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ranty, is binding.-ROBINSON & Co. v. BERKEY, Iowa, $9N. W. Rep. 434.
197. SALE – Warranty. – A complaint alleging that plaintiffs informed defendant of the purpose for which tbey wanted : boiler; that he informed then that he had just what they wanted, a secondband boiler, wbich was better than a new one; and that they, relying on his statements, pald bim the price therefor, sufficiently alleges an implied warranty that the boiler was fit for ibe purpose for which it was bought.-FITZMAURICE 7. PUTERBACGH, Ind., 45 N. E. Rep. 524.
198. SALE OF GOOD WILL-Action -- Pleading.-Under the system of pleading which prevails in this state, an action may be brought against one who has sold out a given business, and contracted not to again carry on the same in a particular locality, both to recover such damages as may have accrued to the plaintiff from a breach of the contract up to the bringing of the action, and to restrain the defendant from a further violation of his agreement.-SWANSON V. KIRBY, Ga., 26 S. E. Rep. 71.
16. SCHOOLS-Validity of Contracts.-A contract for placing certain apparatus in a school building at a specified price, subject to its withstanding satisfactory fests, is not an appropriation of money, within the meaning of a city charter providing that all appropri. ations made by the board of education shall require a two-thirds vote of all the members,-SHORT CONRAD Co. 7. 8CHOOL DIST. OF EAU CLAIRE, Wis., 69 N. W. Rep. 337
20. TAXATION - Assessment Roll.-In an action to Enforce a lien for taxes assessed by the plaintiff city, proof that the assessment roll had been regularly cer. titied was sufficient, prima facie, to authorize a decree of foreclosure against the defendant for the non-pay. inent of taxes.-CITY OF OLYMPIA V. STEVENS, Wash., e Pac. Rep. 11.
301. Taxation-Railroads-Sale for Taxes as "Lands." -For
purposes of taxation, a railroad is "land," and under Act Feb. 9, 1895 to dispose of lands which have been, or may hereafter be, sold for taxes and bid in for the state, and which bave not been redeemed or pur. chased from the State," a certain number of miles of å ral road, apportioned by the State board of assess. mebt to a certain county, which have been sold for tases under orders of the probate court of such county and bid in for the State, may be sold as other lands.-PCRIFOY V. LAMAR, Ala., 20 South. Rep. 975.
22. TAXATION- Tax Sale.-Under Acts 1891, $ 73, providing that no sale of real property for taxes shall be Invalid on account of the same having been charged In any other paine than that of the rightful owner, a tax deed duly issued is effective ay against a prior mortgage, even though the mortgagee had no notice of the sale.-POWELL V. SIKES, N. Car., 26 S. E. Rep.
33. Taxes--Payment under Protest.-A payment of Illegal taxes, made under protest, and to prevent the issuing of a tax warrant therefor, is not a voluptary payment, and may be recovered back, notwithstand. ing no warrant or other process had been actually is. sued for the collection of the game.-BOARD OF COM'RS OF WYANDOTTE COUNTY V. Kansas CITY, FT. S. & M. R. Co., Kan., 46 Pac. Rep. 1013. 14. Tax Sale-Annullment.-Section 1610, Gen. St. 184, provides that when a tax sale is declared void by 1 judgment of the court, stating for what reason the cale is annulled, the amount paid the State at the tax sale or for the tax title shall be refunded, with interest thereon: Held, this section does not apply to eases where, as between the party purchasing the tax title and tbe owner of the land, such purchase is merely a payment of the taxes.-EASTON V. SCHOFIELD, Mind.,
