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STATUTE OF LIMITATIONS.-1. A payment on an outlawed note by the administrator of one of two joint makers, does not impair the survivor's defense, under the statute of limitations. 2. The survivor can not be charged merely because he advised the exhibition of the note against the estate. Opinion by GRAVES, J.Holcomb v. Sloan.
OFFICIAL BOND-SURETIES.-The official bond of a township treasurer was drawn up naming the principal and sureties, but was not signed by the principal and was accepted without the sureties' knowledge that it was not so signed: Held, that the sureties were discharged, as the contract called for the signature of another party. Hall v. Parker, 37 Mich. 588; Wells v. Dill, 1 Mort. La. (N. S.), 592; Pothier Traite des Obligations, No. 11; Bay City v. McCormick, 23 Mich. 457, distinguished. Opinion by CAMPBELL, C. J.-Johnson v. Kimball.
RECOVERY OF INSURANCE MONEY PAID ON LOSSES. -1. Under assumpsit for money had and received an insurance con pany can recover back money paid on a claim of loss, when the policy was avoided by a false and fraudulent inventory of the property destroyed. No special count is necessary. 2. The company may sue without returning the receipt for the amount paid, that not being property, but only evidence, without intrinsic value. Opinion by GRAVES, J.Johnson v. Continental Ins. Co.
PROBATE OF WILL ACTION OF JUDGE WHEN LEGATEE. When a probate judge is named legatee in an instrument purporting to be a will, his orders for hearing and for notice of publication is good. Until the validity of the will is determined he is not actually a legatee, and the fact that a judge is interested does not invalidate formal orders that put the case on the road to determination. Richardson v, Boston, 1 Curt. C. C. 251; Washington Ins. Co., Hopk. Chy. 2: Buckingham v. Davis, 9 Md. 324; Heydenfeldt v. Towns, 27 Ala. 423. Opinion by COOLEY, J.-McFarlane v. Clark.
HOMICIDE-SELF-DEFENSE-EXPERT TESTIMONY -1. Where self-defense is relied on to justify homicide, the relative strength and temper of the parties, and other personal qualities not capable of any description, except by opinion, may be shown by witness familiar with them and capable of forming opinions. Hurd v. People, 25 Mich. 405. 2. It may be shown that the assailant was a powerful man of dangerous temper, who had threatened defendant, and that the latter appeared to be in fear. People v. Lilly, 38 Mich. 3. Expert testimony as to the effect of a pistol shot upon clothing at a certain distance must be based upon greater experience than a single shot through the witness' own clothing, without proof of the strength of the charge and without having seen similar experiments with weapons of the same or different make and calibre at the same or at greater or
APPEALS-STRANGER TO THE RECORD. Applica. tion for an injunction by appellees against the board of commissioners and the treasurer and auditor of Jefferson county to enjoin the collection of a certain tax, assessed by the board of commissioners to raise money for investment by Madison township in the capital stock of the Bedford, Brownstown & Madison railroad company. The appellants were made defendants by an order of the circuit court upon their own petition, alleging that they were directors of the Bedford Brownstown & Madison railroad company, and that they claimed an interest in said controversy as such directors, and that they were necessary parties to a complete determination of the questions involved. In the supreme court the appellees filed a motion to dismiss the appeal for the reason that appellants were not parties to the final judgment rendered below. HOWK, J.: Under section 17, of the act under which the tax in question was voted by the qualified voters of Madison township, it is certain that until the tax was levied and collected, and a legal and valid subscription had been made on behalf of said township, the railroad company did not have, and could not acquire any legal right to or interest in the said tax which it could enforce by legal process. The railroad company was not a proper or necessary party defendant in this action, nor were the directors by reason of their alleged interest as such directors. The appellants having been erroneonsly admitted by the circuit court as parties defendant, the appellce's motion to dismiss must be considered as it would be if the appeal had been taken by an active stranger to the record. The statute authorizes an appeal only by a party to a final judgment. Appellants have, therefore, no standing in this court. Appellee's motion to dismiss is sustained.-Jager v. Doherty.
EXECUTION-DISTINCTION BETWEEN IRREGULAR AND VOID.-This was a motion to set aside an execution and levy. The facts sufficiently appear from the abstract of the opinion, which was delivered by PEKKINS, J.: The motion is not.made by the execution defendant. He makes no objection to the execution or levy. The motion is made by the plaintiffs in another execution against the same defendants, with a view to subjecting the property levied on to the payment of their execution. The motion is not made for the application of proceeds, but for a judgment that the execution sought to be set aside, was void. It is admitted that a valid judgment was recovered by the appellees
on the morning of December 2d, 1875. It is not denied that said judgment was duly recorded, nor that it had been read and signed by the court before the execution issued; but the complaint is that it was not publicly read and signed in open court; and it is insisted that, for this reason, the execution was void. A demurrer to the complaint was sustained. Section 22 of the Circuit Court Act is as follows: "It shall be the duty of the clerk of the circuit court to draw up each day's proceedings at full length, and the same shall be publicly read in open court, after which they shall be signed by the judge: and no process shall issue on any judgment or decree of the court until it shall have been so read and signed." This section is directory, and the execution issued in this case, while it may have been irregular, was not void. When the statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used by the legislature shows that the designation of time was intended as a limitation of the powers of the office. Numerous cases bear upon the question raised in this case, and establish two propositions: First, that the execution may have been irregular, but was not void; second, that no one not a party to such execution can object to it. Freeman on Ex., see. 25. Judgment affirmed.-Jones v. Carnahan.
COPARTNERS-CONTRACTS.-Plaintiffs were dealing in cattle as commission merchants. One member of the firm, without the knowledge of his partners, made a contract with defendant in the name of the firm, by which the firm was to advance money, the defendant purchase and ship cattle to plaintiffs to be sold by them without commission and the profits divided. Under that contract defendant bought and shipped cattle. The transaction resulted in loss. No settlement was had between the defendant and the firm, or the contracting member thereof upon the basis of the contract or otherwise. Held, that the firm could not, ignoring the express contract, maintain an action against the defendant as an ordinary shipper upon an implied contract to pay commissions. Opinion by BREWER, J. Affirmed. All the justices concurring. -Frye v. Landers.
EVIDENCE- PRIOR DECLARATIONS OF WITNESS.1. On May 27th, 1866, C was killed while sitting in the door of his house, by a bullet from a pistol, alleged to have been discharged by one P. Held, that the declarations of the wife of the deceased made to persons one hour after the death of her husband that she recognized P as the person who killed her husband, forms no part of the res gesta. 2. When a witness is assailed, on the ground that he narrated the facts differently on a former occasion, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those on the trial. To this rule there are exceptions. Thus, where the impeachment goes to contradict the witness by prior inconsistent declarations and charges him with a recent fabrication of his testimony, it is proper to show that the same account was given by him to other persons anterior to the date of the alleged fabrication. In
order, however, that the confirmatory statements of the witness shall be admitted, it must clearly appear that they were made antecedently to the contradictory declarations given in evidence. 3. The case of Smith v. State, 1 Kas. 365, cited, as to the sufficiency of the indictment in charging the crime of murder in the first degree. Opinion by HORTON, C. J. Reversed. All the justices concurring.-State v. Petty.
INFORMATION-Change of VENUE- CERTIFICATE OF TRANSCRIPT - LIMITING ARGUMENT.-1. Where a criminal case is taken on a change of venue from one county to another, it is not necessary that the original information, or any other original paper, should be transferred to such other county, but it is the duty of the clerk of the court in which the cause is pending to make out a full transcript of the record and proceed. ings in the cause, and to transmit the same duly certified under the seal of the court to the clerk of the court to which the removal is ordered, and the defendant may then be tried upon such duly certified transcript. 2. Where the transcript of the record and proceedings in such a case appear to have been duly certified under the seal of the court, and the court below held that it was so certified: Held, that the court beiow did not commit error in so uolding, although an affidavit may have been presented to the court below showing that the affiant believed that the certificate with the seal affixed was not properly made out and attached to the transcript. 3. As a rule, in criminal cases for murder, evidence showing that the deceased was a "quarrelsome, turbulent and violent man," should be excluded, and the facts of this case do not present one of the exceptions. 4. The court below did not err in this case in limiting argument of counsel to the jury to four and one-half hours on each side. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-State v. Riddle.
INDICTMENT-Murder-EviIDENCE.-1. In an indictment for murder, where the indictment does not charge that the killing was done by means of poison, or by lying in wait, or in the perpetration or attempt to perpetrate any felony, the indictment must charge that the killing was done deliberately and premeditatedly, in order to make the same a good indictment for murder in the first degree. 2. Therefore, where an indictment for murder, charged substantially that the defendant deliberately and premeditatedly committed an assault and battery upon the deceased, by shooting him with a pistol loaded with gunpowder and leaden balls, and thereby inflicted a mortal wound, from which mortal wound the deceased died, but did not anywhere charge that the defendant committed the assault and battery, or did the shooting or killing with the deliberate and premeditated intention of killing the deceased; Held, that the indictment did not charge murder in the first degree. 3. Where an indictment for murder charges that the killing was done by John Taylor, William Brown and Thomas Craig, by shooting the deceased with pistols and revolvers, such indictment is not insufficient, because it alleges that, "said pistols and revolvers the said John Taylor, William Brown and Thoms Craig then and there in their right hands held," when they did the shooting. 4. Upon the trial of a criminal case, where the defendant is charged with murder, and the evidence tends to show that, at the time of the killing, the deceased was under arrest upon a charge of killing certain Indians, and stealing property belonging to Indiaus, and some of the evidence tends to show that the deceased was killed by Indians, and not by the defendant, and the prosecution introduced evidence tending to show that the Indians did not, at the time of the killing, believe that the deceased was guilty of killing their comrades or of stealing their property, but believed that he was
innocent thereof; Held, that the defendant may, as rebutting evidence, show that the Indiams must have believed that the deceased was guilty of killing their comrades and of stealing their property; and, for the purpose of doing this, he may show the acts and confessions of the deceased, in the presence of the Indians, when he was charged with killing the said Indians and stealing the Indians' property. 8. Where the prosecution in a criminal case introduces evidence showing a portion of a certain conversation, had between the defendant and a third person, the defendant may introduce evidence showing the rest of such conversation. Opinion by VALENTINE, J. Reversed. All the justices concurring.-State v. Brown,
A SELECTION OF AMERICAN AND ENGLISH CASES ON MEASURE OF DAMAGES. Arranged by Subjects, with Notes. By HENRY DWIGHT SEDGWICK, ESQ., Editor of "Sedgwick on Damages." New York: Baker, Voorhis & Co. 1878.
It would doubtless be impossible, among the hundreds of volumes of English and American law reports, to find a single one which does not contain at least one case in which the subject of damages has arisen. Damages are at the foundation of nearly every law suit; they are an element in the consideration of questions in almost every branch of the law. While they are the gist of those actions which are founded on tort, they are associated with a very large number of that other class which is distinguished from the former though arising on contract. "Damage cases," as they are now generally termed, are not unfrequent in the old reports, but there they are mainly confined to a limited number of subjects, such as the breach of contracts of various kinds, libels and slanders, deceits, and a not very long list of personal injuries. But in more modern times they have been largely increased. As law after law have found their way to the statute book, new actions one after another have sprung into being; not alone to increase litigation has been their effect, but to make it plain that the ancient maxim so frequently declared from the bench and with so much apparent justice and truth when coming from the mouths of the old judgesthe maxim that there is no wrong without a remedywas a good deal of a delusion, and, to a very great extent, a kind of a pious fraud. Modern invention, too, has helped to swell the list. The extension of commerce, the introduction of railroads, the invention of the telegraph, the increase of manufactures and the prosecution of public and private enterprises by corporate undertaking, has added to the list of actions, in the bringing of which damages are the object sought. To-day Mr. Edison is unconsciously making a knot which some future bench will be called upon to untie or cut, for it is not too much to say that before very long we may expect to see the telephone and the phonograph, or both, discussed in the pages of our legal reports; and the ingenuity of some judge or judges much taxed to find out the place to which these inventions properly belong, in somewhat the same way as were the resources of the Barons of the English Court of Exchequer tried when the first railroad case presented itself for the consideration of that learned and conservative body, or of the members of a no less distinguished court in our own country, when a telegraphic dispatch was first given in evidence as proof of a contract.
Yet, notwithstanding the number of cases from which the editor of this volume has made his selections, the number of what are termed leading cases, is not so large as to prevent their being presented in a book of 900 pages like the one before us. These are the
ones which not only announce some principle, but which present it with all the arguments on which it is founded, and with illustration and authority to sustain lt. Such cases as these are not to be found in every volume of reports, but they are the only ones which are entitled to a place in a collection of this character. The editor of this work has been governed by these considerations, and in his selection has been careful to take those cases only which can truly be called of leading importance in this branch of the law. Of the value to the lawyer of the study of such cases, nothing need be said here. The verdict of the profession may be read on the title page of both Mr. Smith's and Messrs. White and Tudor's collections, the former of which has gone through seven and the latter four editions in this country alone.
The compiler's familiarity with the subject of damages has well fitted him for undertaking a work of this character. About 150 cases are given, a number of which are annotated with care and ability. The different branches of the subject are divided and illustrated under the following heads: Real Estate, Carriers, Contracts for Sale, Several Deliveries, Alternative Contracts, Contracts for Work, Unauthorized Contracts, Principal and Agent, Master and Servant, Principal and Surety, Fire Insurance, Marine Insurance, Liquidated Damages, Contracts to Pay Money, Notes Payable in Specific Articles, Various Covenants, Unconscionable Contracts, Market Value, Interest, Warranties, Frauds, Conversion, Trover, Replevin, Sheriff, Torts, Intrusion into Public Office, Violation of TradeMark, Infringement of Patent, Slander, Excessive Damages, Exemplary Damages, Costs and Counsel Fees, Breach of Promise, Collision, Actions Allowed by Statute for Injuries Causing Death, Telegraphs. The book is handsomely bound, and will be a valuable and dition to the library of the practitioner.
IT has been said with even more of truth than poetry, that he who shouts too loudly for freedom is likely to have his own chains doubled, while every extreme act of the tyrant only serves to hasten his own downfall. An over-zealous female lawyer has lately fallen into this snare. She had been admitted to the bar in one court, and, therefore, supposed herself to be a "citizeness of the world," though subsequently indignant when she was referred to from the bench as a "wandering woman." At any rate, she applied for leave to practice at the bar of one of the Maryland courts, which privilege was promptly refused. An attorney of the male gender under these circumstances would have promptly taken an exception or an appeal, or at least would have proceeded to obtain his legal rights, if he had any, in a legal manner. But the down-trodden female could not just then understand the propriety of such a course, but must at once take her appeal to the assembled crowd. The judge refused to grant his consent to the holding of an indignation meeting, at which he was to be made the object of attack; but this did not at all appall the feminine courage, and so this very edifying spectacle is closed with the entrance of the bailiff and the removal of the wo-' man vi et armis. All this must be very distressing to those who are in favor of placing no obstacle to the admission of women to the bar, because it places the subject itself before the public and the profession in a not very desirable light. It is now announced that an appeal is to be taken and the whole question tested in one of the higher courts; pending which it might be well for the Maryland justices to provide themselves with a copy of the riot act.
The Central Law Journal.
SAINT LOUIS, DECEMBER 6, 1878.
In State v. Felch, recently decided by the same court, the use of the word "feloniously" in an indictment received an interesting and historical discussion. The court held that the word was not necessary in an indictment upon a statute by which any person accessory in that state to a felony committed in another state was punishable as if the fel ony were committed there. DOE, C. J., said: "When in this statute, the legislature
In Delano's Case, it was held by the Supreme Court of New Hampshire, that an attorney might be disbarred from office for wrongfully appropriating to his use money of a town received by him as collector of taxes. The statute under which the court acted gave it power to "inquire in a summary manner into any charge of fraud, malpractice or contempt of court, against an attorney, and, upon satisfactory evidence of his guilt, shall suspend him from practice, or may remove him from office." Gen. St. c. 199, s. 7. If this stat-glish signification, and acquired the meaning
ute affords a remedy only for malfeasance in the office of attorney, it does not apply to this case. "We think," say the court, "the true construction is given in Mill's Case, 1 Mich. 392, where it is held that such a statute does not limit the common-law power of the court, and that an attorney may be suspended or removed for other causes than those mentioned in the statute. An attorney is a public officer. Admission to and expulsion Admission to and expulsion from his office are regulated by law. He takes an official oath. The public is entitled to ample protection against the danger of any abuse of the great powers of the office which the public by its agents has conferred upon him. When Delano was admitted, age and good moral character were the only necessary qualifications. Legal knowledge and skill were not required. But it is indispensable that an attorney be trustworthy. And he is not trustworthy if he is capable of improperly applying to his own. use his client's money, whether he intends to return it or not. It would be an unreasonable construction of the statute, to hold that his license can not be revoked when it invites the community to trust him in a particular wherein he can safely be trusted. The legislature could not have intended to abolish the ancient requirement of his continued integrity, and require another branch of the government to continue to hold him out to the world as worthy of confidence when the holding out becomes false and fraudulent,"
Vol. 7-N o. 23.
