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cannot therein successfully assall the order of ap. on the goods. First NAT. BANK OP SHERIDAN V. C. D.
against an attachment creditor of such buyer, may in.
131. SLANDER-Privileged Communications. - Legal 123. RECEIVERS - Sales under Attachment. - It is in malice is conclusively settled by a default in ap action the discretion of the court in which receivership pro- of slander, where the words are actionable per se; ceedings are pending to refuse to permit a sale of the and hence, on an inquisition of damages after the de. property on attachment issued from another court, fault, the words cannot be held privileged by reason though it was levied before the receiver was ap of the circumstances under which it is shown they poluted. – SOUTHWESTERN INY, P. CRAWFORD, Tex., 41 were spoken.-HEYWARD V. SANNER, Md., 37 Atl. Rep. 8. W. Rep. 720. 194. RELIGIOUS SOCIETIES · Authority of Priest.
132. STATUTES--Approval or Repeal-Computation of church and school belouging to a religious corporation Time.-Supdays are excluded in computing the periods were for eight months entirely in charge of the priest, of 10 days, under Cunst, art, 5, $ 16, providing that "any who collected and disbursed all funds, the trustees bill which shall not be returned by the goveruor withbolding no meeting, and taking no part in the inanage. in 10 days (Sundays excepted) after it shall have been ment. The priest borrowed money to build an addi.
presented to bim, shall be ome a law in like manner tion to the school. The trustees knew that the addition
as if he had sigued it; unless the general assembly was beiog built, and that the corporation was without
sball, by their adjournment, prevent its return, in funds, and retained the building so erected: Held, which cuse it shall be filed with bis objections in the that the corporation was liable for the borrowed
office of the secretary of state, within 10 days after money, ROMAN CATHOLIC CONGREGATION OF THE
such adjournment, or become a law."-PEOPLE V. Rose, CHURCH OF THE ANNUNCIATION V. O'LEARY, Colo., 49 III., 47 N. E. Rep. 518. Pac. Rep. 129.
133. State-Suits against State. - The legislature has 125. REMOVAL OF CAUSES -Citizenship.-When a peti.
the right to authorize suits against the State. The aution for the removal o: a cause from a State to a fed
thority to sue covers authority to bring an action to eral court alleges lacts to show that a defendant, who prevent prescription of the judginent obtained under is a citizen of the same State as the plaintiff, has been
the original authority granted.-CARIER V. STATE, La., joined merely for the purpose of defeating the Juris 22 South. Rep. 400. diction of the federal court, it is open to the plaintiff to join issue upon the facts so alleged; and thereupon
134. TAXATION-Exemptions - Valldity.-Const. art. 7, the court will hear the evidence, and decide accord.
$$ 1, 2, declare that "all property pot exempt under ingly, but, unless issue is joined, the facts alleged in
the laws of the United States or under this constitution the petition, if supported by Afuavit, will be taken as
shull be taxed;" that the legislature shall provide a true, and the cause will be remuved.- DORKEE V. ILLI.
uniforin and equal rate of taxation on "all property in NOIS CENT. R. Co., U. S. 0. C., N. D. (Iowa), 81 Fed.
the State, provided that a deduction of debts from Rep. 1.
credits muy be authorized;" and "that the property 121. REMOVAL OF CAUSES-Local Prejudice. - Under
of the United States, and of the State, counties, school the acts of 1887 88, a cause can only be removed from a
districts, and other municipal corporations, and such State to a federal court on the ground of local preju.
other property as the legislature may by general laws dice before the trial of the Case; and the submission
provide, sball be exempt froin tuxution:" Hell, that of a demarrer to the petition, based upon the ground
the words and such other property," etc., re er to that the petition fails to show a cause of action, and
property of the same general character that the ruling of the court thereon, constitute a trial of
specially enumerated, and do not authorize the legis. the case, such as to prevent the reinoval. HOBART V.
lature to exempt any private property. - STATE V. ILLINOIS CENT. R. Co., U.S.C. C., N. D. (Iowa), 81 Fed.
DANIEL, Wush., 49 Pac. Rep. 213. Rep. 5.
