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EQUITY CREDITOR SEEKING SUBROGATION RIGHT OF SECURITIES GIVEN BY DEBTOR TO INDEMNIFY DEBTOR'S SURETIES, TAKES SECURITIES AS HE FINDS THEM WHEN HE APPLIES ΤΟ BE SUBROGATED.-The question upon which this case turned, was, whether creditor must not intend to take secureties, which the sureties of his debtor had originally taken to indemnify themselves, in the condition in which he finds them when he applies to be subrogated to rights of sureties. Creditor's equity is derived through the sureties and not independently of them, and he occupies no other position than they do; and if they have, in good faith, released, discharged or impaired the value of such securities, before he has taken any steps to subject them to his claim, the creditor can not justly complain. The sureties, it is true, can not alter or impair his right, and, if the securities are originally taken, not only to indemnify sureties, but also to secure creditor, any action of their's would be powerless to affect him. But if the security is merely to indemnify sureties, and creditor desires subrogation, it is clearly equitable that he should take them just as sureties themselves bold them. Rankin v. Wilsey, 17 Iowa, 464. Affirmed. Opinion by NAPTON, J.— Logan v. Mitchel.
DAMAGES SELLING LIQUOR TO MINOR - ACTION BY PARENT AGAINST DRAMSHOP KEEPER-NOT REQUIRED TO STATE KIND of Liquor, NOR TO GIVE BOND AS A COMMON INFORMER.-This was an action by father against a dramshop keeper for selling intoxicating liquor to his son, and originated before a justice of the peace. The petition states that "defendant at, &c., on, &c., being then and there a duly licensed dramshop keeper, did sell and give to Charles A., plaintiff's minor son, intoxicating liquor, and suffer the same to be done about his premises, without permission of the parents of said minor first obtained. Whereupon plaintiff prays judgment against defendant, for $50, under provisions of section 20 of chapter 48 of the Revised Statutes." Judgment for plaintiff, from which defendant appeals, and in circuit court moved to dismiss action because it was a suit on a penal statute by which the penalty was given to informer, and plaintiff had not given bond as required by Sec. 1, Art. 1, Ch. 38, Wag. Stat. Motion overruled. At trial, defendant objected to introduction of evidence on behalf of plaintiff, on ground that petition was defective in not stating kind of liquor sold or given to minor. Overruled and verdict and judgment for plaintiff. Held, (1.) It is undoubtedly necessary to state the facts which show that the statute has been violated, but sale to minor of intoxicating liquors, whatever may have been the particular kind of liquor, is declared by the statute to be sufficient to authorize parent to recover. The definition of "intoxicating liquors " is given in the law, and it is a matter of evidence whether plaintiff established charge of sale of such liquor to his minor son. (2.) This is not a qui tam
action, nor is it an action on penal statute, where the penalty is given to the informer, so as to require bond. to be filed under Sec. 1 of Art. 34, of Wag. Stat. p. 341-2. It is merely a suit for damages, considered by the legislature to be a sufficient compensation to party aggrieved. Plaintiff is not an informer, within the meaning of that term. No such right as is here asserted was given by the act to any one who might think proper to present or prosecute what was known to the common law as an information. This action is for damages, sustained by plaintiff, liquidated by statute, and could be maintained by no common informer. Plaintiff is responsible for costs as in an ordinary civil action. Affirmed. Opinion by NAPTON, J.-Edwards v. Brown.