N. W. Rep. 326.
5. TENDER.- Where a debtor states to his creditors log in which the conversation occurs, and is ready to Bag the sum admitted by him to be due, but the cred
15. PRINCIPAL AND SCRETI – Receiver's Band-3 ability of suretles op & receiver's bond : 1000 otorced by independent action against 1. GENTEKY, N. Car., 26 8. E. Rep. 43. IN PRINCIPAL AND STRETT-Release of Pen
' tent was obtained against the presse juortion bood, and property sufficient to set me levied on. The plaintiff the agreed to je levy, Facute tbe judgment, and tale itra tot against the principal and sureties, and it 141;1>unt thereot out of the suretles: Beldebet please of the levy, the sureties were rele! ability - THOMAS, WASON, Colo, 16 Pac. Res
149 PUBLIC LANDS - Patent Issued by Mistake der of a certificate of entry lesued by the Cater made af davit that he had made this spect to the land be intended to puretin bought he was entering. The entry was seis ertificate surrendered and canceled, and the aoney refunded to him. Afterwards a patent va dvertently made out, and sent to the local is : ut before any acceptance on tbe part of a co aan the mistake was discovered, and the puoi called and canceled: Held, that the title 484 from the United States.-W00D 5. PITTILL South. Rep. 972. 190. Qro WARRANTO.-In quo rearranto, it is ont on the respondent to show good title he functions of which be claims to ere · POWLES, Mo., 37 8. W. Rep. 1124. 191. RAILROAD COMPANY – Personal Inc.ction for personal Injuries, where the corp'en. ges that defendant corporation owned ando rastroad, and "permitted one of its truibe to be ver and upon its said railroad by persons de control and management of said train de
ominitted by defendant," and that plainti ired in a collision caused by those in charge ndant's train, it shows such a relation of data. ithe train and its operation as to render des *sponsible for the negligence of those openta IGHLAND AVE. & B. R. CO. V. SOUTH, Ala, 2 ep. 1003. 192. RAILROAD COMPANY - Street Ral ence.- Where the trial judge charged last Qty of the managers of a car operatert lotors, at a bigh rate of speed, 10 give jui ! the approach of the car, the 10 hich duty was evidence of negligeber, da roximate cause of the injury complained cl. F. onable, beld, that the charge was tree trond ONSOLIDATED TRACTION CO. V. CHESOSTIT!! ti. Rep. 1067. 193. RAILROAD COMPANY - Violation ty.-Under Sand. & H. Dig, s bu ads to a penalty, to be recovered bstimit torney in a civil action, for failure to com ction 6196, in regard to ringing bells and ac histles, it is error for the court to try & TENE ich act as a crime.-KANSAS CITY, FT. STATE, Ark., 37 8. W. Rep. 2017
itor refuses to receive it, it is a good tender, though the money be not actually produced.-SMITH V. OLD DOMINION BUILDING & LOAN ASSN., N. Car., , 26 S. E. Rep. 40.
206. TRESPASS-Possession Evidence. The mere fact that a person claiming under an invalid lease bas changed the locks upon the leased building does not show such an actual possession as will render the owner of the paramount title guilty of trespass in tak. ing possession.-RYAN V. SUN SING Chow Por, III., 45 N. E. fep. 497.
207. TRESPASS TO TRY TITLE-Recovery for Improve. ments. -Under the statute governing the recovery for improvements made in good faith, in an action of trespass to try title, several defendants in an action, claiming separate portions of the land sued for, which have been separately improved, cannot unite in mak. ing a single claim for all their improvements together, but each must make his own claim separately; and, on recovery by plaintiff, judgment should be rendered ac. cordingly.-BENSON V. CAHILL, Tex., 37 8. W. Rep. 1088.
208. TRIAL Instructions – Preponderance of Evi. dence.-In trover for conversion of timber, to which defendant pleaded limitations, an instruction requir. ing plaintiff to prove by "clear" preponderance of the evidence that he had commenced his action within the period of limitations, in which the jury are also told that plaintiff must prove his right to recover by evidence that preponderates, so that their minds are not left unbalanced, and so that they “know" his right to recover exists, is erroneous, as requiring too strict a degree of proof.-HOFFMAN V. LOUD, Mich., 69 N. W. Rep. 231.
209. TRIAL-Juror-Disqualification.-A resident of a county is not disqualitied on account of interest to act as juror in an action to recover land from the county. -EASTMAN V. BOARD OF COM’RS OF BURKE COUNTY, N. Car., 26 S. E. Rep. 39.
210. TRIAL-Jury-Action-Equitable Defense.-Rev' St. 1894, $ 412, provides that issues of law and of fact in causes that, prior to June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court, and issues of fact in all other causes shall be triable as the same are now triable; that, in case of the joinder of causes of action which, prior to said date, were of ex. clusive equitable jurisdiction, with causes of action or defenses, which, prior to said date, were designated as actions at law, and triable by jury, the former ehall be triable by the court, and the latter by a jury, unless waived, etc.: Held that, where a complaint states both equitable and legal causes of action, in separate counts, the causes of action may be severed, and those of a legal character be tried by a jury.-FIELD V. BROWN, Ind., 45 N. E. Rep. 464.
211. TRIAL-Personal Injuries-Physical Examination. -If plaintiff, suing for personal injuries, can on motion of defendant, be compelled to submit to a phys. ical examination by a surgeon, it should be by one agreed on by the parties or selected by the court, and not one who has already testified against plaintiff.HOUSTON & T. C. R. Co. V. BERLING, Tex., 37 S. W. Rep. 1083.
