maintained against the corporation, because the road was in possession of trustees for the bondholders. Under the proofs the fair inference would seem to be that they were trustees of the corporation, as well as of the bondholders, and were rtnning the road to earn money to be applied in the payment of the debts of the corporation. In such case, the trustees must be regarded as the agents of the corporation, in so far as relates to the transaction of business with third persons Reversed and remanded.- Grand Tower Transportation Co. v. Ullman.

DOWER-VALUE OF PREMISES.-S, widow of S S, deceased filed her bill in the circuit court alleging that she was married to S S in 1870; that he then owned in fee a certain lot ih the town of Belleville; that in 1872 he conveyed the same to the defendants, his children; that she did not release her dower right; that in 1875 SS died; that the defendants refused to set apart her dower, and prayed that it be assigned or its value assessed. Defendants answered, admitting the allegations of the bill, and uniting in the prayer. The proofs shows there were two houses on the lot at the time of S's death, an old one and a new one. The value of dower in the old one being $58 per year, and in the new $120. Also that the property was conveyed to appellees for the purpose of dividing this and other property among grantor's children, and for no valuable consideration, and that grantor was to enjoy the rents and profits for his natural life. Defendants proved under objection of complainant, that the new house was built by grantor after the execution of the deed to them. The jury found the annual value of the dower interest at $58, and complainant appeals. DICKEY, J. (abstract of opinion): The defendants took as purchasers and not as heirs, and the value of the dower is fixed by the value of the premises at the time of conveyance and not at the time of the grantor's death. The father chose to give the property by deed rather than by will or inheritance, and must be taken to have intended the full legal effect of the conveyance. It is claimed the proof given by defendants was not admissible under the pleadings. It would have been better had this defense been set up in the answer. The objection was not made specifically on this ground. Had it been, the answer might have been amended and the objection avoided. The objection, on account of a variance, cannot be raised in this court for the first time. We do not decide whether or not such an objection would have been good made in the court below. Decree affirmed.-Stookey v. Stookey.

EQUITY FORECLOSURE-PARTIES.- This was a proceeding in equity by C. A. S. and A. J. S. against E. I. and N. W. I., her hasband, to foreclose a mortgage, executed July 17, 1868, by Robert G. Moore to complainants, to secure the payment of certain notes given by Moore to the Sharps, in payment of a certain lot in the town of Carlyle. The decree was granted as prayed, and defendants appeal. The facts before this court are as follows: One James Wightman, owner of the lot, sold it to C. A. S. S. took possession of the premises and put some improvements on them. In July, 1868, the Sharps sold to Moore, assigning to him the bond of Wightman for a deed, taking two notes at one and two years, secured by a mortgage on the premises. This mortgage, being duly recorded, in April, 1869, Moore sold to Lucius D. Cook, assigning Wightman's title bond. In the next July Wightman. upon the surrender of the bond given by him, executed and delivered to Cook a warranty deed to the premises. This deed was duly recorded. Cook occupied the premises till October, 1872, during which time he paid Hubert, who had bought Moore's notes, the note first due and portions of the second. In October, 1872, Cook conveyed the lot to appellant, Amanda E. Irish. The answer denies all knowledge of the bond

given by Wightman and of the different transaction colleged in the bill, and alleges that Mrs. Irish purchased the lot of Cook, in good faith, for a valuable consideration. The points raised by appellants are: 1st. Are the Sharps proper complainants? 2d. Can this mortgage, executed by Moore to the Sharps, be foreclosed to affect appellant's title? The first point, to be of avail, should have been made below, so that the bill could have been amended and the cause have proceeded in the name of Hubert, equitable owner of the notes and mortgages. When such an objection, if made in the circuit court, can be removed, it must be made there. On the second point, it does not appear that Wightman's bond to Cook was ever recorded. Nothing from Wightman, owner of the fee, appears on the record, but his deed to Cook. Moore's mortgage to Sharp was recorded, but Moore's name does not appear in the chain of title from Wightman. Had it been show that appellants knew Moore was in possession when he sold to Cook, then, perhaps, a duty would have devolved upon them to enquire what claim Moore had. As it is, there is nothing to show that appellants were put upon inquiry as to Moore's claim and his excution of this mortgage. It appears that Wightman never declared a forfeiture though there was default in the payments. Moore, therefore, had such an equitable estate as would pass by mortgage. His name, however, does not appear of record in the derangement of the title to the lot. The majority of the court are of opinion that appellants are not affected by this mortgage; it did not lie in the regular chain of title. Decree reversed and remanded. Opinion by DICKEY, J.-Irish v. Sharp.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]


Associate Justices.