INDICTMENT — SUFFICIENCY OF, FOR ASSAULT WITH DEADLY WEAPON-INTENT TO KILL NEED NOT BE ALLEGED.-The question in this case was the sufficiency of the indictment upon which defendant was tried and convicted. It is based on 33d Sec. of Art. 2, of Act Concerning Crimes and Punishments, 1st Wag. Stat. p. 450. It charges that defendant on, &c., at., &c., " willfully and feloniously did commit an assault in and upon the person of one C, in the peace of the state then and there being, and that he, the said defendant, a certain pistol, the same being a deadly weapon, then and there in his right hand had and held, which said pistol was then and there loaded with gunpowder and divers leaden bullets, did willfully and feloniously point at and upon him, the said C, whereby his life was endangered, and under circumstances which would have constituted murder or manslaughter if death had ensued, &c." Rejecting the last clause, "under circumstances, &c.," as surplusage, the allegations of assault with loaded pistol, so as to endanger the life of the person assaulted, are sufficiently specific under the statute. If one's life is endangered by an act of another, which act is willful and apparently felonious, it is immaterial what the purpose of the assaulting party be. To present a loaded pistol cocked, to the breast of another, accompanied with threats, as was proved in this case, is an act which certainly endangers life, whether the purpose be to kill, wound or scare, and it is unnecessary to allege an intent to kill. Jennings v. State, 9 Mo. 863. The facts alleged show that if the pistol had exploded and death been the result, the case would have been murder or manslaughter. Affirmed. Opinion by NAPTON, J.-State v. Hays.
JURISDICTION OF FEDERAL COURTS IN TRADE-MARK CASES.
To the Editor of the Central Law Journal:
I note in your last issue a conclusive argument to show (what I thought required no argument) that the trade-mark law of Congress cannot rest on the copyright clause of the constitution, upon which, however, U. S. District Judge Swing has based it in Duwell v. Bohmer, 10 Ch. L. N., 356.
Several years ago I had some correspondence with the trade-mark officials at Washington, in which I scouted the idea that the copyright clause justified the law, and they disclaimed this as a basis for it, and claimed that it rested upon the power of Congress to regulate commerce among the several states."
Where the trade of the owner of the mark embraces more than one state, there may be some color of constitutionality in the law as applicable to his mark. In Gibbons v. Ogden, 9 Wheat. 194-5, Ch. J. Marshall admitted that "among" must be restricted to involve
more states than one, and that the power to regulate commerce" among the several states " does not apply to the "exclusively internal commerce of a state." Therefore the trade-mark of a small dealer, whose trade is clearly entirely local, would seem to lie outside of the power of Congress. An ingenious lawyer would have to work out Mr. Webster's phrase in the above case, that the commerce of the country is a "unit," in order plausibly to justify the trade-mark law under the clause giving power to regulate commerce "among the several states."
Congress ought to have the power in question. But while disposed to go to the very verge in construing the Constitution in favor of national power, I cannot see how, under that instrument as it is, the trade-mark law in its unrestricted generality, can be justified. Clearly, the copyright idea will not do.
R. MCP. SMITH.
QUERIES AND ANSWERS.
than by a properly executed deed of release, where it is unaccompanied by adverse use for the proper time, or by such circumstances as estop the owner of the way from disputing the abandonment? To state a specific case, A is the owner of a way over B's land and gives notice to B that he abandons the way and will have nothing more to do with it, and, afterwards, does not use the way, say, for 25 years. During this time there has been no adverse use on B's part, nor has he done anything, as for instance, built a house on the way, to estop A from claiming the way. Can A claim the way at the end of 25 years, or at any time after the notice of the abandonment?
59. A WAS RE-ELECTED TO THE OFFICE of county treasurer. On an examination of his books and papers for the preceding term, the Board of Supervisors find him a defaulter to the amount of $5,000. The board then approve his bond for the second term charging him thereon with the amount of his defalcation. In view of Sec. 690 of the Code of Iowa of 1873, can the sureties on his bond be held for any delinquencies occurring during the present term. M.
PROMISSORY NOTE-NOTICE-NEGLIGENCE."A" executes a note to "B," payable in bank sixty days arter date. About six months after maturity "B" sells said note for a valuable consideration to "C," and indorses the same to him without date, and with full knowledge that "A," the maker of the note, was insolvent, and without demand for payment. Some time afterwards "C" sells said note also for a valuable consideration, and indorses the same to "D" in the same manner as above given, without date, also with full knowledge of the insolvency of the maker. "D" makes a demand in a short time after he became the owner, and the note was duly protested by the bank at which it was made payable. "D" sues "A," "B" and "C" jointly, which he has a right to do under the statute of Colorado in cases of this kind. Can the defendants maintain a defense upon the ground of negligence or want of diligence upon the part of "D" in making demand, protest, etc.? And how soon should notice of protest begin, if at all, in cases of this kind, with full knowledge of insolvency, etc., as above stated? Pueblo, Col., August 29, 1878.
