and condition in life: Held, that the evidence was properly refused. Opinion by ADAMS, J,-Simonson v. C., R. I. & P. R. R. Co.
anything, about trying to show off before the bridge hands?" Held, that an objection to the question as leading was erroneously sustained. 3. Where the plaintiff, a section hand, was injured, after his hours of work for the day, and while off his section performing a service for the foreman personally: Held, that the railroad company would not be liable, unless the plaintiff had reason to believe from its conduct that the foreman had authority to engage him in such employment. Opinion by DAY, J.-Hurst v. C., R. I. & P. R. R. Co.
JOINT JUDGMent DebtorS-PAYMENT BY ONERECOGNIZANCE. — Payment of a judgment by one of joirt debtors will operate as a discharge as to all. Holmes v. Day, 108 Mass. 563. And such payment excuses another of the debtors from a strict compliance with the terms of his recognizance, which stipulates for his ap pearance for examination touching his estate before magistrate, and his failure to appear would not be a breach thereof. Opinion by MORTON, J.-Nat. Security Bank v. Hunnewell.
PROMISE TO PAY "WHEN ABLE"-EVIDENCE.-No action can be maintained upon a defendant's promise to pay when he should be able without proof of such ability. Tanner v. Smart, 6 B. & C. 603; Gould v. Shirley, 2 Mo. & Payne, 581; Hart v. Pendergast, 14 M. & W. 740; Tompkins v. Brown, 1 Den. 247. And transcripts from the tax-books of a town are incompetent to prove the value of the defendant's property for any other purpose than the assessment and collection of the tax. Com. v. Heffron, 102 Mass. 148, 154. Opin. ion by GRAY, C. J. --Randige v. v. Lyman.
COMMON CARRIER-AGREEMENT-BREACH--DAMAGES.-1. An agreement by which a common carrier undertakes to transport goods from certain stations to another, at a certain rate of freight, for a period of twelve months, is a continuing offer on the part of the carrier to transport such goods as the other party should furnish at the specified points during the period named, and is binding on the carrier whenever, during that time, the other party tenders goods for transportation, according to its terms; and failure to transport goods so tendered is a breach of the contract. Bornstein v. Lans, 104 Mass. 215. 2. The damages for which a carrier is liable upon failure to perform his contract, are those which result from the natural and ordinary consequences contemplated at the time of the making of the contract; and a larger liability can be imposed on him only when it is in the contemplation of the parties that the carrier is to respond in case of a breach for special and exceptional damages. Opinion by ENDICOTT, J.-Harvey v. Conn. & Pass. R. R. Co.
INTOXICATING "LIQUORS”-SALES TO MINORS — DEGREE OF PROOF IN QUASI CRIMINAL PROCEEDINGS.— 1. In actions brought under the statutes of 1875, ch. 99, § 15, providing that "whoever by himself, or his agent, or servant, shall sell or give intoxicating liquors to any minor, or allows a minor to loiter upon the premises where such sales shall be made, shall for
feit," etc. Knowledge or guilty intent is not an element of the defendant's liability. See Com. v. Emmons, 98 Mass. 6. Evidence, therefore, that the agent who made the sale did not know that the purchaser was a minor, and that the defendant had instructed him not to sell to minors, is immaterial. 2. The rule of evidence requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings. In proceedings under the statute for the maintenance of bastard children, proceedings to obtain a divorce for adultery, actions for assaults, actions for "criminal conversation," or for seduction, or other actions brought for the determination of civil rights, the general rule of preponderance of evidence prevails. Richardson v. Burleigh, 3 Allen, 479; Young v. Makepeace, 103 Mass. 50. And the same rules applies in the case at bar. Opinion by MORTON, J.-Roberge v. Burnham.
ALTERATION OF NEGOTIABLE PAPER.-A promissory note given January 10, 1869. payable on or before October 15, 1870, with interest at the rate of ten per cent., was altered by adding thereto the word "annually." Held, that the proper construction of the note as thus changed was as though it had been made to read ten per cent. per annum; so that the alteration did not increase the maker's liability, and was therefore not material. Opinion by MARSTON, J.- Leonard v. Phillips.
