« ForrigeFortsett »
what out of their chronological order there appear several cases from the first and second volumes of Tyler's Vermont Reports, (18011803), the result of a second examination made of them by the editor, who at first had rejected these reports altogether as containing no cases of sufficient general importance to entitle them to a place in this work.
In Phelps v. Goddard, 1 Tyler, 60, where several persons, by a combination, enticed a citizen of Vermont to go to another state, that he might be there arrested on civil process, and he was so arrested, it was held by the Supreme Court of Vermont that they were liable to him in an action on the case, although the debt for which he was arrested was justly due. "It certainly is not for the peace of society," the court sternly remarked, "to sanction combinations to entice our fellow-citizens within the jurisdiction of other states and the process of their courts. The law abhors deceit, and it is to be hoped that our halls of justice will be the last places polluted with the maxim of modern ethics-that the end justifies the means.' Coon v. Moffett, 2 Pennington, 583, decided by the Supreme Court of New Jersey, is a leading case on the common law action of seduction.
It was decided in this case that an action may be maintained by a mother for the seduction of her minor child, although the seduction took place in the life-time of the father, and the loss of service happened after his death. In a very lengthy and exhaustive note, (in which, however, the case of Long v. Keightley, 5 Cent. L. J. 80, should have been cited, but is not), the editor discusses the subject of loss of service-the gist of the common law action-both in England and this country. This anomaly of the common law has, we learn from the note, been abolished by statute in Alabama, California, Georgia, Indiana, Iowa, Michigan and Minne
In Symmes v. Frazier, 6 Mass. 344, where a reward was offered by public advertisement for the recovery of lost bank bills, it was held that the finder of a part was entitled to a pro rata share of the reward offered. This case is relied upon by the Supreme Court of Iowa, in the case of Hawk v. Marion County, published in the present number of the Journal.
Can any one suggest a reason why cases of ɛlander so abound in the old reports? In the
present volume there are half a dozen, and in the earlier volumes there were even more, for the first of this series contained not less than seven. And these, it will be remembered, are leading cases in the law; how many more there are in the reports which this series has condensed, the editor, and any one else who cares to investigate them, can only know. In Logan v. Steele, 1 Bibb, 593, the words "I have every reason to believe" the plaintiff burned a barn were held to be actionable. The reference in the opinion in this case to Barham's case, 4 Co. 20, illustrates the tendency of the old judges to avert the rigor of the common law as to crimes. There it was held that the words "he burnt my barn" were not actionable, as the words were to be construed in their mildest sense, i. e., as meaning a barn which had no grain in it, the burning of which was a mere trespass, while if it had contained grain, or been a part of the mansion-house, it would have been a felony.
In Bunn v. Riker, 4 Johns. 426, the legality of a wager on the event of an election was before the Supreme Court of New York, and that court decided it to be void as against public policy. Van Vechten v. Hopkins, 5 Johns. 211, is a leading case on the law of libel, and which, because of its clear exposition of terms, has been indorsed in many subsequent cases. To it, Mr. Proffatt has added one of the most exhaustive notes which this volume contains-a complete monograph on one of the most important questions in the law of libel, viz, the import or effect of the libelous charge. In Curtis v. Strong, 4 Day, 51, one Robbins, who had signed a will which was in dispute, was offered as a witness to prove its execution. An objection was made to his admission as a witness, for the reason that he did not believe in the obligation of an oath, and in a future state of rewards and punishments. To prove the truth of this, the testimony of several witnesses was received who proved certain declarations of his on the subject. Robbins was then again offered as a witness to prove that the declarations referred to were never made by him, and that he did believe in the obligation of an oath, but the court refused to allow him to testify. On appeal. this ruling was sustained. In Jackson v. Gridley, 18 Johns. 103, this case was highly approved of by the court, Spencer, C. J., say
ing: "I fully concur in the opinion expressed in Curtis v. Strong, that it would be incongruous to admit a man to his oath to ascertain whether an oath had any binding influence on his conscience."
A devise of an annuity by a testator to his wife “during her widowhood and life," was held in Parsons v. Winslow, 6 Mass. 169, so far as the condition was concerned, to be in restraint of marriage, and of no effect. The note to this case contains a discussion of the question of conditions in restraint of marriage, and cites the rather quaint language of Chief Justice Thompson in Com. v. Stauffer, 10 Penn. St. 350, who, by the way, took a somewhat different view of such conditions from that entertained by the Massachusetts Court, just referred to: "It would be extremely difficult to say why a husband should not be at liberty to leave a homestead to his wife, without being compelled to let her share it with a successor to his bed, to use it as a nest to hatch a brood of strangers to his blood."