C. M. P.
NOTE PAYABLE IN PART IN IMPROVEMENTS.A note is executed for the rent of a farm for the year 1877, in the following words: "On the 25th day of December, 1877, we, or either of us, promise to pay H. G. B. four hundred and seventy-five dollars, for the rent of his farm for the year 1877. Seventy-five dollars to be paid on said rent in improvements to said farm, and allowed as a credit on said note. January 1st, 1877. (Signed) I. N. T. and T. J. T."
The note is past due and no improvements have been made, and the landlord has brought a suit to recover the whole amount of said note, claiming in his petition that the $75 referred to is payable in money. Can he recover? and are the tenants bound to pay the money that the note stipulates shall be paid in improvements? The note is the only contract between them, and defendants have never refused to make improvements. Winchester, Ky. S. M. B.
58. HIGHWAYS-ABANDONMENT.-In the leading article in 7 Cent. L. J., 124, occurs this passage: "But where a way is once legally established it is not lost by mere non-use unless accompanied by acts showing an intention to abandon." Can a way be lost by an abandonment, however clearly manifested, otherwise
[6 Cent. L. J. 499.]
I have just read the answer of "Kansas" to this query in 7 C. L. J. 159. I agree with him in the doctrine that a person receiving a portion of the estate fund from the administrator, in payment for property sold to the administrator in his individual capacity, and such person knowing at the time that the fund belongs to the estate against which creditors have claims, such person would be liable to the estate to the amount paid to him; and that, consequently, the three sureties on the administrator's bond, A, B and C, who had been sued together with D, the other surety on the bond, D being the person who sold property to the administrator and received the estate's money, could each recover of D the aliquot part that each was obliged to pay, if the money received by D from the administrator amounted to the sum of what A, B and C, and D were obliged to pay; if the amount so received by D were not so much, then A, B and C would be entitled to recover in proportion. I do not think it makes any difference that the administrator had sufficient assets to pay creditors aside from the money paid to D. I apprehend that the question whether D had knowledge that the money paid to him belonged to the estate, is the pivot on which the case must turn. Knowledge being evidence of fraud will not be presumed; it must be clearly proved. Grand Rapids, Mich.
[7 Cent. L. J. 139.]
Yes. A mortgagor is under obligation from the nature of the mortgage contract to preserve the property pledged for the purposes of the original security, and, on grounds of public policy, to insure good faith and fair dealing, he is estopped, independent of covenants of warranty, from denying the existence of the lien which he has attempted to create, or defeating its enforcement against the property on which it was placed. Clark vs. Baker, 14 Cal. 612, and numerous
CASES ARGUED AND ADJUDGED IN THE COURT OF APPEALS OF THE STATE OF TEXAS during the latter part of the Tyler Term, 1877, and the Galveston Term, 1878. Reported by JACKSON & JACKSON. Vol. III. St. Louis: F. H. Thomas & Co., 1878.
To the criminal practitioner, a volume of reports containing no less than 165 cases on the law of crimes, decided by a court of almost exclusive criminal jurisdiction, must of consequence possess great value. The series of state reports of which this is the third volume is, we believe, the only one which the lawyer in this branch of the profession can obtain, with the certainty that it contains nothing which will not be of use to him in his practice. A court confined in its investigations to one branch of the law, must necessarily, in a short time, acquire a reputation for its opinions which a bench called upon to decide questions without limitation as to subjects, can hardly possess. For this reason, the cases in this volume should be of great value; for the reason which we have already noted, this series should be in the library of every criminal practitioner. The present volume is large, containing over 700 pages, and is handsomely printed and bound. The opinions are, as a rule, short and pointed. Their similarity in this respect to the English criminal cases is striking.