CORPORATION STOCKHOLDERS INDIVIDUAL LIABILITY-DEFINITION OF “LABOR."-Held, that the exceptional liability provided by the constitution and statutes against corporation stockholders for "labor performed for such corporation," does not include the service performed for a railroad by its assistant chief engineer. His position is not that of a laborer nor is his work labor in the popular sense; it is mostly direction and scientific work, involving much more superintendence than personal exertion in manual labor. Opinion by CAMPBELL, C. J.-Brockway v. Innes.
NATURE OF PROBATE PROCEEDINGS-APPEAL NOT SEVERABLE. From the allowance and probate of a will in the probate court appeals were taken severally, so as to facilitate a removal, as to the non-resident contestants, into the United States court. Held, on application for a mandamus to compel the circuit court to rescind its order consolidating the appeals, that since probate proceedings are statutory prerogative proceedings to determine the status of a deceased man's estate, and in no sense to be regarded as contentious litigation inter partes, the probate of every will, whether in the original or appellate court, must always be single and complete in one hearing. No matter how many appeal, they can raise only one issue, that of testacy or intestacy, and there can be but one trial of that issue. Allison v. Smith, 16 Mich, 405. Opinion by CAMPBELL, C. J.-People v. Wayne. FIXTURES RENEWAL OF LEASE- RIGHTS OF MORTGAGEE.-On a foreclosure bill, buildings erected by tenants were claimed as subject to a mortgage given by the landlord upon the premises. Held, that a tenant who, instead of surrendering possession, takes a renewal of his lease, does not lose his right to th
fixtures by not having removed them during the first term. Davis v. Moss, 38 Penn. St. 346, approved; Fitzherbert v. Shaw, 1 H. Bl. 248; Lyde v- Russell, 1 B. & Ad. 394; Thrasher v. East London, 2 B. & C. 608; Shepard v. Spaulding, 4 Met. 416, distinguished. Merritt v. Judd, 14 Cal. 59; Loughran v. Ross, 45 N. Y. 292, disapproved. The second lease ought not to be held as including the building, unless from the lease itself an understanding to that effect is plainly inferrable. Opinion by COOLEY, J.-Kerr v. Kingsbury.
CIRCUIT COURT COMMISSIONERS-HABEAS CORPUS FOR DISCHARGE OF CONVICT-MISNOMER OF PRISON. -Held, 1. That a circuit court commissioner has no jurisdiction to hear applications for discharge of prisoners held under the order, sentence or process of courts of any grade. The determination whether the judicial function has been properly exercised in any case is necessarily the exercise of judicial power, and therefore jurisdiction in respect to it can not be conferred on an officer elected merely for ministerial and chamber duties. Constitution of Mich., Art. 6, §§ 16 and 1; Waldley v. Callendar, 8 Mich. 430; Case v. Dean, 16 Mich. 12; Rowe v. Rowe, 28 Mich. 453. 2, That no mere misnomer of the prison in the sentence is reason for discharge when it is sufficiently designated to prevent a mistake, Opinion by COOLEY, J.-In re Burger.
QUERIES AND ANSWERS.
DEED-MISTAKE-DAMAGE - REMEDY.-1. A sells B lot 20. In making the deed A makes a mistake and makes B a deed to lot 26. B takes possession of lot, 20. B sells to C, not knowing the error, and takes a mortgage back on 26, to secure him for unpaid purchase money. C sells to D, D to F; F discovers that he has possession of lot 20, but has a deed to 26. F sells to G, and makes his deed for lot 20, being the correct description. G sells to H, H sells to I. C failing to pay the mortgage, B brings a suit to foreclose, asking to have the mortgage reformed. Upon trial in the circuit court it is decided that I had no notice of the mortgage of B upon his lot 20, and, as an innocent purchaser, he holds the same against C's claim. 2. Through the mistake of A in drawing his deed, B relying upon his deed as correct, the land lying in a distant county, fell into the same error when he sold to C. Is A liable to B for the loss suffered in consequence of the mistake? If not, what remedy has B? J.
55. CAN A PAROL CONTRACT BETWEEN PRINCIPAL AND AGENT, whereby the agent is to sell lands and sign principal's name, as agent of principal, be enforced in equity, and can evidence of third parties, who heard principal and agent separately ratify said parol contract, be introduced? No writing of any kind in regard to the parol contract. E.
(6 Cent. L. J. 499.)