135. TAXATION-Inheritance Tax.-Constitutionality. 127. REMOVAL OF CAUSES Proceeding to Probate -St. 1893, p. 193, establishing a collateral inheritance Will.-The only way to contest a will under the Arkan. tax, is not unconstitutional, as a discrimination be. 889 statutes being by objection to its probate, or by ap.
tween persons standing in the same relation, merely peal to the circuit court from the order of the probute
because it does not tax iuberitance by brothers and court, such a proceeding may be removed to the led
sisters of deceased, and does tax inheritances by cbil. eral court in a proper case. — FRANZ V. WAHL, U. 8. dren of such brothers and sisters, while Civ. Code, s D. C., E, D. (Aik).), 81 Fed. Rep. 9.
1306, provides that in certain cuses the children of de. 128. SALE
ceased brothers and sisters may take by representa. Action for Price. - In an action on notes given for the price of a soda fountain sold by plaintiffs
tion, since such regulation of descent is not a classiti. to detendunts in January, 1888, to be paid for in
cation for the purpose of taxation.-IN RE WILMER monthly payments, it was not error to charge that if
DING'S ESTATE, Cal., 49 Pac. Rep. 191. defendunts clalmed in July, 1888, that they bad re. 136. TAXATION OF RAILROAD.-A railroad, not the jected the fountain, and held it subject to plaintiff's property of a railroad company, and neither owned vor order and then continued to make moothly payinents operated under a franchise by an individual or an un. until November, sach facts were evidence that the incorporated association, is not subject to taxation by claims of defects were unfounded. - HODGE V. TUFTS, the State board of assessors.-STATE V. STATE BOARD Ala., 22 South. Rep. 422.
OF ASSESSORS, N. J., 37 Atl. Rep. 729. 129. SALES – Chattel Mortgage. — A buyer cannot, in 137. TAXATION-Peddlers.-Gen. $$. 3312, subd. 13, an actiou for the price, attack the seller's title on the authorizing towns "to license, tax, regulate, suppress ground that the sale by which such title was acquired and prohibit" peddlers, empowers them to exact aliwas in fraud of creditors of the first seller, where the cense as peddlers from such persons only as can be buyer, though a creditor of the first seller, had no lien termed such in the signification of the word as there
The large fence natura
Tabeasce ( estion for per 1 Tas compe
1-1993 photo loring the
obstructed the natural flow, a plea which werely afers that defendant constructed its embankment aod cal. verts more than 10 years prior to the injury, and has maintained them in the same condition ever since, does not show an adverse user without further averring that like effects resulted at intervals during the 10 years, without complaint from plaintifi.-SHAHAN T. ALABAMA GREAT SOUTHERN R. CO., Ala., 22 South. Rep. 449.
147. WATERS-Prescriptive Rights-Riparian Proprietors.-No prescriptive right to the use of the water of stream can be acquired by one riparian proprietor, as against another, by a use of the water at times when such use does not intrrlere with the latter's use of the water, and when, as often as there is interference, tbe lalter bag protested, and sought to prevent the use.UNION MILL & MINING 00. V. DANGBERG, U. 8. C.C., D. (Nev ), 81 Fed. Rep. 73.
148. WILLS-Construction. A testator gave each of his children $5,500, payable in four semlanoual lbstallments, and $500 per year, until said sumns were paid, to his wife, and also “any balance from my semi-annual income:" Held, that the funds to be paid the children should be taken from the income, and those to the wife froin the capital.-HAMMOND V. HAMMOND, Mx88., 47 N. E. Rep. 535.
149. WILLS-Estate Devised.-Property was devised in trust, the incoine to be paid to iwo certaig benet: ciaries for 10 years, and at the expiration of that time the principal to be paid over to them in equal shares, free of all truste, ''to them and to their children after death; the children to take among them equally the share of their father." The will further provided that if such beneficiaries, or either of them, should dle leaving no descendants, whatever of the property "shall remain in their or his possession" should go to a certain corporation: Held, that at the expiration of the 10 years the beneficiaries took the property 8680lutely, the provision as to the distribution among tbeir childr: o being in case of their death before the expira: tion of such time -BENTZ V. MARYLAND BIBLE 80C., Mu., 37 Atl. Rep. 708.