SHORT STUDIES OF GREAT LAWYERS. BY IRVING BROWNE. The Albany Law Journal, 1878.
This volume of pen sketches of the great judges and lawyers of England and America will be opened with eagerness by the profession, and will also be laid down with regret that there is not more of it. What the author calls "distilled biography" is really more than this; it is instruction and entertainment for a week and more, within the compass of a small volume. The lives of Coke, Mansfield, Kenyon, Thurlow, Loughborough, Ellenborough, Erskine, Eldon, Romilly, Abinger, Brougham, Parsons, Kent, Marshall, Pinkney, Wirt, Riker, Story, Webster, Walworth and-Choate, are to some extent familiar to every lawyer of literary tastes, and the biographies of Lord Campbell and others are to be found in every well-stocked library. But the sketches before us are so fresh and well drawn that it is not possible for any one to read them without both pleasure and profit. If we have delayed a notice of this book longer than was necessary, it is only because we have lingered longer over its pages than is our custom.
JOHN A. INGLIS, Chief Judge of the Orphans Court of Baltimore, Md., died on the 26th ult., in his sixtyfifth year. Prior to the war he occupied for several years a seat on the bench of South Carolina.-The number of petitions in bankruptcy filed during the two days prior to the expiration of the act, was hardly as large as had been looked for.-There has been discovered among the Assyrian tablets in the British Museum, two neatly drawn plans of estates near Babylon. The first of these is a deed relating to the sale of some
land which took place towards the latter end of the reign of Nebuchadnezzar. It represents an estate of about eight and a half acres in area, and bounded on the northern side by the canal of the Goddess Banituo. The names of the owners of all the adjacents lands are given, and the greatest care is taken in giving the di. mensions of these plots of land. The whole is divided into three pairs of parallellograms, and check dimensions are taken to test the accuracy of the work. A semi-circular portion on the east side is most carefully measured, both radius and circumference being given. -The Socialist cases in Russia are now being tried by a military tribunal, a conviction being next to impossi ble in the civil courts, where trial by jury is in vogue. The scene in Odessa when the verdicts of the military tribunal were announced in the recent cases there, is described by an English correspondent: "It was 10 o'clock at night when the crowd outside of the courtroom heard that Kovalsky had been condemned to be shot, and his associates had been sentenced to various periods of exile and imprisonment. A man, who had been present during the proceedings, opened a window looking out upon the street and exclaimed: 'Now, then!' On this signal there was a sudden movement on the part of the crowd, and from several points shots were fired in the direction of a company of infantry which was guarding the approach to the tribunal. Cries of 'shame' were heard, and the people were called upon to 'rise against their oppressors.' Four soldiers were wounded, one of whom died in the night, and two persons in the crowd were killed. None of the persons who fired upon the soldiers were arrested. While this scene was taking place in front of the tribunal, a lady named Krucovicki was addressing the people on the Marine Boulevard, and calling upon them to rise. When an attempt was made to arrest her she was defended by her friends."
THERE are few practioners says the New Zealand Jurist, who have not experienced the inconvenience of searching a file of the Gazette for a legal notice, a proclamation, or an order of council-of great impor tance at the moment, but hopelessly buried in a mass of miscellaneous matter. The search is not always successful, and even when successful the feeling left behind is not pleasant. The Gazette is no doubt the the proper receptacle for these matters, in the first instance; but as public interests have rendered it necessary, in the case of advertisements relating to land sales, to publish them in the newspapers as well as the Gazette, it is equally clear that professional interests require the publication of purely fegal notifications in the Jurist as well as the Gazette. If this course were adopted, the profession would not only be relieved from difficulty as regards a search, but the various notices which it concerns them to be acquainted with would be brought under their notice at once. The expense of publishing these notices as advertisements would be too trifling to form any ground for objection. A similar inconvenience might be remedied in the same way, in the case of those notices which are required to be given under various acts-e. g., the execution of judgments against real estate act, the leases and sales of settled estates, and more especially the law practitioners act. There is another view of the matter. A recent issue of the Irish Law Times-the only legal journal in Ireland-contains some remarks on the limited support afforded it by the profession, notwithstanding its popularity; and it refers to various legal journals in the United States which receive large support from the local courts and public authorities in the shape of legal advertisements. The publication of law reports is surely of too much importance to be left to flourish entirely on its own resources.