212. TRUSTS-Creation by Deed-Married Women.Where a deed conveyed land to a named person, in trust for a married woman for life, and at her death to her children then living, "with power in said trustee, by and with the written consent of the (life tenant), to sell said property, and reinvest the same in other property, subject to the same limitations and restrictions," the power thus created conferred upon the trustee a special personal trust, and was therefore one which did not pass to a successor.-SIMMONS V. MCKINLOCK, Ga., 26 S. E. Rep. 88.
213. TRUSTS – Logs of Corpus - Apportionment. Where a portion of a fund held in trust for the benefit of one person for life and another in remainder is lost by reason of the failure of the business in which it was
194. RES JUDICATA-Judgmenton De numele ent for defendant, on demurrer to C0213 e recovery of land, on the ground that tas Os that defendant was entitled to the
dicata as to defendant's right to curtesy, BHS
neous.--LUTTRELL V. REYNOLDS, frh.,
195. SALES-Contract-acceptance.holesale merchant of an order for the ods is not shown by evidence that is ote to the buyer, acknowledging the meer der, and stating that it should bare precis
that he has the money in the bank in the same build.
10.-MANIER V. APPLING, Ala., sonte. Bez
96. SALES-Contract - Waiver 01 117.97"
sion that the failure of the buyer ti : achinery at the place of delivery, os.
e contract, shall be & waiver of the
made w mt Law Journal
moder w I FEBRUARY 3, 1897.
in other w
vestor ol! lived his tbe linois which Andie Courts in the cases ance wit
la Sari & Loan Co., and terms to et tervational Loan & lo- those offer - Od out ab error quite too borrower. i peters of building and loan | not to be here. viz., the idea that to anytálca up issue what is called under lisi stock which, by agree member, a', garded as full paid at pose ! 1 [u2.. the future. Slight re. the clasy to j show the utter legal ions are link using and loan association officers of
coce the date of the mac whom see!:. di Such time must, in the restrictives
per bent, be undeterminable Scary dependent upon the
invested, the loss is to be apportioned between the life tenant and the remainder-man, so as to entitle the life tenant to a portion of the fund received on settle. ment of the business, to make up for tbe loss of income during the time the business was being settled.GREENE V. GREENE, R. I., 35 Atl. Rep. 1042.
214. TROST DEED - Action to Set Aside-Parties.Where the owners of property convey it to a trustee upon specified terms and conditions, and one of them brings an action against the trustee to have the trust deed annulled and the trustee enjoined from acting or claiming thereunder, the other owners are necessary parties.-ROBINSON V. KIND, Nev., 47 Pac. Rep. 1.
215. TRUST DEED - Power of Sale. - Where a deed to realty expressly recites that it is inade to secure a specified promissory note, payable to the grantee or order, and confers upon “the holder of said note" a power of sale, it is sufficiently certain that such deed intended to copfer, and did confer, this power upon the original grantee therein, whether, as matter of law, the power would or would not pass to his as. signee of the note.-RAY V. HOME & FOREIGN INVESTMENT & AGENCY CO., Ga., 26 S. E. Rep. 56.
216. USURI-Liability of Payee. – Under Code, $ 3$36, declaring that "the taking, receiving, reserving, or charging" a greater rate of interest than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest, and in case a greater rate of interest has been paid," the person paying it may recover the amount so paid, etc., the mere contracting for usury forfeits all interest, and, in addition, its actual acceptance renders the payee liable for double the amount received by him.-SMITH V. OLD DOMINION BUILDING & LOAN ASSN., N. Car., 26 S. E. Rep. 42.
217. USURY-Loan to Pay Usurious Debt.- Where the lender of money neither charges nor receives any more than the legal rate of interest, the fact that the money was, with his knowledge, borrowed for the purpose of paying a debt infected with usury, due by the borrower to a third person, does not make the loan usurious.THOMPSON V. FIRST STATE BANK OF DAWSON, Ga., 26 S. E. Rep. 79.
218. VENDOR AND PURCHASER-Assignment of Lien.A vendor's lien on land for which a general warranty deed has been executed by the vendor to the purchaser is assignable.- DICKASON V. FISHER, MO., 37 S. W. Rep. 1114.