This query is defective in statement. It does not appear whether D, at the time he sold and conveyed land to the administrator (E), had notice that the money he received therefor belonged to the estate. If he knew that the administrator was trading with the estate funds, he can not claim to be a bona fide purchaser of the money received for the land, and the cestui que trust creditors or distributees, could elect to follow the money, or take the land. See case in 11 Wall. 217. If they made no such election, so as to
make the land assets of the estate, the other sureties of the administrator, after having paid the creditors, certainly would be entitled to make D refund, for the common benefit of all the sureties, the money received from the administrator belonging to the estate. No principle can be clearer than that the use of the money by the administrator, in the purchase of the land, was outside of his duty and beyond his authority, and that, consequently, the act was a conversion to his own use of trust funds, and a fraud upon all persons interested in the due administration of the estate. And it is clear that D, having had notice of the improper use, becomes a trustee in invitum. The sureties by satisfying all defaults of the administrator to creditors and distributees, becomes the equitable assignees of all claims of such creditors and distributees against the administrator. And this subrogation gives them the undoubted right to hold one of their number to account for participation in the devastavit. 1 Brightley's Fed. Dig. 820; 13 Wall. 368. It is plain that if D parted with his land for money which he had no reason to believe did not belong to E, he is an innocent purchaser for value, and can in no contingency be made to refund it. W. A. G.
HENRY ARMITT BROWN, the prominent young lawyer and orator of Philadelphia, died in that city on the 21st inst. He was a member of the Cobden Club, of London, England.The Supreme Court of Mexico has decided, reversing the ruling of an inferior tribunal, that the laws of Mexico will permit the delivery up of fugitives from justice upon the demand of any of our states.-The Irish Law Times is of opinion that "among the most serviceable transatlantic text books, Mr. Bishop's work on Contracts should be accorded a conspicuous place."-Mr. Justice Mellor, of the English High Court of Justice, is about to retire. He was appointed to the bench in 1861-Judge Keogh, the Irish judge who, while insane, attempted to kill his servant the other day, is the judge who tried the celebrated election case at Galway, in 1872, by which the priests' candidate was unseated on the ground of intimidation-the priests having threatened to excommunicate all who should vote against their candidate and forty-two priests and two bishops were suspended from the exercise of the franchise for seven years. The indignation thus stirred up against Judge Keogh, who is a Roman Catholic, was most intense. When he returned to his home in Dublin, he had constantly shadowing him several prominent detectives, as it was expected that he would be assassinated. Cardinal Cullen was reported to have denounced him from the altar. When Judge Keogh again traveled on circuit, a train preceded the one on which he was by ten minutes. It carried a company of military who cleared each depot, and no one was admitted to the platforms but responsible officials. The train on which the judge traveled also carried a guard of soldiers, constabulary and detectives, Perhaps the intense strain to which he has been subjected has had much to do with his reported insanity.
The organzation of a National Bar Association, which took place at Saratoga last week, is an event of no small importance. The call to meet at Saratoga, was in pursuance of a resolution adopted by the jurisprudence department of the American Social Science Congress at its last session, and the invitations which were sent brought together over two hundred of the leading lawyers of the different states. B. H. Bristow, of Kentucky, was elected chairman, and Francis Rawle, of Philadelphia, and Isaac Grant Thompson,
editor of the Albany Law Journal, secretaries. A constitution was reported and adopted, among whose provisions are the following:
The association shall be known as "The American Bar Association;" its object shall be to advance the science of jurisprudence, promote the administration of justice, and the uniformity of legislation throughout the Union, uphold the power of the profession of law, and encourage cordial intercourse among the members of the American bar. Annual dues $5.00. Any person shall be eligible to membership who shall be and shall for five years have been a member in good standing of the bar of any state. The following officers shall be elected at each annual meeting, for the year ensuing; a president, (the same person shall not be elected president two years in succession); one vicepresident from each state; a secretary and treasurer; a council consisting of one member from each state (the council shall be a standing committee on nominations for office); an executive committee, to be composed of the secretary and treasurer, together with three members of the council, to be chosen by the associa tion. The following committees shall be annually ap pointed by the president for a year, and shall consist of five members each: on jurisprudence and law reform; on judicial administration and remedial procedure; on legal education and admission to the bar; on commercial law; on international law; on publi cation and on grievances. A majority of members of any committee, including council, who may be present at any meeting of the association, shall constitute a quorum of such committee for the purposes of the meeting. The vice-president for each state, and not less than two other members from such state, shall constitute a local council for such state, to which shall be referred all applications for membership from such state. The vice-president shall be ex-officio chairman of such council. The president shall open each annual meeting of the association with an address, in which he shall communicate the most noteworthy changes in statute law on points of general interest, made in the several states and by Congress during the preceding year. It shall be the duty of the members of the general council from each state to report to the president, on or before the first day of May, annually, any such legislation in their states. The association shall meet annually in the month of July or August, at such time and place as the executive committee shall select, and those present at such meeting shall constitute a quorum. The word "state" shall be deemed to be equivalent to State, Territory, and the District of Columbia.
