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DAMAGES-SHOOTING OF PLAINTIFF-EVIDENCETHREATS MADE BY PLAINTIFF.- This was a suit for damages sustained by plaintiff by reason of being shot and severely injured by defendant, who was a sheriff. It appears that defendant was out serving papers, and waited at the intersection of roads when he observed plaintiff approaching with a gun on his shoulder. As the plaintiff came up the defendant took deliberate aim and shot at him twice, both shots taking effect. The facts were substantially admitted. The only defense insisted upon is that plaintiff had, some twenty days before, threatened to take the life of defendant. Defendant offered to prove on the trial by witnesses that they had heard plaintiff make threats against defendant some twenty days before the shooting. That evidence was excluded, and the action of the court is assigned for error. Judgment below was for plaintiff. SCOTT, J., says: "The evidence was not offered as a matter of defense, but in mitigation of punitive or exemplary damages; but our opinion is it was not competent for any purpose. There is no principle with which we are familiar on which such evidence is admissible. Unless the threats which it is proposed to prove are so recent as to become a part of the transaction being investigated, such testimony is not admissible under any known rule of evidence for any purpose. See 75 Ill. 397. ** Before a party may attack or inflict bodily harm upon a person who has made threats against him, however well grounded his apprehension may be, there must be some overt act from which an intention may be reasonably inferred to carry into effect his threat of personal violence. See 12 Tex. 462; 44 Miss. 762. These salutory principles have been applied in civil actions for the recovery of damages, where, it is held that such evidence is not admissible, even in mitigation of damages. 19 Johns. 318; 1 Mass. 11; 5 Iowa, 478; 2 Duer, 310." Affirmed.-Cummins v. Crawford.
NEGLIGENCE-FAILURE TO PRESENT BANK CHECK. -1. Delay to present bank check until the failure of the bank, ten days after its receipt, held negligence which would have discharged the drawers if they had left funds in the bank until that time to meet the check. 2. But where the drawers drew out their entire account in the bank before its failure, they are liabie to protect the check; and this, though the bank would probably have paid it at any time before the day of failure, and although its assignee (under the federal bankruptcy act) recovered from the drawers the money drawn out by them on that day. Opinion by RYAN, C. J.-Kinyon v. Stanton.
INSUFFICIENCY OF HIGHWAY OPINION OF EXPERTS.-1. While in extreme cases the insufficiency of a highway may be so great and manifest as to warrant the court in holding it insufficient as matter of law, the question is generally one of mere fact for the jury, upon evidence of the actual condition of the highway. 2. While there might possibly be cases in which the opinions of experts would be admissible upon questions going to the sufficiency of a highway, yet generally the question of such sufficiency is not one of
science or skill, and the opinions of witnesses thereon are inadmissible; and the exclusion in this case of such testimony of one who had been a civil engineer, but did not appear to be an expert as to the construction of highways, was not error. Opinion by RYAN, C. J. -Benedict v. City of Fond du Lac.
TAX CERTIFICATE MEANING OF "MUNICIPAL CORPORATIONS."-1. Tax certificates issued to a county can not be transferred by it without an assignment in writing. 2. The term "municipal corporations," in the constitution of this state, does not include towns (Norton v. Peck, 4 Wis. 714); and when used in our statutes it must be taken in its strict constitutional sense, unless a different intention on the part of the legislature is clear. 3. In the proviso to sec. 1, ch. 112, Laws of 1867, the words "counties or municipal corporations," include cities and villages, and any other municipal corporations strictly so called, but do not include towns, school districts and other quasi corporations. 4. Towns are not authorized to purchase and hold tax certificates; and the intervention of a town as the pretended owner of such certificates does not suspend the statutory limitation of actions thereon. Opinion by ORTON, J.-Eaton v. Supervisors of Manitowoc Co.