219. VENDOR AND PURCHASER - Damages. Where there is a contract to convey unimproved land with warranty of title, and the vendee, before conveyance is to be inade, erects buildings upon the land without the request of the vendor, in an action on contract to recover damages for failure to convey, the vendor's title proving defective, the value of the buildings cannot be recovered by the vendee.-GERBERT V. CONGREGATION OF THE SONS OF ABRAHAM, N. J., 35 Atl. Rep. 1121.
220. VENDOR AND PURCHASER-Specific Performance. -Under a parol contract for the purchase of lands, part payment of the consideration, and delivery of possession of one of the parcels included in the con. tract, are sufficient to enable the purchaser to enforce a specific performance of the contract as to all the parcels.- BARTZ V. PAFF, Wis., 69 N. W. Rep. 297.
221. VENUE IN CIVIL CASES. Under Sand. & I. Dig. $$ 7379, 7381, providing for change of venue in civil cases to a county “to which there is no valid objection," a judge of the circuit court may change the venue to a county outside of his judicial circuit.PALATIN INS. 00. V. EVANS, Ark., 37 S. W. Rep. 1016.
222. WATERS- Irrigation Abandonment.-An aban. donment of an appropriation of water for irrigation by a locator on goverpment land is shown by evidence that be quitclaimed his possessory right to the land without reservation of the water right, placing his grantee in possession of both, and that he left the State for three years, and claimed no interest in the
water until after his return.- NICHOLS V. LANTZ, Colo..
223, WILLS-Construction. Testator gave bis wife a
224. WILL Devise. - Where there is a devise to the use of the “Methodist Episcopal Church," and it ap. pears that there are two organizations to wboin the designation may apply, evidence is admissible to show that the legal name of neither organization comes within the very words of the will-one being “Trustees of the Methodist Episcopal Church;" the other, “Methodist Episcopal Church South,"—and that both were commonly known as the “Methodist Episcopal Church."-TILLEY V. ELLIS, N. Car., 26 S. E. Rep. 29.
225. WILLS Devise of Mortgaged Land. - A specific devise of land, mortgaged by testator to secure his own debt, prima facie imports an intention that the debt shall be satistied out of the general personal assets.-TURNER V. LAIRD, Conn., 35 Atl. Rep. 1124,
226. WILLS Extrinsic Evidence. Testator be. queathed to his wife, in trust for her maintenance and the maintenance of their unborn child, "12 shares in the steam barge J;" to the unborn child, in trust, 4 shares, which, should the child die before coming of age, were to be divided among four persons; to each of his daughters 4 shares; and to his two sisters I ghare, to be divided among four other legatees at their decease. It appeared that testator owned no such property is the barge referred to, which belonged to a transit company, and was its sole property; that testator owned 600 shares of stock in said company, of the par value of $50; that he had always spoken of his interest as shares of $1,000 each, and that when he drew his will he handed to the scrivener a memorandum io which he referred to the stock as 30 shares stock steainer J, $30,000:" Held, that "shares of stock in the steam barge J” should, in each bequest, be construed as 20 times that amount of stock in the transit company.-OADES V. MARSH, Mich., 69 N. W. Rep. 251.
227. WILL-Indefinite Charitable Bequest.—A bequest of the residue of testator's estate to "humanity's friend, B, to use and expend the same for the promotion of the religious, moral, and social welfare of the people in any locality, whenever and wherever be may think most needful and necessary," since it includes objects not charitable, must fail for indefiniteness.LIVESEY V. JONES, N. J., 35 Atl. Rep. 1061.
228. WILL8-Revocation-Divorce.--An absolute rev.
on cross-examination, to a collateral question as
The que Pilth. The Illinois courts hold marriage in a lice mases that such associa. upon the la
Pe to issue what is known The Suprema * It follows, necessarily struggled w sta bare not power to is- Carey Adm. nin prenent that at any time being sollie va se je talent of the face value peared tha:
sal, biş earnings, or in- long time eine fully paid. In the riage contra
i the case that a building as houseket) 22'n capnot in advance know of the city o in those the face amount of immediately mach the earnings thereon, tract she mi " at sa punt actually paid, will benceforth u csuse what amount or
same sleepir sie uaduct of the business, I getber as bu a cannot be known in ad that it was a
y and agreements of marriage *
Blaseng to the effect that after could move foto tertain sum, less than the keeping, in
BAACKE V. BAACKE, ,
con sto cipes and void.
el be considered full that city.