The Central Law Journal. his care is regarded as in custodia legis, and
SAINT LOUIS, SEPTEMBER 13, 1878.
THE Supreme Court of Nebraska, in the case of Chapman v. Hall, decided last month, held that a covenant against incumbrances is a present engagement that the grantor has an unincumbered title, and is not in the nature of a covenant of indemnity. The statute of limitations, therefore, commences to run at once if an incumbrance existed at the time of the conveyance. See 3 Washburn on Real Property, 4th ed., 349; Morrison v. Underwood, 20 N. H., 367; Pillsbury v. Mitchell, 5 Wis., 17. In Foote v. Burnet, 10 Ohio, 333, a different conclusion was reached. The court say: "If the first grantee continues in possession of the land whilst his title remains undisturbed, and conveys to a subsequent grantee, in whose time an outstanding incumbrance is enforced against the land, justice requires that this subsequent grantce should have the benefit of the covenant against incumbrances to indemnify himself." No case is cited by the court in support of its position except that of Backus v. McCoy, 3 Ohio, 211. In that case the court say: 66 If the grantor, at the time of executing the conveyance, was in possession of the land, either as disseizor or under color of title, it cannot be said that he was not seized of an estate in the premises. When the grantor is not seized, either in deed or in law, at the time of conveying, the covenant of seizin must be broken at the moment of executing the deed containing it, and becomes thereby a mere chose in action, and no longer annexed to, or passing with, the land."
THE appointment of a receiver as regards, his right to property and possession, it is held by the Supreme Court of this State in the late case of Maynard v. Bond, dates from the entry of the order appointing him and not from the time when he gives hond in compliance with the order of his appointment. SHERWOOD, C. J., delivered a brief opinion: "He is elsewhere spoken of as the hand of the court,' and the property or fund entrusted to Vol. 7-No. 11.
that his appointment is in effect an equitable execution. High on Receivers, sec. 1 and 2 and cas. cit. In Steele v. Sturgis, 5 Abb. Pr. 442, it is said: "The counsel for the sheriff only objects that he was prior in right to the receiver, because his levy was made before the receiver had executed and filed the bond to be given by him. When the court, in such cases, appoints a receiver, it is because the court has first adjudged that the property is no longer to be under the control of the parties to the suit, but it is thenceforth to be and is in the custody of the court. The receiver then becomes merely an agent through whom the court acts; and whether he be forthwith appointed by the court as in this case, or a reference be made to a master or referee to appoint one, in either case the effect is the same; the title of the receiver is of the date at which it is ordered that a receiver shall be appointed. Then the title of the partners to control dies, and then the title of the court and of its agent and officer immediately succeeds. As in case of natural of an executor death the formal title does not become complete until letters
testamentary are granted as the evidence of title, but the title of the executor, when he is appointed, takes effect from the moment death terminates the title of his testator. So also it is with the title of the receiver. The order of the court either impliedly or expressly takes the title from the parties, and vests it in the receiver as from that moment. It is enough, however, if it took it from the parties; after that no execution could be levied upon it," and the motion the sheriff deliver over the property to the receiver was granted. A similar enunciation was made in Rutter v. Tallis, 5 Sandf., 610, and this Mr. High, in his recent work, High on Receivers, § 136, announces as the better doctrine. different result has been reached in Maryland, Farmers' Bank v. Beaston, 7 G. & J., 421, and it is there held that the property of a defendant will not be sequestrated until actually reduced into the receiver's possession. This last case in the only one I find directly opposed to the New York authority, and also to that of Fairfield v. Weston, 2 Sim. and Sto. 96, and to Edwards on Receivers, pp. 4 and 22. incline to the opinion that the receiver's appointment should date from the time the order is entered, regarding this view as better sus
tained by reason, as it certainly is by authority, and we the more readily incline to this view because, if upheld, it will greatly tend to prevent any unseemly conflict of jurisdiction, and because, further, a party claiming an adverse interest may appeal to the court appointing the receiver to take the necessary steps to protect that interest. High on Receivers, § 142; Sto. Eq., § 833."