CONTRACT-INTEREST.—1. Without a biil of exceptions, rulings on the trial as to the admission of evidence can not be reviewed here. 2. On the amount due plaintiff by the terms of his contract (according to a former decision herein, 42 Wis. 377), he is entitled to interest from the time of his discharge as building su perintendent of the northern hospital for the insanethat amount having been capable of being ascertained by computation. 3. Where a party's right to compensa. tion under a contract is doubtful, and is contested on reasonable grounds, and the amount due him requires to be determined by suit, interest will not be allowed for the time preceding such determination of the right of recovery and the amount due. 4. Thus, on the amount awarded plaintiff by the jury as the value of his plans, etc., for that part of the hospital building not erected under his superintendence, interest should be allowed only from the verdict; especially as his claim, rejected by the legislature, was for a greater sum than he was entitled to. 5. The board in charge, and thereto authorized, having, at a regular meeting, adopted a plan for surface drainage of the grounds, etc., previously prepared by plaintiff at the request of individual members of said board, and having ordered him to contract for the work according to such plan, this was a ratification of the plan, and entitled plaintiff to recover therefor. Opinion by COLE, J.-Shipman v. State.
substance that the defendant is charged with adulterating, with the precision and certainty that the constitution of the commonwealth and the rules of criminal pleadings require. Decl. Rights, Art. 12; Com. v. Maxwell, 2 Pick. 139; R. v. Chalkley, Rus. & Ry. 258; State v. Morey, 2 Wis. 494. PER CURIAM.-Com. v. Chase.
DONATIO CAUSA MORTIS- DEPOSIT IN BANK.-A deposit in a savings bank may be the subject-matter of a valid donatio causa mortis, and the gift may be proved by the delivery of the bank book representing the deposit, accompanied by an assignment to the donee. Such a delivery may be consistent with other purposes, but if it is clear upon the evidence that the donor intended by the act, and in contemplation of death, to make the gift to the donee as a final disposition of the property, it is a good donatio causa mortis. Grover v. Grover, 24 Pick. 261; Sessions v. Mosely, 4 Cush. 87; Bates v: Kempton, 7 Gray, 382; Chase v. Redding, 13 Gray, 418: Tillinghast v. Wheaton, 8 R. I. 536; Constant v. Schyler, 1 Paige, 316. Opinion by ENDICOTT, J.-Sheedy v. Roach.
CONTRACT-VOID PATENT-In consideration of an exclusive license, for the term of about one year, to manufacture certain grate bars under a patent, and of the undertaking of the plaintiff to convey said patent to the defendants on terms set forth in a written contract, the defendants undertook to pay the plaintiff a certain sum on the first day of each month till the expiration of the year, the sum so paid to be counted as a part of the agreed price of the patent, if the defendant should elect at the end of the year to buy the patent, but otherwise to be regarded as payment for the license. Before the second monthly payment fell due the defendants discovered that the patent was void for want of novelty in the alleged invention, and refused to make further payments for that reason: Held, that the defendants were not liable on their promise. Opinion by SOULE, J.-Harlow v. Putnam. REAL ACTION-DISCLAIMER-EASEMENT.-In a real action in which the tenant disclaimed all title, and the demandant replied denyiug each and every allegation in the disclaimer, evidence which would warrant a jury to find that the tenant had claimed an easement only in the demanded premises, and had enjoyed the same is not an answer to the disclaimer. There may be cases in which the tenant, although disclaiming title, may have had such an actual occupation of the premises as to entitle the demandant to consider himself disseized, although such occupation was by inadvertence, and without any intention to claim title to the soil and freehold. Props. Locks & Canals v. Nash. & Low. R. R., 104 Mass. 1. Bnt where it is plain that the claim of the tenant is merely an easement, and that he has had no other use than that of such easement, the demandant can not elect to consider himself disseized and recover against the tenant compensation for such use. Judgment for tenant for costs, and for demandant for possession. Opinion by LORD, J.-Cole v. Inhabs. of Eastham.
subject to taxation upon the average amount of deposits used by him in his business. Opinion by BREWER, J. Affirmed. All the justices concurring. -Knox v. Commrs. of Shawnee County.