The prove that t tepugnant to the statute known to ou created, all dence was ("}
tract was ke of the association. The licly assume Ricae which does not in. selves out to
upon the part of the in. | but, on the brement pot malum in se,
Therefore, the courts that their fo beeits received by the as. housekeeper arrangement which it state of fact
so as to lear
ter until after bis retoro.- NICHOLA 1. LANTI, Pac Rep. 70. 23 WILLS-Construction. - Testator gave hanby lehetate, and directed that the remainder in Fidel equally amouk his surviving children imr beins," sbare and share alike: Heitere
19 of survivorship related to the death of il bot to the time of the widow's death.!!121 HIEDERICH, III., 45 N. E. Rep. 49%. .? WILL - Devise. - Where there is a deriet ip of the "Methodist Episcopal Church," idor ir that there are two organizations to signation may apply, evidence is admis. I * that the legal name of neither orzan ::: 1within the very words of the will-UE ruuteps of the Meinodiet Episcopal Charta
er, “Methodist Episcopal Church south, "-doi to Were commonly known as the "Vetbolisté icburch."-TILLET 5. ELLIS, N. Car., 28.01
35. WILL8 – Devise of Mortgaged Land. -
ferred to the stock as 30 sbares stock site-
that amount of stock in the transit 2002 ES V. MARSH, Mich., 69 S. W. Rep. 91.
WILL-Indefinite Charitable Bequest.-s being he residue of testator's estate to "u240p 1d, B, to use and expend the same for the 142 of the religious, moral, and social welfare o
Contral Law Journal. made with the investor is not the alleged con
tract which it entered into with him, but the
money which had been actually paid by him ; ST. LOUIS, MO., FEBRUARY 5, 1897.
in other words, as the case stands, the in
vestor obtained a loan from the association, Decisions recently rendered by the Illinois which should have been made only in accordSupreme and Appellate Courts in the cases ance with its chartered rights, so that the of Rhodes v. Mo. Sav. & Loan Co., and terms given to him should not be variant from Wierman v. The International Loan & In- those offered to every other stockholder and vestment Union, point out an error quite too borrower. The money paid by the investor is common to the managers of building and loan not to be confiscated, but he is not entitled sesociations, everywhere, viz., the idea that to anything which the association had not, such a9sociations may issue what is called under its charter, a right to accord to every "paid up" stock, or stock which, by agree- member, and he is subject to the burdens imment, shall be regarded as full paid at posed upon every member and borrower of à certain time in the future. Slight re- the class to which he belongs. These decisfection will serve to show the utter legal ions are timely and should be heeded by the incapacity of a building and loan association officers of building associations, many of to determine in advance the date of the ma- whom seem to have little appreciation of the turity of its stock. Such time must, in the restrictive powers of such organizations. nature of the investment, be undeterminable shead, being entirely dependent upon the The question of wbat constitutes a valid earnings of the stock. The Illinois courts hold marriage is often difficult of determination in both of the above cases that such associa- upon the facts involved in particular cases. tions have no power to issue what is known The Supreme Court of Minnesota recently * "paid up” stock. It follows, necessarily, struggled with a problem of this kind in that such associations have not power to is. Carey Adm. v. Hulett, the facts of that case sue stock with an agreement that at any time being somewhat out of the ordinary. before the actual payment of the face value peared that the respondent bad been for a thereof such stock shall, by earnings, or in- long tine prior to the execution of the marterest thereon, become fully paid. In the riage contract in the employment of Hulett nature of things it is the case that a building
as housekeeper, at his farm, some miles out and loan association cannot in advance know
of the city of Duluth. Her testimony is that that at any period before the face amount of
immediately after the execution of this constock has been paid the earnings thereon,
tract she moved into his room, and that from when added to the amount actually paid,
will henceforth until his death they occupied the make it full paid, because what amount or
same sleeping apartment, and cohabited toper cent. will, in the conduct of the business,
gether as husband and wife. But she admits be actually earned, cannot be known in ad
that it was agreed between them that their vance. All contracts and
agreements marriage was to be kept secret until they building associations to the effect that after
could move into Duluth and go to housethe payment of a certain sum, less than the tace value, stock shall be considered full
keeping, in a house which Hulett owned in that city.