150. WILLS-Promise by Legatee.-A father, in extremi being about to execute a will making his three chil: dren his residuary devisees, stayed such execution in order to add a bequest to another person. One of the childreo, without the koi wledge of the others, assured him that, if he should execute tbe will without change, his wish with regard to the intended bequest would be fulfilled. On this assurance he did go execute the doe. ument: Held, that the share in the estate of the child giving the assurance must contribute a third ools to. wards making good the intended bequest.--YEARANCE V. POWELL, N. J., 37 Atl, Rep. 735.
151. Will-Testamentary Capacity.--Mere ignorance by testatrix of the kind or amount of her property will not invalidate her will, but only ignorance resulting from a niental capacity to comprehend the kind and amount thereol.-IN RE LIVINGSTON'S WILL, N. J., 89 Atl. Rep. 770.
152. WILLS-Undue Influence-Evidence.-Teststri: made a will disinheriting one of her daughters, with whom she bad quarreled a short time previous to be execution of the will: Held, that evidence of this quarrel was immaterial on the question of undee lo fluence.--IN RE KAUFMAN'S Estate, Cal., 19 Pac. Rep. 192.
153. WITNESS-Cross-examination.-Where defendant is called as a witness by plaintiff, it is ad abuse of dit cretion to permit cross-examination going outelde the testimony in chief, and bringing out by leading que* tions matters of defense.-BISHOP V. AVERILL, Wash, 49 Pac. Rep. 237.
154, WITNESS-Impeachment.-A witness whose testi mony is attacked as a recent fabrication may support the same by proof of statements made when no motive for fabrication existed.--JONES 7. STATE, Tel., dl 6. W. Rep. 639.
istiff's lega 8 maken by the fal andelendant's ka by the wit e eugeon, not
it with the new pesh this particu the testified that presented the c pot of the fract bet, that by the Wed to see the bormang mith his Sopped of the sl mered to the the eight, if they
mpetent for the
used; and hence ap ordinance which attempts to enlarge such signidcation is to that pxtent void.-KENNEDY V. PEOPLE, Colo., 49 Pac. Rep. 373.
138. TRESPASS Damages.- The erection of a bulk. head on one's own land, whereby the lands of another are flooded, is not a trespass; and hence an action for damages by such flooding is not within Code Civ. Proc. § 338, subd. 2, providing limitation of actions for "trespass on realty."-HICKS V. DREW, Cal., 49 Pac. Rep. 189.
139. TRESPASS — Partnership - Penalty for Cutting Trees.- While one is liable for the consequential dam. ages from the tortious cutting of trees by his partner in the prosecution of their business, be, not having known of or uuthorized the cutting, is not liable for the penalty therefor under Code 1886, § 3296, providing that any person who cuts down trees “on land not his own, willfully and knowingly, witbout the consent of the owner, must pay to the owner $10 for every such tree."-WILLIAMS V. HENDRICKS, Ala., 22 South. Rep. 439.
140. TRUST FOND8-Deposit with Bapk.-It is not within the power of the treasurer of a school district, by a general deposit of funds held by virtue of his of. fice, to create between such district and his banker the relation of debtor and creditor.-STATE V. MIDLAND STATE BANK, Neb., 71 N. W. Rep. 1011.
141. USURY-Limitation of Actions.-The “usurious transaction" from which limitations run against an action to recover twice the amount of usurious interest paid to a national buuk (Rev. St. U. 8. 8 5198) occurs only when an amouut greater than the principal and legal interest has been paid, or judgment recovered for such an amount, as the creditur can until that time purge the usury by crediting the excessive interest on the principal.- First NAT. BANK OF GADSDEN V. DENSON, Ala., .22 South. Rep. 518.
142. VENDOR AND PURCHASER-Contract-Assignment. -A land contract stipulating that the purchase money paid should be forfeited in sale of failure to pay the remainder of the price by a certain date, but that the obligation to purchase at the priced named should continue binding on the vendee, was not a mere option which became forfeited by vendeu's failure to make such payment by the date specified.-HEMAN V. WADE, Mo., 41 8. W. Rep. 740.