GOSTS IN CRIMINAL CASES.-B was subpœnæd as a witness on behalf of the state in a criminal action, pending in the district court of Shawnee county, He attended the court in obedience to the subpoena. nolle prosequi was entered on the trial of the action by the prosecuting attorney, with leave of the court. Afterwards B brought an action against Shawnee county to recover fees and mileage as a witness. Held, that the county is not liable. State v. Campbell, 19 Kas. 181. Opinion by HORTON, C. J. All the justices concurring. Reversed. Commrs. of Shawnee Co. v. Bollinger.
CHATTEL MORTGAGE-DEFECTIVE DESCRIPTION-DELIVERY.-Where a chattel mortgage fails to duly describe the property, the defect is cured by the subsequent delivery of the property to the mortgagee as against parties who have not acquired any rights or interest before such delivery. The delivery, in such a case, must be such an actual transfer of the possession and control of the property that if it was destroyed the loss would be that of the mortgagee. A constructive possession will not avail. Opinion by HORTON, C. J. Reversed. All the justices concurring.— Parsons Savings Bank v. Sargent.
INCORPORATION OF CITIES BY SPECIAL ACT-ILLEGAL LEGISLATION.-1. The act of the legislature entitled "An act authorizing cities therein named to become cities of the second class," approved February 29, 1872, (Laws of 1872, pages 231, 232,) is a special act conferring corporate powers upon four particular municipal corporations, and is therefore unconstitutional and void, being in contravention of section 1, of article 12, of the constitution, which provides that "the legislature shall pass no special act conferring corporate powers." 2. The city of Council Grove was organized as a city of the second class, and under said special act, and was never organized as a city of the second class under any other act, and has never had a said city is not rightly or legally a city of the second population of two thousand inhabitants. Held, that class. Opinion by VALENTINE, J. Judgment for plaintiff. All the justices concurring.-State v. Maley.
A TREATISE ON THE LAW OF NOTICE, as Affecting Civil Rights and Remedies. By WM. P. WADE. Chicago: Callaghan & Company. 1878.
There can be no objection raised to this work, that the branch of law which it discusses has been already fully treated by older and better known writers. Too many of the recent treatises on law will merit this criticism. An examination of a new work on an old subject soon shows the reader's only gain to be the possession of a hundred or so more authorities. But the clearness of style, and the thorough comprehension of his subject, which was a characteristic of the older writer, is looked for in vain; and the purchaser soon comprehends that the object of the publication was not so much to fill any wants of the profession for such a work, as to minister to the wants of the publisher and author.
But, as we have said, the book before us is open to no such criticism. It discusses a branch of the law not before the subject of a separate treatise, though more than one have, during the past year, been announced. "In preparing the book for publication," says the au
thor in the preface, 66 no model has been followed, for the reason that there was no model to follow." He has not attempted to improve upon other authors who have written upon much discussed subjects, but has explored, almost alone, a new field. His labors, we are assured, will be appreciated by the profession; it is not too much to say that a library will be far from complete whose shelves do not contain the only treatise on so frequent a branch of the law as the law of Notice. Mr. Wade's method of treatment is judicious and analytical. The book is divided into eight chapters, in which the following questions are discussed. 1. The different kinds of notice-actual and constructive. 2. Notice to purchasers, as by registration, possession &c. 3. Notice by which certain liabitities are created. In this chapter notice of acceptance of proposals, of guaranty, of assignment and to carriers and other bailees is treated upon. 4. Notice by which liability is extinguished or modified. In this chapter the important subject of notice by carriers, limiting their liability, is examined at considerable length. 5. Notice of agency. 6. Notice of dishoner of commercial paper. 7. Publication of notices. 8. Practice and pleading. The book contains over 600 pages, exclusive of a table of cases and an exhaustive index. The printing and binding are good. We close this brief "notice" with the remark that the author is a well known member of the bar of this city, and has dedicated his work to the former editor of this JOURNAL in kind and flattering terms.