- RIGHTS OF WIDOW AND MINOR CHILDREN.-V., owning homestead and owing debts, died intestate, leaving widow and defendant, a minor son, aged twenty years. Administrator regularly sold the land of intestate, subject to homestead rights of widow and minor son, and made deed therefor to purchaser. After death of widow, and after minor had attained bis legal majority, purchaser brought ejectment against defendant, the son. Held, under act of March 18th, 1875 (Sess Acts 1875, pp. 60 and 61), homestead of intestate may be sold by administrator for payment of debts of deceased while widow is living and children are minors, and his deed conveys the legal title thereto, subject to rights of widow to occupy during life, and until children attain their legal majority. The object of the statute was to secure a home for widow and minor children; and sale of land subject to such homestead right could in no manner interfere with them in the enjoyment of that right. After death of widow, and after minor children become of age, the grantee in deed of administrator can maintain ejectment for the homestead conveyed against such children holding possession. Reversed and remanded. Opinion by HENRY, J.—Poland v. Vesper.

NEGLIGENCE-PROXIMATE AND REMOTE CAUSEFIRE FROM SPARKS OF LOCOMOTIVE.-Sparks from defendant's locomotive set fire to prairie along defendant's line of railway, on evening of 23d of November, 1873. The grass being rank and dry, and wind high, fire ex

tended about three miles during that evening and night, burning more slowly during night because wind had been less violent. Next morning wind arose again, and blew hard, as was not unusual in that country, (Southwest Missouri), and carried the fire some five miles further, whence it reached plaintiff's farm, and destroyed property of plaintiff. In an action for damages for destruction of plaintiff's property through negligence of defendant's railway: Held, that the facts, although somewhat novel, showed prima facie negligence, on part of defendant, and that the damage by fire must be considered as the direct and natural result therefrom, such as would be reasonably anticipated, and that the high wind at that season of the year, although aiding in the spread of the fire, was neither extraordinary or remarkable, and could not be regarded as the introduction of a new agency, so as to relieve the railway company from the results of the negigence of its servants in permitting the fire to escape from its engines. Affirmed. Opinion by NAPTON, J. -Peoppers v. M., K. & T. Railway Co.

TRUSTEE'S SALE-INCUMBRANCE-IMPLIED WARRANTY IN CONTRACTS OF SALE OF REAL ESTATEEXECUTED CONVEYANCE WITHOUT COVENANTS.-T. purchased land attrustee's sale under deed of trust, and exchanged same for other land with H. before receiving deed from trustee. By agreement between all parties, trustee made conveyance direct to H., the land so conveyed, at that time, being encumbered with a lien of unpaid taxes. H. paid the taxes, and instituted suit against T. to recover amount so paid. Held, 1. Upon agreement for sale of land, in absence of special stipulation to the contrary, vendor is considered as stipulating for a general warranty. 6 Leigh, 259; 4 B. Monroe, 528; 17 B. Monroe, 520; 3 Mich. 576. While a contract for sale and purchase of real estate is still executory by operation of law, and without any agreement of parties to that effect, the purchaser has a right to demand a title clear of defects and incumbrances. Rawle on Cov. 562; 5 Baró. & Adolph. 999; 1 Mees. & Welsb. 701; 5 Selden, 543; 3 Clark, 360. But where the contract is executed, and a deed made and accepted, containing no covenants against incumbrances, vendee can not maintain an action against his vendor for injury therefrom. 2. H. having paid purchase-money, and received a deed from trustee without such covenants, is held to have waived thereby such a deed as he had the right to demand, and can not recover without an express agreement of T. to pay the back taxes. Reversed and remanded. Opinion by HOUGH, J.Heryford v. Turner.

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

DEDICATION OF LAND TO PUBLIC-ACCEPTANCE. --In order to constitute a dedication of property to the public, there must not only be an intention on the part of the owner to dedicate, but an acceptance of the same by the public. And where there was no affirmative act of acceptance on the part of a city, but the city treated the ground as private property, and made assessments on it as such, that fact was strong, if not conclusive evidence that the city had not accepted such ground as and for a public street. Opinion by WORDEN, J.-Mansur v. State.

DEED VARIANCE BETWEEN PREMISES AND HABENDUM.-In the premises of a deed were the words: "Do hereby grant, bargain, sell and convey to the said A and assigns forever," and in the habendum the words, "to be held by the said A for and during his natural life and to S A (his now wife), if she be living at the death of said A, and to her heirs and assigns in fee simple; and if she be not living at the death of said A, then to the heirs and assigns of said A forever." Held, that A took the land for life, and his heirs the fee if he should survive his wife, but if she should survive him the fee was to be vested in her; and the children of A's wife, by a second husband, were entitled to share said land equally with the children of the first marriage. Opinion by WORDEN, J.-Carson et al. v. McCaslin.

[blocks in formation]

It seems to me clear that the contents of the will can not be proved by the testimony of witnesses detailing the conversations of the dead man. Where a will is lost or destroyed, secondary evidence is admissible the same as in the case of any other lost or destroyed instrument. Its contents in such a case may be established by the testimony of a single witness who has read the will, and whose recollection of its contents is trustworthy. 1 Redfield on Wills, 3d ed., p. 348, note, and the cases there cited. I apprehend that the subscribing witnesses should be called if attainable, though they have no knowledge of the contents, to show the requirements of the statute have been complied with. The same proof should be made with regard to the execution, witnessing, sanity of the testator, etc., as in the case where the will is produced. To hold that evidence of the conversations of the testator is sufficient proof of the will would defeat the object of the statutes of wills. Furthermore, such evidence is inadmissable, on the ground that it is mere hearsay. In no case are unsworn statements admissible to show the contents of a written instrument. Grand Rapids, Mich.

No. 40.


(7 Cent. L. J. 39.)

Blackstone, Vol. II, p. 449, says: "As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee can not take the goods until he tenders the price agreed on. But if he tenders the money to the vendor and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them." A gift of a personal chattel, to be affectual must, in general, be accompanied by a manual delivery; not so in case of a sale,

there may be a constructive delivery. In the hypothetical case stated in the query, when B paid A the purchase price agreed on, one dollar, the bargain was struck. Although there was no manual delivery, the title to the inkstand passed to and vested in B.; and the subsequent refusal of A. to permit B. to take the same was a wrongful taking the possession by A., and for which an action at common law of replevin would lie, or he could abandon the contract and sue him in assumpsit for money had and received to his use and benefit. S. P. S.

Warrensburg, Mo.

No. 41.

(7 Cent. L. J. 39.)

In the case of West v. Rice, 4 Kas. 563, the court decides that "when a party to an action before a justice applies for a continuance for thirty days, with proof by his own oath that he can not, for want of material testimony which he has been unable and expects to procure, safely proceed to tria'; Held, not a matter of discretion to grant the continuance, but error to refuse it." Atchison, Kas, G. E. S.

[A similar answer to this query has been received from E., S. & S., Little Rock, Ark.]