143. VENDOR AND PURCHASER-Covenant of Warranty - Estoppel. - A grantor is not estopped by his covenant of warranty from enforcing an existing mortgage on the property which is afterwards as. signed to him, it having been expressly understood when the deed was made that the property was sold gubject to guch mortgage, and the consideration hav. ing been agreed on with that uuderstanding.-HAMILL V. INVENTORS' MANUFG. Co., N. J., 37 Atl. Rep. 773.
144. VENDOR AND PURCHASER-Fraudulent Repre. sentation of Title.-Where the vendor falsely stated that the land was swamp land, and that a deed from the county to himself was the only conveyavce, and the validity of bis title depended on the truth of such statements, and the purchaser, in reliance thereon, waived abstract of title, the vendor could not contend that the purchaser was not justified in relying thereon on the ground that he had equal opportunity to judge of the title.-HURMAN V. HALL, Mo., 41 S. W. Rep. 783
145. VENDOR AND PURCHASER-Sale of Lands-Broker. -A broker for the sale of land at a price fixed cannot bind the owner by representation or contract, and the owner's offer to sell cannot be varied by the broker's letter of acceptance reciting that the purchaser understands that the property is of certain dimensions.PLANER vEQUITABLE LIFE ASSUR. Soc. OF THE UNITED STATES, N. J., 37 Atl. Rep. 668.
146. WATERS – Obstructing Surface Water-Adverse User.-In an action for damages to plaintiff's premises from an overflow caused by defendant railroad com. pany's embankment and defective culverts, which
a lo mereal 10
Central Law Journal. structure of the human body, and that its
various parts can be photographed as its ex
terior surface has been and now is. And no ST. LOUIS, MO., SEPTEMBER 3, 1897,
sound reason was assigned at the bar why a civil
court should not avail itself of this invention, The laws governing the introduction of evi- when it was apparent that it would serve dence naturally conform themselves to mod- to throw light on the matter in controversy." ern scientific development. The use of the Maps and diagrams of the locus in quo drawn X-ray in court is an apt illustration. by band are often used to aid a judge or a recent case decided by the Supreme Court of jury to an intelligent conception of the mat- . Tennessee (Bruce v. Beall), which was an ters to be determined, and no one would action for personal injuries, it was held that think of questioning the competency of the it was competent to submit to the jury an testimony of a witness who stated that he X-rays photograph, taken by a surgeon, knew the map or diagram to be entirely acshowing the overlapping bones of one of curate, and who then used it to illustrate or plaintiff's legs where it was broken at the make plain his statement. The pictorial time of the accident, where the surgeon was representation of the condition of the broken familiar with the process by which the impres- leg of the plaintiff gave to the jury a much sion was secured, as well as with fractures, more intelligent idea of that particular injury and testified that the photograph accurately than they would have obtained from any verrepresented the condition of the leg at the bal description of it by a surgeon, even if he point of fracture, and that, by the aid of the had used for the purpose the simplest terms X-rays, he was enabled to see the fracture of his art. The only case in this country and overlapping as it they were uncovered wherein the exact question seems to have to the sight. It appeared that in the prog. been determined and a similar conclusion ress of the trial a physician was introduced reached, is Smith v. Grant, before a Colorado as a witness, who was permitted to submit to court, to which we called attention at the the jury an X-ray photograph taken by him, time, but photographs showing exterior surshowing the overlapping bones of one of faces have been admissible in numerous cases. plaintiff's legs at the point where it was They have been held competent on the quesbroken by the fall. This was objected to by tion of identity of persons (Udderzook v. the defendant's counsel. This picture was Com., 79 Pa. St. 340; Cowley v. People, 88 taken by the witness, who was a physician N. Y. 464; Luke v. Calhoun Co., 52 Ala. and surgeon, not only familiar with fractures, 118; Ruloff v. People, 45 N. Y. 213), and to but with the new and interesting process by identify premises (Church v. City of Milwhich this particular impression was secured. waukee, 31 Wis. 512; Blair v. Pelhan, 118 He testified that this photograph