QUERIES AND ANSWERS.
63. PROMISE CONSIDERATION.- A landlord, A, gives a tenant, B, legal notice to quit on or before a certain date. After that date B is still in possession, and refuses to quit unless A pays him $100. A being desirous of re-building the premises, and finding delay will be vexatious and costly, pays the $100. Can he subsequently recover this sum from B? A.
64. DOWER-HOMESTEAD.-Under the statute of Illinois, the widow of a deceased husband is entitled to one-third of all the real estate which he left at his death as dower, and in assigning dower she is entitled to her one-third in the lands upon which the dwellinghouse, barn, etc., are situated; and in addition to that she is entitled, under the statute, to a homestead which shall include dwelling-house, etc., and real estate to the value of one thousand dollars. In a proceeding to assign dower and homestead, how should they be assigned with reference to each other, they being separate and distinct interests?
[7 Cent. L. J. 219.]
See Krettle v. Newcomb, 22 N. Y. 249, and Maxwell v. Reed. 7 Wis. 582, wherein it is held that such a prospective waiver of exemption is void as against the law.
La Crosse, W s.
WE would call the attention of our correspondent, A. H. K., whose paper on "Negotiable Paper-Extent of Recovery" appeared in our last issue (p. 238), to the dec.sion of the Supreme Court of the United States in Cromwell v. Sac County, 6 Cent. L. J. 209, and the
appended note. He will find there some authorities not noticed in his criticism.
A subscriber draws attention to what he considers a great hardship in the effect of the decision of the Supreme Court of this state, in City of Jefferson; v. Opel, 7 Cent. L. J. 46, 229. He thinks it is in violation of rule 13, referred to by T. H. B, ante p. 229. But his most serious complaint is that "it is not supported by any prior authority, or decision in this state. The cases referred to and relied on by the court are United States v. Gamble, 10 Mo. 459, in which there was no bill of exceptions filed at all; and State v. Wall., 15 Mo. 208, where, also, there was no bill of exception; and Christy's Admr. v. Meyers, 21 Mo. 112; and Sturdivant v. Watkins, 47 Mo. 177, where the court say there was no bill of exceptions. None of them were cases of "skeleton bills." The writer of this has been practicing in this state for twelve years, and knows that during all that time it has been the constant practice to make bills of exceptions like that in the Opel case (never knew one otherwise), and for clerks to send their transcripts up in the same condition. And until that case no question ever was made as to the propri ety of it. Besides, the deputy clerk of the Supreme Court, since that case was decided, stated to the writer that he thought three-fourths of the transcripts in that court were subject to the same objection as that in the Opel case. When these things are so we think it would have been well for the court to at least give the bar notice that they intended to establish a new rule. For it is a new one. Or if you say there was none before and that they should make one, the result is that many find themselves in that court with an improper transcript, which, heretofore, has been all right."
MR. JUSTICE MILLER has entirely recovered from his late illness.-The next term of the Supreme Court of the United States will commence on the 14th of next month. Baron Blackburn, Mr. Justice Barry, of the Irish Queen's Bench, Mr. Justice Lush, and Sir James F. Stephen, of England, are the commissioners appointed to examine and report upon the proposed English criminal code.-Blackstone's Commentaries are being translated into Chinese by the Secretary of the Chinese Legation at London.