IN McCarty v. Lavashe, decided by the Supreme Court of Illinois during the last term, in a suit by a creditor against a stockholder to recover a debt of the corporation, under a provision in its charter that "each stockholder shall be liable to double the amount of the stock held and owned by him," it was held that the defendant was estopped from denying his liability on the ground that the corporation was never legally organized, the act under which the incorporation was had being unconstitutional. The same question, the court said, had been several times considered in analogous cases. See Baker v. Brannon, 6 Hill, 47; Embury v. Conner, 3 N. Y. 511; Eastin v. Aspinwall, 19 N. Y. 119; Mead v. Keeler, 24 Barb. 20; Ferguson v. Landram, 5 Bush, (Ky.) 230. These were all cases where the parties were held to be estopped from insisting that the organization was illegal as a law, unconstitutional, because of the acts or consent of the parties urging the objection. In the same court analogous questions have been presented and determined. In the case of Tarbell v. Page, 24 Ill., 46, it was held that in a suit by a creditor against a stockholder, the former could not show that the corporation had failed to file a certificate of organization with the Secretary of State; that in a collateral proceeding the regularity of the corporate organization could not be questioned. Rice v. R. I. & A. R. R. 21 Ill. 93; Goodrich v. Reynolds, 31 Ill. 490. "Justice, morality, public policy and precedent," said the court "all demand that appellant should be estopped from denying the constitutionality of the law. If stockholders might show the law unconstitutional and their organization void, and all of their acts unauthorized, then all persons engaged in its organization, should be held liable for the consequences of heir illegal and unauthorized acts, independent of the clause in their charter, So they
should in no event escape liability for obtaining money without authority. Suppose these stockholders had formed a partnership containing precisely the same provisions that are contained in their charter, and had put in capital stock to the same extent and the same amounts they each subscribed in shares, would any one question the legality of the organization, or the legal liability of each of the members of the firm? We apprehend these propositions would be conceded. And, if so in principle, what distinctions can be taken between the supposed case and the one at bar? Had the stockholders written under the charter a statement that it was unconstitutional and void as a law, but that they adopted it as articles of partnership, and that each would be bound by its terms and conditions, and would pay in for capital stock the sums set opposite their several names, and they had signed it and specified the sums to be paid in,
could it be doubted that each member would have been liable under the articles thus executed? and if so, when stript of mere form, and substance is alone considered, this organization is in effect the same. We can preceive no well grounded distinction. We are therefore of the opinion that, independent of all constitutional questions, each shareholder became liable, under the charter, as articles of partnership, as it operated as an agreement by
each subscriber to be liable to creditors to double the amount each subscribed."
THE FOURTH VOLUME OF THE "AMERICAN DECISIONS."*
This series grows better as its volumes multiply. The decisions in the fourth volume cover three years-from 1808 to 1811-and embrace seventeen volumes of reports from the States of Massachusetts, (5 and 6 Mass.), Connecticut, (4 Conn.), New York, (4 and 5 Johns.) New Jersey, (2 Pennington), Pennsylvania, (2 Binney), Virginia, (2 Hening & Munford, 1 Munford), North Carolina, (1 Murphey), South Carolina, (2 Brevard, 3 Desaussure, Eq.,) Kentucky, (1 and 2 Bibb,) and Georgia, (1 T. U. P. Charlton). Some
*The American Decisions, containing all cases of general value and authority decided in the courts of the several states, from the earliest issue of the state reports to the year 1869. By John Proffatt, L. L. B., author of a "Treatise on Jury Trial," etc. Vol. IV. San Francisco: A. L. Bancroft & Co., 1878.