AN American Bar Association, says the New York Tribune, is about to be organized. The suggestion came from one of the State Bar associations, and has met with the approval of men like Benjamin H. Bristow (Kentucky), William M. Evarts (New York), George Hoadly (Ohio), Henry Hitchcock (Missouri), Carlton Hunt (Louisiana), Richard D. Hubbard (Connecticut), Alexander R. Lawton (Georgia), Richard C. McMurtrie (Pennsylvania), Stanley Matthews (Ohio), E. J. Phelps (Vermont), John K. Porter (New York), Lymun Trumbull (Illinois), Charles R. Train (Massachusetts), and J. Randolph Tucker (Virginia). An informal meeting is to be held at Saratoga on the 21st August next, to consider the feasibility and utility of the projected organization. It is thought that a body

delegates, 1epresenting the profession in all parts of the country, which should meet annually for a comparison of views and friendly intercourse, may be not only a pleasant thing for those taking part in it, but of great service in helping to assimilate the laws of the different states, in extending the benefit of true reforms, and in publishing the failure of unsuccessful experiments in legislation. Correspondence in relation to this matter is invited, and should be addressed to Simon E. Baldwin, New Haven, Conn.

CONCERNING the new criminal code lately introduced into the British Parliament, and soon to become law, an "habitual criminal" writes as follows: "I rejoiced greatly when I read in section 32 of the bill the following words: An act done with intent to commit an offense, the commission of which in the manner proposed was, in fact, impossible, is not an attempt to commit that offense.' Many a time, standing in my place at the assizes, have I raised this contention. Always has the judge overruled it. My father died in a convict prison, having been sentenced to penal servitude for life on a charge of attempting to murder. He had fired a pistol at the head of a policeman, but uselessly, for the man, being a superintendent, had the skull of an elephant. The bullet was spoiled, but the policeman lives yet. My father, who was frankness itself, avowed his intent to commit,' and regretted that "the commission of it in the manner proposed was, in fact, impossible,' owing, as he pointed out, to the abnormal and improper thickness of his adversary's

[ocr errors]

skull. It was a vain contention. 'If the bone had been thinner you would now be a murderer,' said the judge. Do not let us argue on a hypothesis,' said my father; ' observe rather the facts. The bone was too strong for my bullet; but that is not my fault, and, therefore, you should not condemn me for it.' Said the judge, that is horrible impudence.' Does Sir Fitzjames Stephen mean it to be law? In the mean. time I mourn the loss of the best of parents."

A SOMEWHAT humorous criticism of the preface to Mr. J. C. Wells' book on "The Separate Property of Married Women," which appeared in our issue of June 14, p. 480, brought forth the following diatribe from the author:

SPRINGFIELD, ILL., June 27, 1878. To the Editor of the Central Law Journal: Will you please allow me space enough to say that if my work on "The Separate Property of Married Women "" can not endure the pert, conceited, reckless, impudent and false statements of one who is capable of reviewing a book without ever having seen it, and that, too, in a spirit of intolerant bigotry and causeless prejudice, and is withal capable of closing up his ignorant review with a piece of slang and blackguardism unprecedented in the history of legal reviews, then it ought to die at once. This is probably the last notice the vandal species of critics will receive from me. I have neither time nor inclination to bandy words with them. And this note I design as a notice to this effect, rather than as a reply to the remarkably ready reviewer who does not need to see a book in order to criticise it, and who is plainly incompetent even to understand a preface. J. C. WELLS.

As we entertained no ill feeling towards Mr. Wells, we saw no reason for publishing the above; but the re ceipt of the following has determined us to allow him to make himself as ridiculous as he desires:


SPRINGFIELD, ILL., July 13, 1878. To the Editor of the Central Law Journal: So it seems you are dishonest enough to allow " of your contributing editors" to make a foul, scandalous, blackguard assault upon me, destitute of every element of fairness, and of every cause of provocation, and then debar me from all reply in your pages. Well, if you can stand to manage a journal in that style, and slander a stranger with no other provocation than because he happened to write a book which may not, in all respects, tally with your notions of things, go on. One thing is certain; the article assaulting me so causelessly bears its iniquity, its unfairness, its bigotry and diabolical malice upon its face, and can do no harm with any fair-minded lawyers. It must be gratifying to the intolerant, reckless, conceited and malicious fool who wrote the slander, to see the press criticisms on the book that he can condemn so glibly without a hearing. You had better advise your hot-headed "contributing editor" to be still, and not advertise himself any further. In the main, the legal profession are fair and candid, and will think about as much of him as of a scurrilous judge who will both prejudge a cause and abuse the suitor, as Lord Jeffries used to do, who n your contributing editor seems to follow closely as a model, only he has not Jeffries' ability, except in low blackguardism, in which, doubtless, he excels the notorious and infamous judge whose blackened character stands out on the page of judicial history as a synonym of all that is unjust and vile. J. C. WELLS.