While a feeble effort was made to paid, are therefore ultra vires and void. The
prove that their marital relation had become contract being one repugnant to the statute
known to one or two persons, yet the eviunder which the corporation was created, all
dence was conclusive that their marriage conpersons are chargeable with notice that it was
tract was kept secret; that they never puben frithin the powers of the association. The licly assumed marital relations or held themContract, bowever, is one which does not involve moral turpitude upon the part of the in
selves out to the public as husband and wife,
but, on the contrary, conducted themselves but malum prohibitum. Therefore, the courts
so as to leave the public under the impression also held that the benefits received by the as
that their former relations of employer and sociation under the arrangement which it
housekeeper remained unchanged. Upon this state of facts the contention of the appellants
be in any locality, whenever and whererer det k most peedful and necessary,” since it... cts not charitable, must fail for indefiniter SEY V. JONES, S.J., 35 Atl. Rep. 164
Wills-Revocation-Divorce.-An abseiten on of a will cannot be implied bę law tham ining of a divorce from the testator of bir
the making of the will, the death of our ! ren, for whom provision was made in der he birth of Ihree cbildren to such deceased
to the testator's death. – BAACKE F, B14123 69 N. W. Rep. 303.
W'ITNE88-Impeacbment. The abs#t? o detal
in cross-examination, to a collateral quei ** itements by bim showing his ill will be tiif, does not bind plaintiit, but ie mas, nes olimpeachment, sbow by other pridede le
at made the statements.-CATHET F. SHELUI
r., 26 S. E. Rep. I.
WITNESS-Interest - Competency.-112
%, eruployed to collect a promissory pole
restor. It is an agreement not malum in se,
DO contract with his client as to the le charged, but expects to look to the data Table compensation, is not interesteu * 30 as to disquality bim from testif Fine 26 or the plaintiff, This is true, although 411
tay have testified that he had no other fiets?
Itscept the 10 per cent. in the pole INI,
SON V. BENNETT, Ga., 26 S. E. Rep. 55.
the State of New Jersey and, to tra!" sules: that a classification upou, theo
case at or
Ty into the private opin- money• 29 1 be party is not such as the dividual, an: actional construction will espres , tation of tbe C'nited trustee of an "forbids'any State to the murov, a
would be in sin its jurisdiction the
upon any se laws, and it certainly S. YAX, 4 To winstruction of that pro- court w Ithe laws which are oper:
theless, trees in which impress them
isted betwie el, without regard to the with pustie" 23 day. Accepted au
lan wbo Id constitutional limita.
form bor: that 'a statute would toistratura which would
or bigbert on a class.
upon ans and
good faith kuliar rules, or impose to the tru»l 31 anligations or burdens,
its low in cir, Jacobu-t... is. C. 13.
v. Harnean, *WE Ab Kow v. Nupan, 5 Atl. Rep. 7!
X. E. Rep. 45
1119; Es ir pe basteration selects individ. No. 7,417; P. :
313; 2 Wer Perry, Trueta,
whose derin sa uriens . It singles out such a state,
absolutely lia's them, none of
the same class are exCest. Lim. (5th ed.) p.
was that there was no marriage, notwithstand- NOTES OF RECENT DECISIONS.
45 N. E. Rep. 550, decided by the Court of public assumption of marital relations.
Appeals of New York, was an action for asThe Minnesota court say that they do not sault wherein it appeared that plaintiff tendso understand the law. The law, they say, ered a five-dollar bill to defendant's street views marriage as being merely a civil con- car conductor in payment of a five-cent fare, tract, not differing from any other con- stating that it was the only money he had tract, except that it is not revocable or disso
with him, and that the conductor refused to luble at the will of the parties. The essence change it, and ejected him. It was stipuof the contract of marriage is the consent of lated that defendant had a rule (not brought the parties, as in the case of any other con- to plaintiff's notice) requiring conductors to tract, and whenever there is a present perfect furnish change to the amount of two dollars, consent to be husband aud wife the contract but that there was no rule forbidding conof marriage is completed. The authorities
ductors to make change for a larger amount. are practically unanimous to this effect. There was no evidence of a custom on the Marriage is a civil contract jure gentium to
part of plaintiff or the public of tendering to the validity of which the consent of parties defendant five dollars in payment of a five cent able to contract is all that is required by nat- fare, and receiving the change, but plaintural or public law. If the contract is made iff testified that on a former occasion, and per verba de presenti and remains without co
on another line, he had offered a five-dollar habitation, or if made per verba de futuro bill for his fare and that it had been changed and be followed by consummation, it amounts for him. It was held that the tender was to a valid marriage in the absence of any unreasonable, as a matter of law. The only civil regulations to the contrary. The maxim
case cited as holding for the plaintiff was of the civil law was "consensus non
Barrett v. Railway Co., 81 Cal. 296, 22 Pac. bitues facit matrimonium."
