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NOTES OF New Books.
tion, if the will be referred to in the deed, the deed shall be held to be an execution of the power and the whole estate shall pass, although no direct reference to the power is made in the deed. And, although the words “ executrix of the estate of John, P. C.,” in the deed, and the word “executrix" following the signature of the grantee, are mere descriptio per8onæ, mere surplusage, yet these words are operative to show that there was a will of which she was executrix, and such reference to the will, although indirect, is sufficient. Owens v. Baker, S. C. Mo., Cent. L. J., April 20, 1877.
2. WHAT CONSTITUTES A WILL. · The following written instrument held to be a will, to wit:
“Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do hereby order and direct my administrators or executors, in case of my death, to pay Robert D. Clark the sum of seventy-five thousand dollars, as a token of my regard for him, and to commemorate the long friendship existing between us. Witness my hand and seal, this 17th day of April, A. D. 1872. " $75,000.00
JAMES MCCULLY. [L. s.]” Frew v. Clark, S. C. Pa., W. N. C., April 12, 1877. 3. UNDUE INFLUENCE.
FIDUCIARY RELATION. INTEMPERANCE. – SENSUALITY. — Undue influence operating on the mind of an elderly woman, weakened by intemperance, inflamed by abnormal sensual desire, and subjected to the persuasions of one, the object of the inflamed longings, whose relations of confidence gave him ample opportunity of accomplishing his private ends, is an imprisonment of the mind not less cogent than actual duress, and is sufficient to avoid a will made under such influence. Dushane's App., S. C. Pa., W. N. C., May 31, 1877.
NOTES OF NEW BOOKS.
Messrs. Kay & Bro. have the following works nearly ready:-
Williamson Executors and Administrators. By EDWARD VAUGHAN WILLIAMS. Sixth American edition. By J. C. PERKINS, LL.D. 3 vols.
Theobald on the Construction of Wills. A Concise Treatise on the Construction of Wills. By H. S. THEOBALD, Esq.
Reed's Leading Cases in the Law of the Statute of Frauds. Messrs. CockCROFT & Co. have published a new work on Chattel Mortgages. by H. M. HERMAN, Esq.
A new American edition of Russell on Crimes, being the ninth American, from the fourth London edition, with the Notes and References contained in the former editions, and additional Notes to English and American Decisions. By Hon. Geo. SHARSWOOD, LL. D., is offered by Messrs. Johnson & Co., of Philadelphia.
Messrs. Robert CLARKE & Co. have published a new catalogue which they describe as a Digest of Law Publications. It is a marked advance, perhaps to be much preferred to any catalogue of its class.
THE AMERICAN LAW TIMES.
NOTES OF OPINIONS, DECISIONS, AND ORDERS
SUPREME COURT OF THE UNITED STATES.
DECEMBER TERM, 1876.
Monday, May 7, 1877. No. 247. The Southern Express Company, plaintiff in error, v. Jno. F. Dickson. In error to the Circuit Court of the United States for the Southern District of Alabama. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. In this case the agent of the plaintiff Dickson delivered to the express company, at Greensboro, North Carolina, fifty-two boxes of tobacco, to be shipped to Columbia, South Carolina. The boxes were consigned to Trent at that place, and the delivery to the company for shipment was made by Trent, one of the said firm, who at the time informed the company that the tobacco was the property of the plaintiff. A written receipt was given by the company in the usual form. The boxes never left Greensboro, but were sold by Trent to one Mendenhall, without authority of the owner, and by the order of Trent were delivered to him by the company at Greensboro. Held, that the company was liable.
No. 243. N. P. Wilson, appellant, v. Alfred Hoss, appellee. Appeal from the Supreme Court of the District of Columbia. Mr. Justice Hunt delivered the opinion of the court, affirming the decree of the said supreme court, with costs. The decree in this case was made upon the bill and answer. The opinion is a pro formâ affirmance. No points of interest were involved.
No. 583. The Town of East Lincoln, plaintiff in error, v. Charles Davenport. In error to Circuit Court of the United States for the Southern District of Illinois. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. This cause was decided upon the authority of Nugent v. Supervisors (19 Wall. 241), already cited, which holds that a subscriber to the stock of a corporation is released from his subscription by a subsequent alteration of the organization and purposes of the company only when the alteration is a fundamental one, and when in addition such alteration is not contemplated either by the charter of the company or the general statutes of the state.
No. 234. The Ælna Life Insurance Company, plaintiff in error, v. David France go wife. In error to Circuit Court United States for Eastern District of Pennsylvania. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of said circuit court, with costs and interest. Two points are decided in this case : (1.) That a sister has an insurable interest in the life of a brother. The court say :
“ As held by us in the case of the Connecticut Mutual v. Schaefer, just decided, any person has a right to procure an insurance on his own life and to assign it to another, provided it be not done by way of cover for a wager policy; and where the relationship between the parties, as in this case, is such as to constitute a good and valid consideration in law for any gift or grant, the transaction is entirely free from such imputation.” (2.) That to avoid the policy the answers in the application must be untrue in material respects and unqualifiedly false.
No. 212. H. S. Johnson, appellant, v.C. W. Harmon. Appeal from the Supreme Court of VOL. IV.
Notes OF Opinions, DECISIONS, AND ORDERS.
the District of Columbia. Mr. Justice Bradley delivered the opinion of the court, affirming the decree of said supreme court in this cause, with costs. Dissenting, Mr. Justice Clifford. It is decided in this cause that a bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity.
No. 256. The Relief Fire Insurance Company, plaintiff in error, v. Elijah A. Shaw. In error to Circuit Court United States for the District of Massachusetts. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of said circuit court, with costs and interest. It is ruled in this case that there is nothing in the statutes of Massachusetts to prevent parol contract of insurance.
No. 260. J. B. Eames & E. A. Cooley, appellants, v. Home Insurance Company. Appeal from the Circuit Court United States Southern District of Illinois. Mr. Justice Bradley delivered the opinion of the court, reversing the decree of said circuit court, with costs, and remanding the cause with directions to enter a decree in conformity with the opinion of this court. This cause bad relation to a question whether or not a contract had been made by certain letters and otherwise, and other questions chiefly of fact.
No. 261. The Connecticut Mutual Life Insurance Company, plaintiff in error, v. Adam Schwenk, Guardian, &c. In error to the Circuit Court United States for the Eastern District of Pennsylvania. Mr. Justice Strong delivered the opinion of the court, affirming.the judgment of said circuit court, with costs and interest." It is decided in this cause that a misstatement of his age by an applicant for insurance does not necessarily avoid a policy, and that the minute book of a lodge of Odd Fellows is not competent evidence to show the age of a member.
Nos. 655, 656, 657, 658. The Chesapeake & Ohio Railroad Company, plaintiff in error, v. The Commonwealth of Virginia. In error to Supreme Court of Appeals of Virginia. Mr. Justice Strong delivered the opinion of the court, affirming the judgments of said supreme court in these causes, with costs and interest. Dissenting, Hunt and Field, JJ. "These causes involved a construction of the statutes concerning the taxation of the property of the company. The question was as to the extent of the exemptions.
'Nos. 225, 226. Benj. Stack, appellant, v. Levis M. Starr; No. 227. Benj. Stack, appellant, v. Chas. P. Bacon et al. Appeal from the Circuit Court of the United States for the District of Oregon. Mr. Justice Field delivered the opinion of the court, affirming the decrees of said circuit court in these causes, with costs. The court in these causes considers the question when a former judgment bars a subsequent suit, and other points not of general interest.
No. 239. Wm. D. Stewart, Administrator, &c., et al., appellants, v. Ezekiel Salamon et al. Appeal from Circuit Court of the United States for the Southern District of Georgia. Mr. Justice Field delivered the opinion of the court, reversing decree of said circuit court, with costs, and remanding the cause for further proceedings in conformity with the opinion of this court. The point of contention in this case was whether a note was originally solvable in Confederate currency or in the legal currency of the United States. The circuit court held that it was solvable' in legal currency, and was so intended by the parties. The evidence showed that the transaction, for which the note was in part given, was in Confederate currency. At the time it was made the treasury notes of the Confederate government constituted the principal currency of Georgia, where the transaction took place. It was to them that reference was always made when dollars were mentioned, unless coin was specified. This condition of things appearing, the presumption, it is decided, is that the parties had those notes in contemplation, and the decree is, therefore, reversed.
No. 217. A. J. Davis, appellant, v. Harvey Alvord. Appeal from Supreme Court Territory of Montana. Mr. Justice Field delivered the opinion of the court, reversing the decree of said supreme court, with costs, and remanding the cause with directions to enter a decree in conformity with the opinion of this court. The points decided in this case are as follows:
1. A suit to recover judgment for labor performed by the plaintiff upon a quartz mill and mine in Montana Territory, and to enforce a mechanic's and laborer's lien upon the defendant's interest in the premises for the payment of the judgment, is a suit in equity, requiring specific directions for the sale of the property, such as are usually given upon the foreclosure of mortgages and sale of mortgaged premises. The fact, that according to the modes of procedure adopted in the territory, a personal judgment for the amount found due is usually rendered in such cases, with directions that, if the same
Notes OF OPINIONS, DecisioNS, AND ORDERS.
be not satisfied out of other property of the debtor, the property, upon which the lien is adjudged to exist, shall be sold, and the proceeds applied to its payment, does not change the character of the suit from one of equitable cognizance, and convert it into an action at law.
2. Mechanics and laborers asserting a lien upon real property for their work, and claiming priority over mortgagees and others, who have acquired interests in the property, must furnish strict proof of all that is essential to the creation of the lien ; and that requires them to prove when the work was commenced, the character of the work, and when it was completed.
3. Work was done by the plaintiff under a contract with the defendant, made August 1st, 1869, on two distinct parcels of property situated in Montana Territory quartz mill and the other a quartz mine, separated a considerable distance from each other. The work on the mill was completed in the fall of 1869 or in the summer of 1870. Nothing was done afterwards except to make occasional repairs as they were needed. The work on the mine was done in 1870, but it was not shown when the work was commenced. In June, 1871, upon an accounting between the plaintiff and the defendant, there was found due to the plaintiff a large sum, which the parties agreed should be a lien upon the mill and mine in equal proportions. Notices claiming a lien upon each for the amount as thus apportioned were accordingly filed in the recorder's office : Held, 1st. That a lien did not arise from this contract of apportionment, or from the special contract under which the work was done, but from the work itself which was performed upon the property; 2d. That the work being done on different parcels of property, the lien claimed on one was to be considered separately from the lien claimed on the other ; 3d. That the notice, so far as the mill was concerned, was filed too late, the statute requiring the notice to be filed within sixty days after the completion of the work; and that the occasional repairs subsequently made could not be added to the work done months before, so as to render the whole work one continued performance for which a single lien could be claimed within sixty days after the last repairs ; 4th. That it not appearing when the work upon the mine was commenced in 1870, it will not be presumed that it was commenced before the mortgage of the defendant was executed and recorded in September of that year, so as to give to the lien for the work priority over the mortgage.
No. 682. W. W. Boyd, Jr., et al., plaintiffs in error, v. The State of Alabama. In error to the Supreme Court State of Alabama. Mr. Justice Field delivered the opinion of court, affirming the judgment of said supreme court, with costs. This case was as follows: The defendant having been indicted under a statute of Alabama for setting up and carrying on a lottery without legislative authority, claimed in defence a right to set up and carry on the lottery in question under a subsequent statute passed on the 10th of October, 1868; this latter statute was repealed in March, 1871. It was admitted on the trial that the acts charged against the defendant were done under that statute, and would be legal if the statute were constitutional and had not been repealed. That statute required the defendant and certain other parties associated with him, before exercising the right claimed, to deposit in the treasury of the state, to the credit of the school fund, and for educational purposes, two thousand dollars, and annually thereafter the same sum for twenty years, or so long as they might do business under the act, and that sum had been deposited. Under a previous indictment against the same defendant for a similar offence, the supreme court of the state had held that the statute in question constituted a contract, and that the repealing act was for that reason void. In that case the only matter before the court was the meaning of the statute; its constitutionality was not called in question. On the trial of the case at bar the defendant relied upon that decision of the court, but he was, nevertheless, convicted and sentenced. On appeal to the supreme court of the state the judgment was affirmed, the court deciding that the statute of October 10th, 1868, was unconstitutional : Held, that the previous adjudication of the court upon the meaning of the statute, – that it constituted a contract between the defendant and the state, — did not estop the state from denying its constitutionality in the present case, nor conclude the court upon that question, although the point might have been raised and determined in the first instance.
No. 1042. Charles Forbes, appellant, v. Thomas Gracey et al. Appeal from the Circuit Court of the United States for the District of Nevada. Mr. Justice Miller delivered the opinion of the court, affirming the decree of said circuit court, with costs. Mr. Justice Field took no part in the decision of this cause. This was a suit brought by appellant to enjoin the collector of taxes for Story County, Nevada, from collecting a tax imposed by the law of that state upon the property of the Consolidated Virginia Mining Company,
Notes of OPINIONS, DecisioNS, AND ORDERS.
the appellant being a stockholder in the company and an alien subject of the Queen of Great Britain. The tax was by the state statute imposed upon the proceeds of the mine worked by the corporation, and was resisted on the ground that title to the land from which the mineral was taken was in the United States, and is not for that reason liable to state taxation. The court below dismissed the bill and the decree is here affirmed.
No. 32. The United States, plaintiff in error, v. Antonio Joseph ; No. 33. The United States, plaintifj in error v. Juan Santistevan. In error to the Supreme Court of the Territory of New Mexico. Mr. Justice Miller delivered the opinion of the court, affirming the decrees of said supreme court in these causes. The opinion in these causes defines the rights of the Pueblo Indians in New Mexico.
No. 250. J. C. Davis et al., plaintiffs in error, v. State of Indiana, ex rel. The Board of Commissioners of Bartholomew County, in error to Supreme Court State of Indiana. Mr. Justice Miller delivered the opinion of the court, affirming the judgment of said supreme court, with costs. This cause involved only a construction of the statutes of Indiana affecting her public schools, the court coinciding with the views of the state court in every particular.
No. 249. J. B. Lippincott & Co., appellants, v. N. C. Mitchell, by her next friend Price Williams. Appeal from Circuit Court of United States for Southern District of Alabama. Mr. Justice Swayne, delivered the opinion of the court, affirming the decree of said circuit court, with costs. Dissenting, Mr. Justice Strong. This case was as follows: The premises in question were conveyed to the appellee, Nannie C. Mitchell, by deed duly executed, bearing date on the 19th day of March, 1868. On the 17th of February, 1869, the said Nannie C. Mitchell, and J. C. Mitchell her husband, mortgaged the premises to the appellants, J. B. Lippincott & Company, to secure the payment of certain liabilities therein described. The instrument contained a power of sale. The mortgagees advertis the property to be sold pursuant to the power. She thereupon filed this bill to enjoin the sale, upon the ground that under the law of Alabama she was incompetent thus to incumber the property, and that the mortgage was, therefore, void. The circuit court decreed a perpetual injunction and the decree is here affirmed.
No. 15, original. N. w. Casey, Receiver, 8c., plaintif, v. Count Goffredo Galli. Action for debt. Mr. Justice Swayne delivered the opinion of the court, giving judgment for plaintiff, with costs. This cause involved no question of general interest.
No. 208. Ann Davis et al., plaintiffs in error, v. Ann Crouch et al. In error to Supreme Court of Appeals State of Virginia. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in this cause for the want of jurisdiction. The decision in this case is an aflirmance of the rule often announced, that a decree of reversal of a state court is not a final decree reviewable in this court.
No. 246. D. F. Gunn, Guardian, 8c., appellant, v. I. C. Plant et al. Appeal from Circuit Court of United States Southern District of Georgia. Mr. Chief Justice Waite delivered the opinion of the court, reversing the decree of the said circuit court, with costs, remanding the cause with instructions to proceed in conformity with the opinion of this court, and as law and justice may require. The question presented in this case was determination whether a judgment otherwise duly entered is void, if the verdict on which it is predicated has not been recorded in the minutes. “ It is very clear," say the court, " that a decision of a court is not technically a judgment until in some form it has been entered of record. If entered in the course of judicial proceedings, of which the court has jurisdiction, it is binding until reversed or set aside, no matter how irregular it may be as to matters of form. Cooper v. Reynolds, 10 Wall. 316. In this case a judgment was entered in due form. As a judgment it was complete. There had been a verdict, and that appeared among the files in the cause. It was within the power of the court, therefore, to enter the judgment. The only defect in the proceedings is an omission to properly record the verdict. That seems to us an irregularity only. The court had jurisdiction of the cause and of the parties, and in due course of proceeding had the power to enter the judgment and did so." The judgment is, therefore, held to be valid.
No. 216. Luther 11. Pike et al., appellants, v. John Wassell, appellee, from the Circuit Court of the United States for the Eastern District of Arkansas. Mr. Justice Waite delivered the opinion of the court, reversing the decree of the said circuit court, with costs, remanding the cause with instructions to proceed in conformity with the opinion of this court, and as law and justice may require. It is decided in this case that where seizure is made by the United States under the confiscation acts after the levy of an attachment, the attachment lien is not divested, but remains and may be enforced.
No. 718. The Pittsburg Locomotive and Car Works, plaintiffs in error, v. The State Na