accurately Mass. 421), and in cases of handwriting. represented the condition of the leg at the Marcey v. Barnes, 16 Gray, 161. As the point of the fracture in question, and, as a Tennessee court very properly says it should fact, that by the aid of X-rays he was not be understood that every photograph ofabled to see the broken and overlapping fered as taken by the cathode or X-ray procbones with his own eyes, exactly as if, ess would be admissible. Its competency, stripped of the skin and tissues, they were to be first determined by the trial judge, deuncovered to the sight. The court said that pends upon the science, skill, experience and they might, if they so desired, rest their con. intelligence of the party taking the picture clusion on the general character of the ex- and testifying with regard to it, and, lacking ceptions taken to this testimony, but they these important qualifications, it should not preferred to place it on the ground that, be admitted ; and, again, even when it is not verified by this picture, it was altogether conclusive upon the triors of fact, it is to be competent for the purpose for which it was weighed like other competent evidence. offered. “New as this process is, says
the court, “experiments made by scientific men,
The decision of the Court of Appeals of as shown by this record, have demonstrated its Kentucky in the recent case of Blackburn v. power to reveal to the natural eye the entire Wright, may be technically correct, but it
guest one dea
i, decided by
will not be actionable without proof of special bol
ta the police c ple, çlainti:
i prisoner tu
bed that th
mnog bim to
will doubtless strike the ordinary' modern
for it can hardly be supposed that, at practitioner as one of the nonsensical refine- this day, when, by the law of most all the ma iz roid, ibi ments of reason with which the common law States, a married woman may contract as a led to a lien. abounds. The holding of the court was that feme sole in respect to her separate estate, Rades, 41 S. words charging & plaintiff with "stealing" she is without power to subscribe for or bethe door of a house are not actionable per se, come the transferrer of the stock of a na.
KUSICIPAL C because they impute only the offense of a tional bank.”
fers or OFFTO trespass to real property and do not involve
L: Bovce F, Sal moral turpitude. Under the English rule,
JUDGMENT-ACTION AGAINST LEAD Person. they say, words which impute that plaintiff
-As to the validity of judgments in favor of has been guilty of a crime punishable with im
or against persons rendered after their death, prisonment are actionable without proof of spe
there is great contrariety of opinion. One cial damages, but, if the offense imputed be
class of authorities holds that all such judg. only punishable by penalty or fine, the words ments are absolutely void. Another class
holds that those which are rendered in suits damages. It is quite true, that at common commenced after the death of the party are law, in order to render the charge actionable void, but that, where the parties are alive per se the act imputed shall not only be sub
when the suits are commenced and the court ject to an infamous punishment but also to
once acquires jurisdiction over their persons, involve moral turpitude. At common law judgments therein rendered are not void, larceny was restricted to personal property.
though the parties be dead before this rendiReal estate could not be the subject of the
tion. Other cases take the broad position offense of larceny, and the same rule ex- that the judgments are not void in either of tended to everything which adhered to the the cases stated, but that they are only realty, or to the soil ; so that if one, even with
voidable by direct proceeding. Speaking of felonious intent, severed and carried away
the cases mentioned in the first and third anytbing which formed a part of the freehold, classes, Mr. Freeman says: “We apprehe does not, at least by the rules of common
hend that neither position is correct. That law, commit the offense of larceny but is
there should, at some time during its progress, guilty only of trespass. In some States
be living parties to both sides of an action, this rule of the common law has been materi. we think indispensable; and that no sort of ally changed by statutory enactment, but in jurisdiction can be obtained against one who Kentucky the common law rule seems to pre
was dead when the suit was commenced vail.
against him as defendant, or in his name as
him from showing that he died before the soNOTES OF RECENT DECISIONS.