Rep. 859. As to that case the New York court The whole law on the subject is that to
says that “we agree with the learned Surender competent parties husband and wife
preme Court of California that a passenger they must, and need only, agree in the pres
upon a street railroad is not bound to tender ent tense to be such, no time being contem
the exact fare, but must tender a reasonable plated to elapse before the assumption of the
sum, and the carrier must accept such tender status. If cohabitation follows it adds noth
and furnish change to a reasonable amount; ing in law, although it may be evidence of
but we cannot assent to the conclusion that a marriage. It is mutual present consent law
tender of five dollars is a reasonable sum. It fully expressed which makes the marriage.
is quite possible that there existed local reaSee, also, the leading case of Dalrymple v.
sons for the decision in California, Dalrymple, 2 Hazzard Rep. 54, which is the judge writing the opinion suggested that the foundation of much of the law on the subject.
five-dollar gold piece was practically the lowIt is there held that an agreement to keep
est gold coin in use in that section of the the marriage a secret does not invalidate it,
country.” although the fact of secrecy might be evidence that no marriage ever took place.
CONSTITUTIONAL LAW The only two cases in which anything to
-In Middleton v. Middleton, 35 Atl. Rep. the contrary was actually decided, seem to
1065, decided by the Supreme Court of Erbe Regina v. Millis, 10 CI. & F. 534, and
rors and Appeals of New Jersey, it was held Jewell v. Jewell, 1 Hun (U. S.), 219, the
that an act permitting a limited divorce for court in each case being equally divided.
adultery or desertion, attended by special But these cases have never been recognized
onsequences with regard to property rights, as the law, either in England or in this coun
on the application of a person holding contry.
scientious scruples against absolute divorce,
**** page 362, par. 1, 12
att married offenders, and list rules, and imposes
4 h all other equal of.
there a different result is
Ta happen to hold certain
on the part of one
This attached to the
art of another, there plied to that offender 197's the spirit of the consti. Dragi of the United States."
DAN:TRATOR'S LIABILITY | in Texas, man
13 ds Bask.-The Sq. such mortgage
has this to
pengton decide, in Inre Si Pac. Rep. 30, that ad
la money deposited to god faith, in a solvent
the property, it which afterwards be. and enforcemer
remark, howeve enforcement in situated in Tex
In support of it is claimed the in Iowa, where
de court says in part:
Pac. Rep. 125, this court
liable for the funds by counsel, aho
hip him in a bank which at
Counsel for the treas.
merous cakes, in which it Tex. 479, 8. W
Ryan v. Rauw
ins, administrators, and
oder auch direnmstances; wbich, in our
some of the case
CENTRAL LAW JOURNAL.
NOTES OF RECENT DECISION
the constitutions of the State of New Jersey
and of the United States; that a classification RULROAD COMPANY-STREET RAHA
defined only by inquiry into the private opinREASONABLENESS OF RULES-TENDER TIL
ions of an offended party is not such as the -Barker v. Central Park, N. & E.PRO
principles of constitutional construction will 1 N. E. Rep. 550, decided by the Comt sustain. "The constitution of the United Appeals of New York, was an action te: States," says the court, "forbids any State to ault wherein it appeared that plaintif 2 deny to any person within its jurisdiction the rell a five-dollar bill to defendant's a
equal protection of the laws, and it certainly ar conductor in payment of a fire-27 b seems to be a true construction of that protating that it was the only money k - hibition to hold that the laws which are operrith him, and that the conductor ret.se ative should be laws which impress themhange it, and ejected him. It wait
selves equally upon all, without regard to the ated that defendant had a rule (not b:
individual opinions of any. Accepted auplaintiff's notice) requiring conduta
thorities, in treating of constitutional limita. urnish change to the amount of two dif
tions, bave laid it down that a statute would
not be constitutional * itt that there was no rule forbidding
which would select individuals from a class,
and 11(tors to make change for a larger and
subject them to peculiar rules, or impose
scruples, subjects them to a peculiar rule of reme Court of California that af.accountability, and imposes upon them con
sequences from which all other equal of
eoders are free. Where a different result is mm, and the carrier must accept suct of provided for dereliction on the part of one
person from that which is attached to the
same dereliction on the part of another, there nder of five dollars is a reasonable satt is a discrimination applied to that offender
which is contrary to the spirit of the consti-