The following permanent officers were elected: President James O. Broadhead, St. Louis, Missouri. Vice-Presidents — Arkansas, Geo. A. Gallagher; Connecticut, Origen S. Seymour; Delaware, Anthony Higgins; District of Columbia, H. H. Wells; Florida, Chas. W. Jones; Georgia, A. R. Lawton; Illinois, David Davis; Indiana, Thomas F. Davidson; Iowa, W. G. Hammond; Kentucky, Benjamin H. Bristow; Louisiana, Thomas J. Semmes; Maryland, Richard J. Gittings; Maine, A. A. Strout; Massachusetts, Wm. Gaston; Michigan, Thomas M. Cooley; Mississippi, Jas. T. Harrison; Missouri, Henry Hitchcock: Nebraska, George K. Amory; New Hampshire, C. W. Stanley; New Jersey, A. Q. Keasbey; New York, Clarkson N. Potter; Ohio, Rufus King; Pennsylvania, George M. Biddle; Rhode Island, C. C. Van Zant; South Carolina, H. E. Young; Tennessee, Wm. F. Cooper; Vermont, Edward J. Phelps; Virginia, J. Randolph Tucker; West Virginia, John A. Hutchinson.
Secretary-Edward Otis Hinkley, Baltimore.
A local council for each state was also elected. That for Missouri is composed of John B. Henderson and Albert Todd, of this city.
The Central Law Journal. plaintiff was engaged in labor does it there
SAINT LOUIS, SEPTEMBER 6, 1878.
THE Supreme Court of the United States during its last term, in the case of Brine v. Hartford Ins. Co., rendered a decision of considerable importance as to the effect in proceedings in the Federal courts of state statute, regulating the transfer and mortgage of real estate. The court held: 1. The laws of the state in which land is situated control exclusively its descent, alienation and transfer from one person to another, and the effect and construction of instruments intended to convey it. All such laws in existence when a contract in regard to real estate is made, including the contract of mortgage, enter into and become a part of such contract. 2. A state statute, therefore, which allows to the mortgagor twelve months to redeem after a sale under a decree of foreclosure, and to a judgment creditor of his three months after that, governs to that extent the mode of transferring the title and confers a substantial right, and thereby becomes a rule of property. This right of redemption after sale is, therefore, obligatory on the Federal courts, sitting in equity, as on the state courts, and the rules of practice of such courts must be made to conform to the law of the state, so far as may be necessary to give substantial effect to the right. See Olcott v. Bynam, 17 Wall 58; Ex parte McNeil, 13 Wall. 243; United States v. Crosby, 7 Cranch., 115; Clark v. Graham, 9 Wheat. 177; McGoon v. Scales, 9 Wall 27.
IN Schmid v. Humphrey, 2 West. Jur. 475, decided by the Supreme Court of Iowa at its last term, an action was brought to recover damages for injuries received by plaintiff while traveling on a highway, by reason of defendant's dogs frightening his horse. The defense was that the plaintiff, at the time of the injury, was engaged in labor on the Sabbath contrary to the statute law of the state. The court held that this did not bar a recovery. SERVERS, J., said: "Conceding the Vol. 7-No. 10.