Watkins v. Baird, 6 Mass. 506, is a leading case on duress by imprisonment, as is Betts v. Lee, 5 Johns. 348, on the effect of an alteration of form in property on the right of the owner to reclaim it. The editor's notes to each of these cases are full and satisfactory. These remarks apply also to Fouville v. Casey, 1 Murphy, 389, as to sales of property not in esse; to Rickets v. Dickens, 1 Murphy, 343, to warranties in deeds; to Com. v. Searle, 2 Binney, 332, as to forgery at common law and under statutes; to Thacher v. Dinsmore, 5 Mass. 299, as to the personal liability of guardians; to Bond v. Farnham, 5 Mass. 170, as to waiver by an indorser of demand and notice; to Baker v. Wheaton, 5 Mass. 509, as to the effect of a discharge under the insolvent laws of another state; to Rogers v. Hurd, 4 Day, 57, as to the confirmance of a contract made by an infant; to Belden v. Carter. 4 Day, 66, as to the delivery of deeds; to Sands v. Codwise, 4 Johns. 536, as to fraudulent conveyances; to Wilkes v. Ferris, 5 Johns. 335, as to preferences; to Wilcocks v. Union Ins. Co., 2 Binney, 574, as to what constitutes barratry, and to State v. Owen, 1 Murphey, 452, as to the description of wounds in an indictment for murder by stabbing.
Union, and of the decisions of their courts upon similar subjects exist. It often operates to the detriment of suitors. It is to be hoped that, at some not far distant day, the publication of reports of decisions in the state courts will effect a greater uniformity in law and decision. Until then, nought remains but for each state to promulgate such laws as meet the sense and habits of its own citizens, and for each state judiciary to administer them faithfully." So spake, in an opinion published in this volume, WOODBRIDGE, Chief Justice of the Supreme Court of Vermont at the commencement of this century. The "not far distant day" has arrived this many years, and the name of the reports of decisions in the state courts is legion. But the uniformity in decision has not yet come, and the judge's prophecy is far from realized. Wherefore it is
that the work before us has not been too soon commenced; and as each succeeding volume comes from the press, its value and utility become more and more apparent.
1. THE AUTHORITIES OF A COUNTY have no power to offer a reward for the apprehension of a criminal, such power being only possessed by the governor, on whom it is expressly conferred by statute.
2. THE BOARD OF SUPERVISORS OF A COUNTY may, however, by virtue of their general authority over the property of the county, offer and pay a reward for the recovery of money stolen from the county treasury.
3. WHERE SUCH REWARD HAS BEEN OFFERED, a person who recovers a part only of the money stolen, is entitled to a pro rata portion of the reward.
Appeal from Marion District court.
The treasury of the defendant was robbed, and as plaintiff claims a reward was offered by the defendant for the arrest and conviction of the thieves and an additional amount for the recovery of the money stolen. A demurrer to the petition having been sustained the plaintiff appeals.
Geo. W. Seevers and Bryan & Russell, for appellant; Anderson and Gamble, for appellee.
SEEVERS, J., delivered the opinion of the court: I. The plaintiff claims to have procured the arrest and conviction of one of the thieves, and to have
recovered or given such information as led to the recovery of a portion of the stolen money and claims a pro rata share of the reward. This is resisted by the defendant on the ground, the board of supervisors had no power or authority to offer the reward.
There is no statute which expressly or by necessity implication imposes upon counties any duty in respect to the arrest of persons charged with crime. The purposes for which money belonging to a county may be expended are defined in a great measure at least by statute, and the expenditure must be for some legitimate purpose connected with the county government, unless there is a statute authorizing it for a different purpose. The only manner counties can procure means to pay such rewards is by taxation, and the people of one county, as distinguished from the people of the state, have no such especial interest in the arrest and conviction of criminals as will authorize the levy of taxes to pay such an expense in the absence of a statute authorizing or imposing it.
It is the duty primarily of the state to cause the arrest and conviction of criminals, in the performance of which the state makes use of such officers and agencies as it sees proper, and if the general assembly saw proper there is no doubt a duty in respect thereto could be legitimately imposed on counties. But instead of doing so the statute expressly authorizes the governor in certain specified cases to offer a reward for the apprehension of persons charged with the crimes of murder or arson. Code, § 58.