We will make no comment upon these performances. The book in question was not sent to us for review, and we are, therefore, in total ignorance of its merits, whatever they may be. But we would hazard the opinion that the writer of such letters as these must be very poorly qualified to undertake the discussion of subjects which require, in their treatment, something more than caloric and vituperation.

The Central Law Journal. reader is referred to Mr. Bump's note to the



The Supreme Court of Pennsylvania, in Bletz v. Columbia National Bank, 35 Leg. Int. 292, hold that a state court has jurisdiction of a suit against a national bank, under the act of June 3, 1874, to recover double the amount of interest unlawfully taken by it. An exhaustive opinion was filed by AGNEW, C. J., in which he introduces the discussion of the question in these words: "The question is most important to the people, who are citizens alike under both state and national governments, for if they are driven into the federal courts, the evil will be a monstrous one. The national banks are intended to do the business of the country in the midst of the people, just as others lending money and discounting paper do, whose places they have filled everywhere. They can sue and be sued in the state courts on all business done by them, secure themselves and purchase under state laws for the sale of property, and enjoy the advantage of state laws as fully as our own citizens. Therefore, unless the federal jurisdiction is exclusive, it is clear that even in a doubtful case our decision should be favorable to our own jurisdiction, leaving the doubt to be solved by the federal judiciary; for if our judgment be against it, the citizen has no appeal to the federal courts. If, however, the federal jurisdiction be clearly exclusive, it is our duty so to declare." The question is one of considerable interest, having been decided in a different way in other states. The Supreme Court of Illinois, in Missouri River Telegraph Co. v. First Nat. Bk. of Sioux City, 74 Ill. 217; the Court of Appeals of Kentucky, in Newell v. Nat. Bk. of Somerset, 12 Bush. 57, and the Supreme Court of Connecticut in State v. Fuller, 34 Conn. 280, have decided against the jurisdiction of the state courts; while the Court of Appeals of Maryland, in Ordway v. Cent. Nat. Bk. of Baltimore, 5 Cent. L. J. 84, have ruled in accordance with the Pennsylvania

[blocks in formation]

Maryland case, 5 Cent. L. J. 87.

The common law of England as to ancient lights is held by the Court of Appeals of Kentucky in the recent case of Ray v. Sweeney, never to have been in force in Kentucky. COFER J. says: "The Supreme Court of New York, in Parker v. Foote, 19 Wend, 309, said it would be difficult to prove that the rule respecting ancient lights was known to the common law of England previous to April 19, 1775: 'There were,' said Bronson J., 'two nisi prius decisions at an earlier day (Lewis v. Price in 1761, and Dungall v. Wilson in 1753), but the doctrine was not sanctioned in Westminster Hall until 1786, when the case of Darwin v. Upton was decided by the K. B. 2 Saund. 175, note 2. This was clearly a departure from the old law. Bury v. Pope, Cro. Eliz. 118.' Washburn, in his treatise on the law of Easements, 576, referring to the case of Parker v. Foote, and the foregoing remarks of Bronson, J., says that 'in Cathrop's Reports, published in 1661, it is shown that by the custom of London one might not erect a new house upon a vacant lot so as to obscure the windows of an ancient house, for the ancient house had, by the enjoyment, acquired an easement of light by prescription.' This discovery of the learned author does not militate against the conclusion reached by the New York court; but that he found no other case than that cited very strongly confirms the truth of what the court said. It was only the common law of a general nature, and not local to the kingdom of Great Britain, that was declared by legislative authority to be in force, either in New York, Virginia, or Kentucky; or, indeed, in any of the states of the Union; and as the case in Calthrop, and the only one prior in date to 1761, cited by Washburn, and presumably the only one to be found in any English book of reports of older date, was based on a local custom in the city of London, we hazard nothing in following the Supreme Court of New York in holding that the English common law respecting ancient lights never had an existence in this state. The same doctrine has been held in Massachusetts, South Carolina, Maine, Maryland, Pennsylvania, Alabama, West Virginia, Iowa, Ohio, Vermont, and Connecticut, while