tion was begun; and that a judgment for of
against bim must necessarily be void." MARRIED WOMAN-NATIONAL BANK STOCK
Freem. Judgm. $ 153. To the same effect is -OWNERSHIP AND PERSONAL LIABILITY.-The
Black, Judgm. $ 203. Vanfleet, in his work question presented by the case of Kerr, Re- on Collateral Attack, holds that the judg. ceiver, v. Urie, 37 Atl. Rep. 789, before the ment is valid until set aside by direct attack, Court of Appeals of Maryland, is whether a whether the party died before or after the married woman living in one State is capable commencement of the action. Sections 587, of holding stock in a national bank located 602, and 603. The decisions upon all of the and doing business in another State, and if so
phases of the question will be found cited bs whether she is liable as such stockholder, these authors at the places in their works under the personal liability provisions of the above indicated, and in the note by Freeman United States statute. The court decided in
to the case of Watt v. Brookover (W. Va.) the affirmative saying, that whatever difti. 29 Am. St. Rep. 816-819, 13 s. E. Rep. culty may surround this question arises, we
1007, the Supreme Court of Texas after think, more from the manner in which it is a review of all the cases on the subject ba: presented in this case than from any other recently beld that a judgment in an action
A fentenced to
MUNICIPAL CORPORATION LIABILITY FOR MORTGAGE--REDEMPTION-RATE OF INTERTORTS OF OFFICERS-FALSE IMPRISONMENT.- EST-AMENDMENT OF STATUTE AFTER SALE. In Royce v. Salt Lake City, 49 Pac. Rep. In Thresher v. Atchison, 48 Pac. Rep. 1020, 290, decided by the Supreme Court of Utah, decided by the Supreme Count of California, the plaintiff was arrested by a police officer it was held that a statute decreasing the rate of defendant city, for vagrancy, without of interest to be paid to redeem land sold on warrant, no public offense being shown to execution is inoperative on a sale made prior have been committed in his presence.
to the passage of the act. The court said was tried on a verbal charge of vagrancy in that it has been frequently held that a law the police court, without any written com- extending the time within which a redemption plaint being filed against him, was convicted, may be made from a sale under a judgment and sentenced to imprisonment, but not to will be inoperative upon a sale made prior to hard labor, and held without commitment the passage of the act; that the purchaser at from the police court. By order of the chief the sale acquires rights thereby of which he of police, plaintiff was put at work upon the cannot be divested by subsequent legislation. stone quarry, where he received from a Cooley, in his treatise on Constitutional fellow prisoner the injury complained of. It Limitations (page 353), says: "A law is was held that the acts of the chief of police, void which extends the time for the redemprequiring him to work breaking stone, when tion of lands sold on execution, or for denot sentenced to hard labor, at the time of linquent taxes after the sales have been made; the injury, were ultra vires; that the officers for in such a case the contract with the purwere not acting as agents of the city govern
cbaser, and for which he has paid bis money, ment, but were trespassers, and the corpora- is that he shall have title at the time then tion is not liable to the action for damages ; provided by the law; and to extend the time that authority granted by resolution of a city for redemption is to alter the substance of the council, directing the marshal to work contract as much as would be the extension prisoners, does not confer the right to re. of the time for payment of a promissory quire those in custody, but illegally im- note.” Mr. Freeman, in his treatise on Exprisoned, and not sentenced to hard labor, ecutions (section 317), in discussing the to be thus employed and that all torts or effect upon the rights of the judgment debtor wrongful acts of an agent or officer of a of a statute authorizing a redemption from a municipal corporation, not resting upon con- sale passed after the sale has been made, tract, but which are "ultra vires,” in the says: “But the right of the purchaser to a proper sense and meaning of the term, will conveyance, or to repayment at the terminanot create an implied liability on the part of tion of the period allowed for redemption, is the corporation. The court cited the follow- deemed to rest upon a contract which the ing cases as authority for the general prop- legislature will not be permitted to impair. sition that, in such cases as this, police offi- Hence, while the time for redemption may
cers are not the servants of the corporation probably be shortened, it certainly cannot be educe to the extent of involving the latter in lia- prolonged by any law enacted after the sale.”
bility: Stoddard v. Village of Saratoga The same principles which render void an Springs, 127 N. Y. 261, 27 N. E. Rep. 1030; act extending the time for redemption after Smith v. City of Rochester, 76 N. Y. 506; the sale has been made will render void an Calwell v. City of Boone, 51 Iowa, 687, 2 N. act reducing the amount of money required W. Rep. 614; Town of Odell v. Schroeder, for a redemption from such sale. The sale 58 III. 353; 1 Shear. & R. Neg. $ 300; by the sheriff is regarded as a sale by the Mechem, Ag. $$ 111, 112; Alamango v.
judgment debtor (Blood v. Light, 38 Cal. Board of Sup’rs, 25 Hun, 551; Curran v. 658); and the purchaser is entitled to rely City of Boston, 151 Mass. 505, 24 N. E. upon the statutory provisions for redemption