fore follow he cannot recover? He is not seeking to enforce any contract which is prohibited by law; nor is he seeking to enforce any right obtained by the breach of any law. Suppose it be said the plaintiff was doing something prohibited by law, but which in no manner concerned the defendant, or disturbed him in any of his rights or privileges, will it do in such case to say that the plaintiff is no longer under the protection of the law, and that the defendant may with impunity, by the use of positive force or through negligence do him an injury, and that no civil liability is incurred thereby? Can the defendant be permitted to set up as a defense the fact that the plaintiff was doing something prohibited by law which did not in fact directly contribute to the injury? We think not." been held that a trespasser may recover damages from one who sets spring guns on his premises in a negligent manner, whereby the trespasser is injured. Bird v. Holbrook, 4 Burg. 624; Hooker v. Miller, 37 Iowa 613. And so may one who while trespassing on the lands of another is bitten by dogs. Loomis v. Terry, 17 Wend. 496. In Massachusetts, New York, and other states traveling on the Sabbath is expressly prohibited, and in the former state it has been held that a person who travels on business or for pleasure cannot recover of a street railway company for injuries received in consequence of negligence of the company while so traveling in their cars. Stanton v. Metropolitan R. R. Co., 14 Allen 485. The contrary doctrine is held in New York. Carroll v. Staten Island R. R.. 59 N. Y. 126. In the former state it was held in Gregg v. Wyman, 4 Cush. 322, that the " owner of a horse who lets it, on the Lord's day, to be driven for pleasure to a particular place, could not maintain an action of tort against the hirer for driving it to a difference place, and in so doing injuring it." This doctrine is repudiated in Woodman v. Hubbard, 25 N. H. (5 Foster), 67; and Mor
ton v. Gloster, 46 Maine 420; and it has been abandoned in Massachusetts, and Gregg v. Wyman expressly overruled in Hall v. Corcoran, 107 Mass. 251. 107 Mass. 251. Bosworth Swansey, 10 Met. 363, and other cases in that state which hold that towns are not liable for injuries caused to one who is traveling on the
Sabbath, by reason of a defective highway, are much modified by Hall v. Corcoran. See also Bigelow v. Reed, 51 Maine 325; Baker v. City of Portland, 58 Ib. 199; Moheny v. Cook, 26 Pa. St. 342; Sutton v. Wauwatosa, 29 Wis. 21; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172; Phil., Wil. & Balt R. R. v. Phil. Tow Boat Co., 23 How. 209. See also 6 Cent. L. J.. 401.
IN a recent Pennsylvania case, Justice v. Nesquehoning Valley Railroad Co., 18 Alb. L. J. 171, a railroad company, authorized by its charter to appropriate lands under the power of eminent domain, entered upon lands without objection from the owner, but without taking the proper proceedings to acquire the lands, and laid its ties and rails. Upon subsequent proceedings being taken to acquire the land it was held that, although the company was a trespasser, yet the ties and rails
did not enure to the owner of the land so as to entitle him to claim allowance for their value. The common law rule is that a trespasser who builds on another's land dedicates his structures to the owner. The reason is that having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is, to a modified extent, affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. AGNEW, C. J., who delivered the opinion of the court in the case at bar distinguished it from these, saying: "This is not a case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the land taken for a public use-materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to-wit, to make compensation or give security for it. For this injury the citi
zen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him? In the case of a common trespasser the owner of the land may take and keep his structures nolens volens; but not so in this case, for though the original entry was a trespass, it is well settled that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid theron. Harrisburg v. Crangle, 3 W. & S. 464; McClinton v. Railroad Co., 16 P. F. Smith 409; Railroad Co. v. Burton, 11 id. 379. And in Harvey v. Thomas, 10 Watts 63, it was held that the subsequent proceeding to assess compensation was a protection against a recovery of vindictive damages." See also Meigs' Appeal, 12 P. F. Smith 28. There are some analogies bearing remotely on this question and showing that property is not gained by the owner of land because found upon it. Thus in case of property carried off by a flood and stranded on the premises of another, the owner may follow it, enter and take it, or if the owner of the land convert it, may recover its value. Foster v. Bindle Co., 4 Harris, 393; Ellis v. Edwards, 4 Watts 63. And even a sale will not carry unknown secreted valuables. Hutchison v. Harris, 2 Wright 491.
REFORMATION OF THE DEED OF A MARRIED WOMAN.
In Shroyer v. Nickell, 55 Mo. 264, where a hnsband and wife, jointly seized of land, made a conveyance duly acknowledged, whereby they intended to convey that land to a certain person, but failed to do so, because the land was incorrectly described, it was held that equity could not reform the deed in the particular referred to.
This ruling was placed in substance upon the grounds: That the reforming power of a court of equity could only be exercised where there was a valid contract whereon such power