in Illinois, New Jersey, and Louisiana the English doctrine prevails." That the learned judge is in error in regard to the law of Illinois and Louisiana, as to ancient lights, see 5 Cent. L. J. 113, 165.

In Matheas v. Sellers, recently before the Supreme Court of Pennsylvania and reported, 5 W. N. 518, the plaintiff agreed with the defendant to furnish him with tobacco at certain prices, which was to be worked up by the latter into cigars, the plaintiff advancing stamps and wages as the work was done and the cigars delivered. After the defendant had manufactured a portion of the tobacco, an agreement, it was alleged, was entered into under which the plaintiff was to take the cigars away when stamped, and providing for a final settlement. In an action of replevin for the undelivered cigars the plaintiff insisted that by the latter agreement the defendant had waived his right to retain the cigars as security for the balance due for their manufacture. The court held that an intention to waive the lien might be inferred from the agreement. It has long

been a settled rule of the common law that goods deposited with a tradesman or artisan for manufacture or repair are subject for the work done on them to a specific lien. Thus a tailor who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he is paid for his services. Neither is a ship carpenter bound to restore the ship which he has repaired; nor a jeweller the gem which he has set, or the seal which he has engraved; nor an agister the horse which he has taken on hire, until their respective compensations are paid. Story on Bailments, § 440, and the cases there cited. Though the right of lien probably originated in those cases in which there was an obligation, arising out of the public employment, to receive the goods, it is not now confined to that class of persons; a particular lien is given by the common law to any one who takes property in the way of his trade or occupation, to bestow labor and expense upon it. And it exists equally whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price. 2 Kent's Com. 635. It was said by HOLROYD, J., in Crawshay v. Homfray, 4 Barn. and Ald. 50, that the principle laid down in Chase v.

Westmore, 5 Maule & Sel. 180, where all the cases came under the consideration of the court, was this; that a special agreement did not of itself destroy the right to retain, but that it did so only where it contained some special term inconsistent with that right. In 2 Selwyn's Nisi Prius, 540, the rule is stated to be that the right of detaining a thing until the money due upon it be paid, may be waived by a special agreement as to the time or mode of payment, but not merely by an agreement for the payment of a fixed sum. See also McIntyre v. Carver, 2 W. & S. 392; Pierce v. Sweet, 9 Casey, 151; Macky v. Dillenger, 23 Sm. 85.


It is one of the fundamental principles of patent law, that the mere application of an old thing to a new use without any other invention, is not a patentable contrivance. Justice Story used the following illustrations of this principle: "No patent can be obtained for either the new application, or for the apparatus or machine. A coffee-mill applied for the first time to grind oats, or corn, or mustard, would not give a title to a patent for the machine. A cotton gin applied without alteration to clean hemp, would not give title to a patent for the gin as new. A loom to weave cotton yarn would not, if unaltered, become a patentable machine as a new invention, by first applying it to weave woolen yarn. A steam engine, if ordinarily applied to turn a grist-mill, would not entitle a party to a patent to it if it were first applied by him to turn the main wheel of a cotton factory. A man who should, for the first time, card wool on a common cotton carding machine, would find it difficult to establish an exclusive right to the use of it for such a purpose." The principle will be better understood by an examination of the applications of it in the various cases. In Bean v. Smallwood, 2 Story, 408, the alleged invention consisted in making, in the manner of reclining, the back of the seat of a chair at any angle required by the lock-plates and notches in the hanging-plates which received them. It was proved that this apparatus had been long in use, and applied, if not to chairs, at least in other machines of a similar nature. The patent was held to be void

« ForrigeFortsett »