JUDGE BAXTER, Circuit Judge of the United States for the Sixth Circuit, in passing upon an application in the Federal Court at Cincinnati, last week, to allow the receiver of a railroad to be garnished, took occasion to remark that the practice of placing railroads in the hands of receivers is altogether too common. It has become a great evil. He cited the case of a railroad in Georgia, which cost $15,000,000. The receiver, who was in charge for three years, issued certificates of indebtedness to the value of $1,500,000, and when the road was sold the proceeds were not sufficient to pay the certificates. In another case in Detroit, a road cost over $8,000,000. When the road came to be sold, eminent counsel requested the judge to fix the minimum price for the sale, suggesting that said price should be a sum sufficient to cover the charges of the receiver and his lawyer. Judge Baxter said he had observed that when a receiver got possession he generally ran the road for the benefit of himself and his employees, including the attorneys, and he (the judge) would hereafter see that there should be a reform in his circuit for the benefit of the creditors and stockholders. If the proceedings to sell and realize were not vigorously pushed to a conclusion, he would vacate the receivership and give the road back to the company.
The Central Law Journal. mission of a crime, it is clear that no bur
SAINT LOUIS, OCTOBER 4, 1878.
In People v. Collins, 2 P. C. L. J. 62, recently decided by the Supreme Court of California, the defendant had been convicted of burglary under the following circumstances. It appeared that he had requested one P to enter a certain building in the night time and to steal therefrom a sum of money, which he knew to be concealed there, the money, when stolen, to be divided between them. Instead of accepting and acting upon this proposal, P immediately informed the sheriff of it, who, after consultation with the district attorney, advised P to pretend to the defendant that he accepted the proposition and would carry out the enterprise. It was, therefore, agreed between P and the sheriff that when the money was taken it should be marked with acid that it could be identified; and that when the money was delivered to the defendant a signal should be given by P to enable the sheriff to arrest the defendant with the money in his possession. This programme, as agreed upon by P and the sheriff, was carried into effect; P entered the building, secured the money, marked it with acid, delivered a part of it to the defendant, gave the signal as agreed upon, and the sheriff thereupon arrested the defendant with the money in his possession. The court below instructed the jury that if it was agreed between P and the defendant that the former should enter the building and steal the money, to be divided between them, and if in pursuance of the agreement, P did enter the building and take the money and divide it with the defendant, he was guilty of burglary, and the jury should so find "without regard as to the part taken in the offense by the witness P, or as to the motives or intentions of said P." On appeal this was held error, and the conviction reversed. "If P entered the building," sid the court, "and took the money with no intention to steal it, but only in pursuance of a previously arranged plan between him and the sheriff, intended solely to entrap the defendant into the apparent comVol. 7-No. 14.
glary was committed, there being no felonious intent in entering the building, or taking the money. If the act of entering amounted to burglary the sheriff, who counseled and advised it, was privy to the offense, but no one would seriously contend, on the foregoing facts, that the sheriff was guilty of burglary."
THE Illinois statute regulating the sale of railroad tickets has been declared constitutional by two of the circuit judges of that state. The statute which was passed in April, 1875, and is entitled "An act to prevent frauds upon travelers and owners of railroads, etc.," makes the sale, transfer or barter for a consideration of any railroad or steamboat ticket or check, by any person other than the agents of the company appointed for that purpose, an illegal act, subject to fine or imprisonment. In People v. Walser, 11 Ch. L. N. 12, the defendant was indicted under this act, in the Criminal Court of Cook county. A motion was made to quash the indictment, on the ground that the act was not within the scope of the police power of the state, but was an unwarrantable restriction upon the rights of private property, and, therefore, unconstitutional, which was overruled. MCALLISTER J. MOORE, J., concurring, after discussing at length the power of the legislature to regulate the business of common carriers, says: "Nothing can be clearer than that, in this state, railroad companies, so far, at least, as concerns the safety, comfort and convenience of passengers, are proper subjects of the police power. Of this there can be no question. If the business itself be subject to the police power, then so must all its incidents and accessories be subject to it. All experience teaches that the necessities of the business require the issuing and use of tickets. They traveler and carrier as baggage-checks or wayare as necessary to the convenience of both bills in case of freight. The business and all its common incidents being proper subjects of the police power, then it follows from settled principles that the nature and character of the police regulations must be determined by the legislative, and not the judicial, branch of the government. After giving this matter much consideration, we are of the opinion that the act in question, being a matter of mere police
regulation of a public business, is constitutional and valid. There may arise cases where the contract for carriage was made in another state, which constitutional principles would prevent falling within the range of this act, but that is no ground for holding the act void as to all cases." It follows from this that the business of "ticket scalpers" is as unlawful in Illinois as is liquor selling in Maine or gambling in Massachusetts.