The statute in Maine, as to the power of towns in this respect, is much like ours as to counties, and there also the governor is authorized to offer rewards in certain cases. It was held in Gale v. South Berwick, 51 Maine, 174, that towns in that state had no power to offer rewards for the arrests of criminals. Such seems also to be the rule in Illinois. County of Crawford v. Spenney, 21 Ill. 288. But a contrary rule was adopted in the Borough of York v. Forscht, 23 Penn. St. 391, on the grounds that the burgesses of the Borough were a part of the public police. Janvrin v. Exeter, 48 N. H. 83, is not applicable because the power in that state is confined by statute, and such is true as to Crawshaw v. Roxbury, 7 Gray 374.
But as to the power to offer a reward for the recovery of the money stolen, we think a different rule must prevail and that to this extent the demurrer should have been overruled.
Counties are bodies corporate for civil and political purposes and "may acquire and hold property and make all contracts necessary or expedient for the management, control and improvement of the same." Code § 279. Within the limits conferred by statute, the boards of supervisors have the same authority and power as to counties as that possessed by the general assembly for the state at large, the essential difference being that the constitution of the state is prohibitory, and defines what the general assembly may not do where as to counties the authority of the board of supervisors must be found in the statute in express words or fair implication. Such boards have full
control of county property and the care and management thereof. Code § 303, sub. sec. 11. They levy taxes for the purpose of defraying the expenses of the county government and within the maximum fixed by law, they are the exclusive judges of the necessities of the counties in this respect. Code § 796.
Such being their duties by necessary implication, they are authorized, we think, to offer a reward for the recovery of money belonging to their several counties which has been stolen. If they cannot do so then no such power exists. If the stolen money should not be recovered a similar amount must be raised by taxation. Now, if the money can be obtained by offering a reward, the board has not only the power but we think would be remiss in their duty should they fail to do so if such, in their judgment, was the only or better way to recover the money. If no such power exists then if advised that the stolen money was probably on deposit in some distant place they would not have the power to pay the expenses of any one to go to such place, identify the money and return it to the county treasury.
Of necessity it seems to us this power must exist, otherwise when a county treasury is robbed the county authorities must fold their hands and remain passive until the thief repents and voluntarily returns the money, or rely on the exertions of the individual citizen to work and labor for the recovery of the money without hope of pay or pecuniary reward. If the latter discovered the money under such circumstances the temptation to divide with the thief instead of the county would be great.
We have been referred by counsel to Webster Co. v. Taylor, 19 Iowa 119; Soper v. Henry Co., 26 Ib. 264; Reichard v. Warren Co., 31 Ib. 388, and Long v. Boone, 36 Ib. 65. But none of those cases have any application to the case at bar.
II. It is objected that the payment of the reward was conditional on the arrest and conviction of the thieves and the recovery of the whole amount of money stolen. Such amount was about $12,000 and the reward offered was "five thousand dollars for the arrest and final conviction of the thieves" and "five thousand dollars additional reward will be paid for the recovery of the money." It will be seen the reward offered for the recovery of the money is in no respect conditional on the arrest of the thief. They are wholly separate and distinct, and in this respect entirely different from the terms and conditions upon which the reward was payable in Jones v. Phoenix Bank, 38 N. Y. 228, cited by the appellee.
It is also insisted, as the plaintiff only claims to have recovered or given information which led to the recovery of a portion of the money he is not entitled to recover a pro rata share of the reward. In Symmes v. Frazier, 6 Mass. 344, this question is expressly ruled against the appellee. In the present case the amount stolen was uncertain, that is the exact amount we suppose was not known. But concluding it to have been exactly $12,000 the position of the appellee amounts to this: If $11,999 had been recovered no portion of the re
ward offered was payable as was held in the Massachusetts case cited. We do not think this is a fair construction of the proposition. It was not so understood by the board of supervisors, because they paid a pro rata share of the reward for the recovery of another portion of the money than that now sued for.
III. It is insisted the board of supervisors were not in session when the reward was offered or rather when they determined to offer it. But we regard it as too clear for serious controversy that they afterward and while in session ratified and confirmed what had been done.
This they had the power to do. For it was competent for them to ratify and make obligatory from the beginning any act irregularly done, which they as an original proposition had the authority to do.
In consequence of the reward offered, as it sufficiently appears from the petition, the plaintiff accepted the offer and undertook the recovery of the money and after this and perhaps after the plaintiff had done all he claims toward the recovery of the money the acts of ratification took place. But this can make no difference, for both parties were acting in entire good faith, and the plaintiff had given information as he claims which led to the recovery of the money relying as he had the right to do on the good faith of the defendant to pay the reward if he showed himself entitled thereto. The case of Fitch vs Snedaker 38 N. Y. 248 is not in point because in that case the reward was offered to any person who should give information which would lead to the "apprehension and conviction" of the criminal and the plaintiffs had no knowledge of the reward at the time they gave information which led to the arrest, and as to the conviction it was held that one who gave no information until after the arrest was not entitled to the reward. Having determined the board had the requisite power, the amount of the reward in the absence of fraud was wholly within their discretion.
Without enlarging on the question we are of the opinion the matters stated in the petition entitle plaintiff to recover. Whether he gave
information as to entitle him to the reward is a question for the jury under the instructions of the
those in the prior lease, making no reference to such lease, and reserving no rights to him in trade fixtures, annexed during the previous term and not removed before its expiration, he has no right to remove such fixtures during the new term.
Action of contract, in which the plaintiff claims to recover damages for a breach of covenant, contained in an indenture of lease, for the return of the demised premises at the end of the term in good order and condition, etc. The breach complained of was the taking down and removal of a fire-proof safe and vault, and also a furnace with pipes and flues, and also certain counters. The defendants answered that the articles removed were their own property.
It appeared that the plaintiff and one Hyde, as tenants in common, owned certain real estate and buildings thereon in Cambridge, and by a lease dated Jan. 1, 1861, demised the premises described in the declaration to the Harvard Bank for the term of five years. The lessees thereupon constructed in the building a fire-proof safe or vault, for the safe-keeping of money, books and securities; also a portable furnace in the basement, with the necessary pipes, flues and registers for warming their rooms, and also certain counters; and the premises were occupied by the lessees as their banking-rooms. Before the expiration of the term, viz, May 16, 1864, the lessees were organized as a national bank under the laws of the United States, and their name was changed to the First National Bank of Cambridge, but there was no other change in their identity. Their lease contained a clause giving to the lessees the privilege, at their option, of renewing and extending their enjoyment of the premises for the additional term of five years, upon the same terms. In the course of the term a partition was duly had between Hyde and the plaintiff, by virtue of which the plaintiff became the sole owner of the demised premises. Before the expiration of the term the bank elected to continue to hold under the lease for the five additional years. Before the expiration of the additional five years a new lease was executed between these parties, dated October 7, 1870, granting to the defendants a further term of five years from the first day of January, 1871. On or about November 5, 1875, the defendants removed to another building, taking down and removing the articles above mentioned. ENDICOTT, J., delivered the opinion of the court: It is stated in the report that the Harvard Bank. soon after taking possession of the premises under the lease of January 1, 1861, put in a counter, a portable furnace with its necessary connections, and a fire-proof safe or vault, for the removal of which, in 1875, this action is brought. In 1864 the Harvard Bank was organized as the First National Bank of Cambridge. No question is made that all the proceedings were according to law. The right to the personal property of the old bank passed therefore to the defendant, upon the execution of the necessary papers and the approval of the proper officers; no other assignment was necessary. Atlantic National Bank v. Harris, 118 Mass. 147, 151.
The right of the defendant to occupy the premises under the lease to the Harvard Bank for five
years, and to exercise the option contained in the lease to hold the premises for five years more at the same rent, seems to have been conceded by the lessors, for the defendant continued in possession, paying rent during the whole term of ten years contemplated by the lease, which expired January 1, 1871. We must assume that the title not merely to movable chattels upon the premises, but also to trade fixtures put in by the Harvard Bank. passed to the defendant, as the plaintiff does not deny that the defendant could have removed such of the articles as are trade fixtures at any time before the final expiration of the lease, on January 1, 1871.
In October, 870, about three months before the final expiration of the term of the old lease, the plaintiff, one of the original lessors, who had in the meantime acquired the whole title to the premises, executed a new lease to the defendant, then in occupation, for a much higher rent, containing different stipulations from those in the old lease, particularly in regard to abatement of rent in case of fire. This lease was to take effect January 1, 1871, but made no reference to the existing lease, or to the removal of any trade fixtures then upon the premises. It was in no proper sense a renewal of the old lease. It contained the usual covenants on the part of the lessee to quit and deliver up the premises at the end of the term in as good order and condition" as the same now are.' Although executed before the expiration of the earlier lease, it can have no other or different effect than if given on the day it was to become operative, and its stipulations and conditions are to be considered as if made on that day. And the question arises whether the acceptance of the new lease, and occupation under it January 1, 1871, was equivalent to a surrender of the premises to the lessor at the expiration of the first term. If it did amount to a surrender, it is very clear that the defendant could not afterwards recover the articles alleged to be trade fixtures.
The general rule is well settled that trade fixtures become annexed to the real estate, but the tenant may remove them during his term; and if he fails to do so, he can not afterwards claim them against the owner of the land. Poole's case, 1 Salk. 368; Gaffield v. Hapgood, 17 Pick. 192; Winslow v. Merchants Ins. Co., 4 Met. 306, 311; Jacob v. Spaulding, 4 Met. 416; Bliss v. Whitney, 9 Allen, 114, 115, and cases cited; Talbot v. Whipple, 14 Allen, 177; Lyde v. Russell, 1 B. & A. 394; Baron Parke, in Minshall v. Lloyd, 2 M. & W. 450. This rule always applies where the term is of a certain duration, as under a lease for a term of years, which contains no special provisions in regard to fixtures. But where the term is uncertain, or depends upon a contingency, as where a party is in as tenant for life or at will, fixtures may be removed within a reasonable time after the tenancy is determined. Ellis v. Page, 1 Pick. 43, 49; Doty v. Gorham, 5 Pick. 487, 490; Martin v. Roe, 7 E. & B. 237. See Whiting v. Brastow, 4 Pick. 310, 311 and note.
There is another class of cases which form an exception to the general rule. Where a lease was given by an agent without sufficient authority,
during the absence of the owner, and was terminated by the owner on his return from abroad, it was decided by this court that the lessees became tenants at sufferance, and could remove their fixtures within a reasonable time after such termination. Antoine v. Belknap, 102 Mass. 193. In Penton v. Robart, 2 East, 88, it was held that a tenant who had remained in possession after the expiration of the term had a right to take away his fixtures, and Lord Kenyon said: "He was in fact still in possession of the freehold at the time when the things were taken away, and there was no pretence to say that he had abandoned his right to them." In Weeton v. Woodcock, 7 M. & W. 14, a term under a lease had been forfeited by the bankruptcy of the lessee, and the lessor entered upon the assignee to enforce the forfeiture, and it was held that they might have a reasonable time to remove fixtures. And Mr. Baron Alderson said, "that the tenant's right to remove fixtures continues during the original term, and during such further period of possession as he holds the premises under a right still to consider himself as tenant.' 99
Mr. Justice Willes, commenting on these two last cases in Leader v. Hornewood, 5 C. B. N. S. 446, said: "It is perhaps not easy to understand fully what is the exact meaning of this rule, and whether or not it justifies a tenant who has remain. ed in possession after the end of the term, and so become a tenant at sufferance, in severing fixtures during the time he continues in possession as such tenant." But the rule, whatever its exact meaning may be, is plainly inconsistent with the argument relied on by the counsel for the plaintiff, viz: that the right of the tenant continues till he has evinced an intention to abandon his right to the fixtures. In Mackintosh v. Trotter, 3 M. & W. 184, Baron Parke, after stating that whatever is planted in the soil belongs to the soil, remarked "that the tenant has the right to remove fixtures of this nature during his term, or during what may for this purpose be considered an excrescence of the term." He also refers to Minshall v. Lloyd, 2 M. & W. 450, as authority, wherein he stated in the most emphatic manner, that "the right of a tenant is only to remove, during his term, the fixtures he may have put up, and so make them cease to be any longer fixtures." It is clear from these cases that the right of a tenant in possession after the end of his term to remove fixtures within a reasonable time, does not rest merely on the fact that he is in occupation, or has not evinced an intention to abandon, but because he is still in, in contemplation of law as tenant under the original lease, as Baron Parke says, under what may be considered an excrescence of the term, that is, as tenant at sufferance.
But a very different question is presented when the same tenant continues in possession under a new lease containing different terms and conditions, making no reference to the old lease, reserving no rights to the lessee in fixtures annexed during the previous term and not removed before its expiration, and containing the covenant to deliver up the premises at the end of the term in the same condition. This is not the extension of