spoke of a felony as
of a crime punishable by death or imprisonment in a state prison; and it is to be so construed in this third section. The crime intended to be charged in this case, being a state prison offence, is a felony; and the ancient rule was that the word "feloniously" is necessary in all indictments for felony, whether common law or statutory. What would "feloniously" mean in this indictment? Would it inform the defendant that, in England, felony was formerly punished by forfeiture, and generally by death? An indictment is an accusation, and not historical instruction. Would it inform him that New Hampshire punishes his crime either by death or state prison? That would be a statement of law, deficient in certainty; and an indictment is a statement not of law but of fact. 1 Bishop Cr. Pro. §§ 52, 53, 274, 275. Would it charge him with knowledge of the burglary, or an intent to assist the burglar in escaping punishment? That knowledge and that intent are fully and plainly, substantially and formally, charged in other and appropriate words. Would it signify that his knowledge, his intent, or his act, was felonious? That would be a hint concerning the penalty; and the penalty, being matter of law, need not be suggested. Would it signify that his knowiedge, his intent, or his act, was criminal? That would be an. unnecessary averment of law. Would it be a memorial of the general confederacy among Eenglish prosecutors, witnesses, juries, judges, and minis
ters of the crown, in favor of life, to prevent the enforcement of a code of two hundred capital crimes? 2 Paterson Liberty of the Subject 309, 310. It is not necessary that the grand jury should remind the accused, or the court that there is no legal or moral grounded on which such a confederacy can survive the reason and object of its existence. Darling v. Westmoreland, 52. N. H. 401, 407, 408. There was a rule requiring the word "heirs" in the conveyance of a fee. When the reason of the rule ceased, the rule ceased. Cole v. Lake Co., 54 N. H. 242, 277-290”
An interesting question is discussed in the case of Higgins v. McCabe, recently decided by the Supreme Judicial Court of Massachusetts. It was an action of tort to recover damages for loss of sight, brought by the plaintiff, a very young child, by her next friend. The declaration alleged that, before the birth of the plaintiff, the defendant was employed as a competent and skilful midwife to render services as such in the approaching confinement of the plaintiff's mother, and that, in the performance of her duties, she so negligently treated the plaintiffs child, that a disease was contracted from which it became blind. The court say: "The defendant was a midwife. The jury would not be justified in finding that she claimed to possess, or might reasonably be expected from her calling to have, the peculiar knowledge, skill, and experience of an expert. The representations of the defendant that she could cure the child with simple remcdies and washes; that she had cured other children in the same way who were similarly afflicted; and that there was no need of a doctor, were but the expression of an opinion as to the efficacy of her remedies, and did not imply that she undertook to use that higher skill of the medical profession which is required in the treatment of the most complicated and delicase organs. The question was whether she had discharged the duty which she assumed with that skill which she professed to have and with that diligence which might reasonably have been expected of her. Upon that question the fact that the service was rendered without compensation must have an important if not decisive bearing. It is
often said that a gratuitous agent is liable for gross negligence only, but withont regard to degrees of negligence it is plain that the duty imposed upon such an agent is less stringent than where the service undertaken is foundupon a consideration paid. Under the rule requiring ordinary care as applied to this case, we see no evidence of neglect in any degree. A physician must apply the skill or learning which belongs to his profession, but a person who, without special qualifications, volunteers to attend the sick, can at most be only required to exercise the skill and diligence usually bestowed by persons of like qualifications under like circumstances. To hold otherwise would be to charge reponsibility in damages upon all who make mistakes in the performance of kindly offices for the sick. Gill v. Middleton, 105 Mass. 479; Leighton v. Sargent, 31 N. H. 119; Simonds v. Henry, 39 Me. v. Phipos, 8 C. & P. 475; er, 7 C. & P. 81. * case where the defendant, as in the cases cited by the plaintiff, assumed to act as a regular surgeon or a regular practitioner Ruddock v. Lowe, 4 F. & F. 579; Jones v. Fay, 4 F. & F. 525."
155; Lamphire Haucke v. Hoop
It was not a
CONVERSION-INNOCENT PURCHASER – MEASURE OF DAMAGES.
It is a well settled rule of law that a wrongdoer acquires no title to property which he may convert to his use, as he cannot profit by his own wrong. But how far this rule affects innocent purchasers without notice and what is the measure of damages in such a case, is still somewhat unsettled.
The most recent case in point is that of the Lake Shore and Michigan Southern R. R. Co. v. Hutchins, 17. Am. Law Reg. 578, decided by the supreme court commission of Ohio. In this case the plaintiffs were possessed of a fine tract of timber land, from which the timber was taken and converted into railroad ties and sold to the railroad company, by trespassers. It was claimed by the company that they were only liable for the value of the timber as standing before the conversion by the trespassers. On the other hand it was contended that as the wrong-doers had no title, the company could obtain none by purchase from them,