AMONG the rulings and oral opinions in the United States Circuit Court at St. Louis, last week, are the following:-In Goss v. Chamber of Commerce Association, a demurrer was filed to the petition, and after argument, DILLON, J., being of opinion that the defense sought to be set up under the demurrer did not fairly arise under it, advised the defendants' counsel to plead their defense specially, and bring it up in that way. McKeighan, for the defendant: "That will oblige us to confess the making of this contract, which we allege to be founded in an unlawful consideration and void." DILLON, J.: "You have evidently acquired a curious idea of pleading in this state." McKeighan: "We have acquired it from our Supreme Court." DILLON, J.: "The rule in this court is that you may file your general denial, and also your special defense; and if your special defense fails, this will not prejudice any defense you may properly make under your general denial.”—In Eisenmeyer v. Yaeger, the question was distinctly presented by demurrer, whether the naked fact that a creditor has signed a consent to the discharge of a bankrupt from a debt created through fraud, and hence not dischargeable under the terms of the bankrupt act, will bar a subsequent action by the creditor upon such debt. question appears never to have been decided in this country. The court, DILLON, J., giving the opinion orally, held that, in the absence of an allegation that at the time he consented to the discharge he did not know of the fraud, the consent to the discharge concluded him from subsequently suing the bankrupt on a cause of action, which had been filed as a claim in the Court of Bankruptcy, and on which he had taken a dividend. "As the law then stood, the bankrupt could not have been discharged without the consent of the plaintiff. His action in the premises
may be presumed to have influenced the action of other creditors, perhaps to their prejudice, and to have injuriously affected their rights. Under these circumstances, our judgment is that the plaintiff can not, after having brought about a discharge of the bankrupt by his voluntary act, be heard to impeach that discharge on the ground of fraud, unless he can show that at the time he gave such consent he did not know that the debt was created by fraud." The demurrer was sustained with leave to amend the petition by charging such fact.Fleming v. McLean, related to the law of costs. The case, a suit in equity, had proceeded to a final decree in this court, and had been appealed to the Supreme Court, where the decree had been modified, and an order made that the defendant should pay the costs of the court below, and the complainant, who had appealed, the costs of the Supreme Court. The complainant, in perfecting his appeal, had paid to the clerk the costs of the transcript, amounting to a considerable sum, and he now moved, under the order of the Supreme Court, to retax these costs against the defendant. contending that they were a part of the costs of the court below. But the court, TREAT, J., giving the opinion, concurring, denied the motion. peal is granted, the cause, in contemplation of law, has passed out of this court and into the Supreme Court, and costs expended in perfecting an appeal are to be deemed costs of
that court and not of this court.
DILLON, J., When an ap
THE SUABILITY OF COUNTIES IN THE NATIONAL COURTS.
The question whether counties are liable to suit in the national courts has several times arisen. In McCoy v. Washington County, 7 Am. Law Reg 193, a suit on railway aid bonds, which was tried before Mr. Justice Grier, at circuit in the Western District of Pennsylvania, in 1859, it was contended that the county being merely a subordinate political division of the State of Pennsylvania, was not a citizen of that state within the meaning of the Constitution or the act of Congress, and, therefore, not suable in that court. To this
Mr. Justice Grier answered: "Though the metaphysical entity called a corporation may not be physically a citizen, yet the law is well settled that it may sue and be sued in the