and, in referring to the line of authorities thus relied upon, this court said: “The distinction is very clear between the liability and duty of one receiving moneys as a guardian, for the benefit of a private in. dividual, and the liability imposed by statute and by express undertaking upon a public officer, as in the case at bar. As to the former, ‘be is merely the trustee or agent of the private parties interested in the money, and no greater or bigher responsibility should be imposed upon him than would be imposed upon any agent or trustee.' People v. Faulkner, 107 N. Y. 488, 14 N. E. Rep. 415.” It is true that this court was not called upon in that case to decide the question involved in the present case, but it is, nevertheless, true that we recognized that a distinction ex. isted between the liability of a public officer dealing with public moneys and that of an executor or guard. ian who deals with the funds of individuals, and this recognition was not simply mere dictum. The uni. form holding of courts has been that executors, administrators, and guardians are bound by no greater or higher responsibility than tbat which is imposed upon any agent or trustee; and, where such a one in good faith deposits money in a bank of good repute to the trust account, he ought not to be held liable for its loss in consequence of the failure of the bank. Jacobus v. Jacobus, 37 N. J. Eq. 17; Twitty v. Houser, 7 S. C. 153; Cox v. Roome, 38 N. J. Eq. 259; Norwood v. Harness, 98 Ind. 134; In re Law's Estate (Pa.), 22 Atl. Rep. 831; People v. Faulkner, 107 N. Y, 488, 14 N. E. Rep. 415; Moore v. Eure, 101 N. C. 11, 7 S. E. Rep. 471; People v. Walsen (Colo. Sup.), 28 Pac. Rep. 1119; Ex parte Jones, 4 Cranch, C. C. 185, Fed. Cas. No. 7,443; Pom. Eg. Jur. $ 1007; Schouler, Ex’rs, s 313; 2 Woerner, Admr., p. 711; 3 Redf. Wills, 394; 1 Perry, Trusts, $ 443. While many of the courts from whose decisions we have cited hold public officers, such as State, county, and township treasurers, to be absolutely liable for all public money received by them, none of them (so far as we have been able to discover) have held that executors or trustees are bound by a similar obligation.
There was no evidence of a custon 2 art of plaintiff or the public of tenien efendant five dollars in payment ofada ire, and receiving the change. but I testified that on a former occasi. 1 another line, he had offered a fire ill for his fare and that it had been chap or him. It was held that the tender a ureasonable, as a matter of law. The ise cited as holding for the planit cirrett v. Railway Co., 81 Cal. 29. 2:* op. 859. As to that case the New York !!'s that ''we agree with the learu
pon a street railroad is not bound to le exact fare, but must tender a tis=
id furnish change to a reasonable in
quite possible that there existed loaie ins for the decision in Californis. dge writing the opinion suggested the 'c-dollar gold piece was practically i t gold coin in use in that section of untry.”
CHATTEL MORTGAGE-INSOLVENT CORPORATION-LAW OF PLACE.-An important point decided by the Supreme Court of Texas in Fowler v. Bell, 37 S. W. Rep. 1058, is that a chattel mortgage executed in Iowa by a corporation created by the laws of that State, but doing business in Texas, in contemplation of insolvency, and covering property located in Texas, cannot be enforced there, though such mortgage was valid in Iowa. The court has this to say on the subject :
In support of the second proposition above stated, it is claimed that, this mortgage having been executed in Iowa, where the law permitted such disposition of the property, it is to be governed in its construction and enforcement by the laws of that State. We will remark, however, that it was made with a view to its enforcement in Texas, and embraced alone property situated in Texas. In support of the position taken by counsel, above stated, the following cases are cited: Ryan v. Railway Co., 65 Tex. 13; Weider v. Maddox, 66 Tex. 372, 1 S. W. Rep. 168; Rue v. Railway Co., 74 Tex. 479, 8 S. W. Rep. 533. We will briefly review some of the cases cited by the defendants in error, which, in our opinion, are not in point as authority
EXECUTOR AND ADMINISTRATOR’s LIABILITY For Morey DEPOSITED IN Bank.-Tbe Supreme Court of Washington decide, in In re Kobler's Estate, 47 Pac. Rep. 30, that an trecutor is not liable for money deposited to the trust account in good faith, in a solvent bank of good repute which afterwards becomes insolvent. The court says in part:
lu Fairchild v. Hedges, 44 Pac. Rep. 125, this court belt that a county treasurer was liable for the funds of the county deposited by him in a bank which at
CONSTITUTIONAL LAW – LIMITED DITED
In Viddleton v. Middleton, 35 Ad. E
5, decided by the Supreme Court de r's and Appeals of New Jerser, it was die at an act permitting a limited divan! ultery or desertion, attended breed lisequences with regard to property the application of a person holding tin entious scruples against absolute dan
not otherwise, is contrary to the all
tarwards became insolvent. Counsel for the treas-
fuardians were not liable under such circumstances: