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of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial. Opinion by SCOTT, J.-Baker 0. Pendergast.
PARTNERSHIP - INDIVIDUAL DEBT.--One partner without the consent, express or implied, of his copartners, can not apply a claim of the firm to the pay. ment of his individual debt, even in order to retain for the firm its debtors' custom; and such attempted ap. plication, with knowledge of the facts by such debtor, will not defeat an action at law upon the claim by the firm or its assignee. Viles v. Bangs, 36 Wis. 131. Opinion by LYON, J.-Cotzhausen v. Judd et al.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF INDIANA.
November Term, 1877.
WILLIAM E. NIBLACK,
EASEMENT-ACTION TO QUIET TITLE.-An action will lie to quiet one's right or title to land against one claiming an easement therein. An easement runs with the estate and is a hereditament, and is included in the phrase “real property.” Opinion by WORDEN, J.-Davidson v. McNicholson.
WHEN HEIRS OF A DECEDENT MAY SUE FOR DEBTS.-As a general rule, the right to sue for a debt owing to a decedent at the time of his death vests in his executor or administrator; but where a party dies intestate, leaving no debts to be paid, and no administration is had upon his estate, his heirs may sue for the recovery of any debts due the estate. 54 Ind. 524. Opin by HOWK, J.-Moore et al. v. Board of Commrs. of Monroe Co.
DECEDENT'S ESTATE-CONTRACT FOR SERVICES.A agreed with B to nurse him and his family through and attack of disease then prevailing in B's family. Held, the contract meant that A should perform the services till the family should be well, though B or any other member might die in the meantime. The contract was not discharged or terminated by the death of B, and the claims for services -o rendered after his death could be collected from his estate. Opinion by WORDEN, J.-Toland, Adm'r. v. Stevenson.
" THOMPSON'S TENNESSEE CASES." To the Editor of the Central Law Journal:
I have just learned through a private letter from a member of the bar of Tennessee that Mr. W. J. Gilbert, law publisher of this city, has just issued a small volume of cases called “Thompson's Unreported Cases,” or “ Thompson's Tennessee Cases," I am not certain which. As the publication of this book, if unexplained, is calculated to affect my reputation injuriously, I ask permission, through your columns, to make a short statement: In the year 1870, I undertook the editing of one or two volumes of decisions of the Supreme Court of Tennessee, which had been omitted by the authorized reporters. Most of the material at my disposal consisted of reports and notes of cases kindly placed in my hands by Hon. J. B. Heiskell, since and now the able Attorney-General and Reporter of Tennessee. Mr. Gilbert undertook to pablish them for me, and some three hundred pages of the first volume were printed. But his printing office at that time was so poorly organized that, in addition to my own numerous faults of omission and commission, the typographical and mechanical errors beggared all description. No language can convey any adequate idea of the number and quality of these errors. They were such that Mr. Gilbert and myself mutually agreed that the work should not be issued in its then condition, and, in pursuance of that agree. ment, the sheets have lain suppressed for seven years. But lately, in violation of that agreement, and in opposition to a wish lately expressed by me in a letter to Mr. Gilbert, and in a surreptitious manner, he has bound up some of these sheets, with my name on the title page, and is selling them to the legal profession in Tennessee, leaving them to infer that the publica. tion has been made with my approval. I wish to state distinctly that this publication is wholly disapproved by me; that, while I should have been glad to have these cases published, if printed in a decent manner, I can not refrain from thinking that their publication in the present shape is calculated, if unexplained, to inflict upon me a deep and undeserved disgrace.
SEYMOUR D. THOMPSON. ST. LOUIS, April 11, 1878.
PROMISSORY NOTE MATERIAL ALTERATION PLEADING AMENDMENT.-1. An alteration of a promissory note by the holder, changing it from a promise to pay“ to the order of —,"to a promise to pay “_ or bearer," would be material. 2. A promissory note altered by a trespasser, against the will of the holder, remains valid as originally written. 3. If such note is by mistake declared upon as altered, the complaint is amendable at the trial, to correspond with the proof, and must be considered as amended on appeal from a judgment for the holder. Opinion by RYAN, C. J.-Union National Bank v. Roberts et al., imp.
SERVING NOTICE BY MAIL.-1, Under Ch., 264 of 1860, which requires notice of appeal to be served on the clerk and the respondent within the time limited for appealing, such a notice mailed to the clerk or attorney residing in a different place on the evening of the last day for appealing, and not received until a subsequent day, is too late. 2. Sec. 39, Ch. 140, R. S., which declares that when service is made by mail as provided in the two preceding sections, “ it shall be double the time required in case of personal service," appears to limit such services to notices of acts to be done in the future, and to exclude notices of acts done. Opinion by RYAN, C. J.--Stevens v. Wheeler et al.
QUERIES AND ANSWERS. [In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's depart. ment-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecu. tively during the year, and correspondents are requested to bear this in mind when sending answers.)
QUERIES. 21. CHANGE OF VENUE FOR BIAS OF JUDGE-PROFESSIONAL ETIQUETTE.-H sues W on a contract for $1,400, and agrees to pay his attorneys all over a certain amount which he may recover in the action, for their services in conducting tire suit. W makes affidavit to
THE proportioning of sentences to the guilt of the accused, which is allowed to the English judges to a very large extent, is discussed from different positions in the law journals. The Solicitors Journal concludes that the only mode of thoroughly reconciling the two conflicting views appears to be the adoption of the pious fraud which is stated some years ago to have been practised by a learned and tender-hearted judge who occasionally passed tremendous sentences on prisoners, pour encourager les autres, and then privately directed a less sentence to be recorded. The learned judge's brethren on the bench were understood to have protested against this practice, and it was discontinued.
the foregoing facts; also, swears that P, one of the attorneys for the plaintiff, is a brother of the presiding judge of the court in which the case is pending, and, as such attorney, is to receive a certain proportion of the amount recovered and he believes that he can not have a fair and impartial trial before Judge
-, the brother of P, and asks for a change of venue, under the following statute. “In all cases in which it shall be made to appear to the court that a fair and impartial trial can not be had in the county where the suit is pending, or where the judge is interested, or has been of counsel in the case or subject matter thereof, or is related to either of the parties, or otherwise disqualified to sit, the court may, on application of either of the parties, change the place of trial to some adjoining county wherein such impartial trial can be had; but if the objection be against all the counties of the district, then to the nearest county in the adjoining district.” 1. Is the defendant, W, entitled to a change of venue, or of judges, to try the case under the foregoing statute. 2. Is a party, or his attorney, who asks for a change of the place of trial, as above stated, in good faith, guilty of a contempt of court, or breach of professional etiquette? Authorities are desired, if possible.
N. M. & S. (For a partial answer to this query see 6 Cent. L. J. 140.-ED. C. L. J.]
(6 Cent. L. J. 278.) I would refer “Reader” to 3 Otto 72 for a possible answer to query No. 15.
W. P. WARNER. St. Paul, Minn. The rule seems to be well settled, that where there is any defect in a chose in action, as between the original parties to it, an assignee, though receiving the same before due, and in good faith, can only recover the amount he actually paid for it. Todd v. Shelbourne, 8 Hun., (N. Y.) 510; Stevens v. Corn Exchange Bank, 3 Id. 147; Platt v. Beebe, 57 N. Y. 339; Jones v. Hibbert 2 Starkie 304; Allaire v. Hartshouse, 1 Zabriskie (N. J.) 665, and cases cited at p. 673; Stoddard v. Kimball, 6 Cush. (Mass.) 469; Hubbard v. Chapin, 2 Allen (Mass.) 328; Petty v. Hammer, 2 Hump. 102; Holman v. Hobson, 8 id. 127; Youngs v. Lee, 18 Barb. (N, Y.) 192, 193; affirmed, 2 Kernan, 551.
MERRITT KING. Ithaca, N. Y.
A CORRESPONDENT in California writes: “ The ref. erence ante 241 to the disapproval, in a late case, of the rule in Thurtell v. Beaumont, 8 J. B. Moore, 612; 1 Bing. 339, reminds me of a rather singular rule recognized in two cases at nisi prius, that where a pleading in a civil case, which charges a party to an action with the commission of a felony, is found true by the verdict of a jury, the party may be arraigned and tried for the felony upon the verdict without an indictment. See Cook v. Field, 3 Esp. 133.; Prosser v. Rowe, 2 C. & P. 421. If this rule was generally recognized in the English courts at the time of the decision in Thurtell v. Beaumont, there were ample reasons for that decision which never could arise in this country.”
IN a prosecution in England a few weeks ago, the jury returned a verdict of guilty, and recommended the prisoner to mercy. The Lord Chief Justice said: “Gentlemen, this is a recommendation I can not possibly listen to. The prisoner has committed a serious crime in circumstances of great aggravation, and there are no extenuating circumstances whatever to afford ground for such a recommendation.” The trial having lasted all day, from the early part of the morning until a late hour in the evening, the jury desired to be discharged from further attendance. The Lord Chief Justice“By all means, gentlemen. A jury who could hesitate so long in so clear a case and then recommend the prisoner to mercy without any ground whatever, must be a jury with whose services I should be most anxious to dispense, so I have the greatest pleasure in discharging you."
(6 Cent. L. J., p. 279.) See Wag. Sts., vol. 2., p. 823, c. 82, art. iv., $$ 20, 21. I do not know of any decision of the Supreme Court upon the point decided in Thomas' adm'r v. Dunnica, 15 Mo. 385, but do not think it is now the law. That case was decided in 1852, when the R. C. 1845 was in force, but the R. C. 1855 made important changes and additions (see R. C. 1855, pp. 153, 154, c. 2, art. iv., $$ 9, 10 and 11, and compare with R. C. 1845, c. 3, art. iv.), and seems by $10, art. iv., c. 2, which is a new section, construed with the other sections of same article, and other provisions regulating “Set Off,” to change the law as announced in that decision. J. E. V.
A PROPOS of the American edition of Wharton's Le.. gal Maxims, noticed 6 Cent. L. J. 257, and which has been so severely handled by the reviewers, a correspondent, who has been looking into the work, writes: " I find the maxim respondeat superior, upon pages 14, 185, 283 and 323. This is pretty well, for a maxim of two words. The maxim certum est quod certum reddi potest has more words, and so is entitled to occur oftener, Accordingly, we have it in the list on pages 9-14, on pages 47, 224 and 300, and as id certumest, etc., on pages 240 and 307, in all six times. That is to say, in four different lists, and in two instances reoccurring twice in the same list. So, besides being in the list on pages 9-14, the maxim ex nudo pacto, etc., occurs on pages 85, 234 and 304, four times. The maxim omne majus, etc., on pages 141, 270, 316, 343, and in a transposed form on page 309, five times. And the familiar maxim about the incident following the principal, on pages 219 and 345. I also find that 100 of the maxims occur at least four times, and some of them five times, while fully 500 are repeated at least once. At this rate, it is not wonderful that the book contains over 1,200,' although a matter of surprise that it does not contain over 12,000.”
“Can a judgment be rendered by a justice's court in favor of a defendant where an action is instituted by an administrator, for a debt due his intestate, and where, upon the trial, the facts show that the estate owes the defendant?” Yes, and said judgment would stand as an ordinary account against said estate--and would have to be filed against the estate--the judg. ment would not be of a higher nature than the account. Preferences given to judgments mean judgments rendered during life of deceased.
It is certain that much sooner than the profession now realize, the question of how to grapple with the increasing volumes of law reports which, with increasing rapidity, keep pouring from the printing presses, will be forced upon the attention of every lawyer. A suggestion made by an exchange is so sensible and easy of adoption that we have wondered why judges do not avail themselves of it. This is that courts should adapt the length of their opinions to the novelty and the importance of the questions to be determined, and dispose of mere iterations of familiar rules on the authority of a leading case. For the convenience and economy of the profession the courts should not be expected to write opinions merely in deference to the estimate placed by counsel upon the cause, but should feel free to dispose of an appeal upon the bald authority of a leading case, if there is one which deserves to control the question, thus gaining space and time and opportunity for research upon questions which really contribute to the settlement of the law and the advancement of jurisprudence.
THE Chicago Bar Association, at its last meeting, had before it for discussion the report of the Committee on Legal Education, making varions recommendations to the courts as to the mode of conducting examinations for admission to the bar. Amongst other things, the committee favored the examinations being carried on by written questions and answers. It may be said, without fear of contradiction, that this is the only mode by which the examiner can be certain of making his examination thorough, and of which, at the same time, the student can have nothing to complain. It is the only test which is really worth anything; the giving of half a dozen questions on such an extensive subject as the laws of our land, being certain to confuse the novice, who, having but little time to reflect, and being sometimes too modest to assert what he thinks to be the true answer, presents to his questioners the appearance of one who knows nothing of the subject, while, in fact, his only fault may be a want of self-possession. A duller, and at the same time, bolder youth may thus be successful, while bis more meritorious companion signally fails, and this for no reason which should affect the result in an ordeal of this nature. To make an examination thorough and complete, questions should be propounded on as many subjects as possible, and the questions on each topic should only be limited when absolutely neces. sary. The candidate should be allowed a sufficient time to frame his answers, and the examiner should be careful not to reject him for a failure on a single subject, provided his average on the whole examination is up to the standard. The many branches of the subject, and the likelihood that after being admitted to the bar he may devote himself to a specialty, to the exclusion of all the other branches, should not be forgotten in this connection. In his last annual report, the Dean of tbe Harvard Law School has something to say on this question, which deserves the attention of all examining boards throughout the land.
that they were wholly archidiaconal; and of the manners of Mr. Justice Hannen it may be said that they are eminently judicial. He does not say much as a judge, but he looks as few judges can look. His silence is austere. His nearest approach to humor is fretfulness. He never unbends or permits himself relaxation. A settled gloom hovers over the bench of the divorce court, and gravity, if not melancholy, has marked its president for her own. Indeed, it is well it should be so. In other courts there is room for light treatment of frivolous claims. There is such a process as the laughing of a case out of court; and a stupid client, though no wit himself, is often the source of wit in others. But it is felt that the divorce court stands on a wholly different footing. Even where there is neither disgrace nor dishonor, but only misconception and jealousy, there must always have been much men. tal anguish, and the class of men and the class of women who are found in the witness-box give an unfa. vorable view of humanity. Levity would be out of place in such gloomy surroundings. The president's chief duty is to look grave. He is not often troubled with difficult law points. Indeed, most of his work is matter of routine, and one of his chief duties is to stick to common-sense, and to be careful not to contradict his predecessors or himself. To talk sensibly and to look dignified are his chief du. ties, and he discharges both admirably. In many respects, the Divorce Court more nearly resembles a Vice-Chancellor's Court than a Common Law tribunal. There is more solemnity and less noise. The judge's sense of importance contributes to this, and the fact that, though in theory any barrister may be briefed, in effect the work is in a few hands, adds to the resemblance. In no way is the President's conduct condu. cive to this result. To all the counsel that appear before him he extends a courtesy which might be genial if it were not so pompously donnish. But this matter has its own attractions. The court is never the scene of disagreeable skirmishes between Bench and Bar, as in the time of one of his predecessors. A very able advocate was examining a witness. “Stop," said the Judge abruptly. The examination continued. “Stop," said the Judge, abruptly. The counsel asked yet another question. “Mr. James," said the Judge,“ did you hear me say 'Stop?” “I did, my lord,” said the counsel; “but I thought from your lordship's tone that your lordship was only addressing the Usher." The President of the Probate and Divorce Division of the High Court of Justice is obviously a most important personage. He sits, for the most part, in solitary dignity and contemplates from an unchanging seat a slightly varying Bar. Silence, majestic, and at times almost comatose, he personates austere dignity in the sincerest appreciation of its own sublimity. Wit is out of place in his court, and humor, if it should blunder in, blunders out again as quickly as it can. The court is hushed and solemn. Questions are asked with bated breath. Cross-examination moves through a prescribed course. The judge flinches from the painful revelations, and is the moralist of the miseries of married life. And in all this the influence he ex. ercises is good and healthy-if only it be not pushed too far. Under a less dignified president the divorce court would soon become a hotbed of scandalous curiosity. Sir James Hannen has done a service to morality in his successful efforts to reduce and keep in check this dangerous tendency of his court. If his work seems light, compared with that of other judges, and adequately recompensated, it is to be remembered amidst what painful scences he passes his days. There is much to shock and nothing to improve. As one after another the half-told tales of guilty love are committed to his note-book, it is no wonder the judge should look up with impatience and grow restive under weary iterance.
THE President of the English Divorce Court, Mr. Justice Hannen, is the subject of an interesting sketch in one of the comic papers of that country. Since the days of Chancellor Thurlow, says this journal, no judge on the English bench ever looked so wise as Sır James Hannen. It is impossible to be in his court without being impressed with his almost episcopal dignity. Of the duties of an archdeacon it was truly said
The Central Law Journal. How. 30 ; R. R. v. Brown, 17 Wall. 445-451;
1 Redf. Law Rys., c. 22, $ 1; R. R. v. Mayes,
49 Ga. 355, The plaintiff was on defendant's SAINT LOUIS, APRIL 26, 1878.
train. He was entitled to a seat. It was cor
rect to refuse to charge that it was plaintiff 's CURRENT TOPICS.
duty to ask the conductor for a seat before
passing into the Wagner car. The defendant's A decision of some interest to the traveling proposition is that plaintiff should have asked public was made in the New York Supreme
for a seat when there was none to his knowlCourt last month in Thorpe v. N. Y. C. & edge vacant, and that the failure to do this H. R. R. R., 1 Rep. 464. The plaintiff took made plaintiff a trespasser in going into the a regular passenger train of defendant, to the Wagner car. But he was wrongfully there which was attached a Wagner Drawing-room only when he refused upon demand car. The train was in charge of a conductor. extra fare, and unreasonably declined to leave The Wagner car was in charge of a porter
the car. employed by Wagner, subject to approval of defendant. The plaintiff passed through the
In the English Court of Appeals, in the ordinary cars of the train and found no va- case of Moore v. Hall, 26 W. R. 401, decided cant seat, and then took a seat in the Wagner last month, it was held that in an action for car. The porter, after the train was in mo- obstruction of light, the jury may be directed tion, demanded twenty-five cents extra fare
to take into consideration in assessing damfor a seat in that car, which was refused, ages the fact that the use to which the plainplaintiff saying he would go into the other tiff's premises are put may reasonably be excars as soon as there were vacant seats, and pected to be altered in the future to a use for declined to leave while the cars were in motion. which they will require the whole flow of The porter used violent and threatening lan- light to which they are entitled. MANISTY, J., guage, and finally attacked plaintiff and in- said: “If a man has a prescriptive right to jured him. The jury found for plaintiff in light for certain windows, he loses none of his $1,000. On appeal this judgment was affirmed. right by enlarging those windows; he still has The court in its opinion decided the following a right to the same flow of light, and it matpoints: Even if the plaintiff had been a ters not to what use he may put it. The jury may trespasser in the Wagner car, the porter could
therefore contemplate his requiring his prenot remove him from the car in a dangerous scriptive flow of light for other purposes than and unsafe manner, or use excessive force. those for which he at present uses it. By using Rounds v. R. R., 64 N. Y. 129. If the porter the same flow of light to a greater extent the serhad been the defendant's servant, no reasona
vice of the servient tenement is not increased ble doubt could exist as to its liability under or diminished. On this point see the observathe facts proved. Rounds v. R. R., ante ;
tions of Lord Justice Mellish in Aynsley v. Cosgrove v. Ogden, 49 N. Y. 255; Jackson v. Glover, 23 W. R. 147.” COCKBURN, C. J.: R. R., 47 N. Y. 274. The arrangement be- “The measure of damages has nothing to do tween defendant and Wagner was private and
with the use to which the premises are being personal. When the Wagner car was put into put at the time. Let us take a practical case. the train, it became a part of defendant's Suppose a man builds a house and opens trainwas under the control of its conductor windows, the owner of a tenement against -was in his care and custody. The defend- which he is gaining a prescriptive right to ant, and not Wagner, ran the train. The light does not consider for what purpose Wagner cars were run for the joint account the light is being will be used; nor when and interest of Wagner and defendant. The the right is gained does he consider it. Mardefendant was liable for the acts of the porter of tin v. Goble, 1 Camp. 320, was decided on a the Wagner car to the same extent as if he had wrong principle. If you change the use of been hired by, and was in the immediate em- the light from a superior to an inferior use, ployment of defendant. R. R. v. Barron, 5 say from a mansion to a factory, it can not be Wall. 104; Kennedy v. R. R., 62 Ill. 395; 7 said that, because in the second use you reAm. Ry. Cases, 346; R. R. v. Winans, 17 ) quires less light than formerly, the owner
Vol. 6.–No. 17.
of the servient tenement will have any pow- contract. The Supreme Court of California er to obstruct your light to the extent of held that mere failure or refusal to pay an inthe difference between the light formerly and stallment, as it becomes due, does not amount now required for the progress of the building. to prevention; and, therefore, does not auThe true measure of damages is the diminu- thorize the party to abandon the work and tion in value of the premises. How can that recover the benefit he would have received had be ascertained? The rooms which are now he fully performed. The fact that defendant used as bedrooms may, in a very short time, failed to make such payments, “well knowbe required for some other purpose for which ing that plaintiff had to rely on the money they will want all the light which had, previ- received from him,” does not change the reously to the erection of defendant's building, sult. In Withers v. Reynolds, 2 Barn. and flowed in. In estimating damages, the jury Ad. 882, Patterson, J., said: "If the may fairly take into consideration whether the
plaintiff had merely failed to pay for any parhouse will probably be continued to be used
ticular load, that of itself, might not have in the same
been an excuse to defendant for delivering no reasonable probability that in the hands of
more straw; but the plaintiff here expressly either its present or future owner it may be
refused to pay for the loads as delivered.” used in some other way. If this
This case was commented on in Franklin v we should have a varying rule
Miller, 4 Ad.and Ell. 599. Coleridge, J.,
there said: “In Withers v. Reynolds, each and continual actions.” In Martin v. Go
load of straw was to be paid on delivery.” ble, i Camp. 320, referred to and dissented from by the Chief Justice, it was said:
When the plaintiff said that he would not pay “ It was not enough that the windows were to
for his loads on delivery, that was a total faila certain degree darkened by this wall, which
ure, and defendant was no longer bound to the defendant had erected on his own ground.
deliver.” See note to Cutter v. Powell, 2 The house was entitled to the degree of light
Smith's Leading Cases. In Masterton v. necessary for a malt-house, not for a dwelling- Mayor of Brooklyn, 7 Hill, 64, 65, the house. The converting it from the one into | plaintiffs having continued to furnish marble, the other could not affect the rights of the
as required by his contract, up to a certain
date, the defendants suspended operations owners of the adjoining ground. No man could, by any act of his, suddenly impose a
upon the building, and refused to receive any
more materials of the plaintiffs, though the new restriction upon bis neighbor. This house had for twenty years enjoyed light sufficient
latter were ready and offered to perform.
Canal Company v. Gordon, 6 Wall, 561, for a malt-house, and up to this extent and no
construes a statute of California in respect to farther, the plaintiffs could still require that
mechanics' liens, and holds that where a conlight should be admitted to it. The question,
tract is to complete a structure, with agreetherefore, was whether if it still remained in the condition of a malt-house, a proper degree of
ments for installment payments, a failure to
make a payment at the time specified justifies light for the purpose of making malt was now
an abandonment of the work, and entitles the prevented from entering it, by reason of the
contractor to receive a reasonable compensation wall which the defendant had erected.”
for the work actually done. In Hale v. Trout,
35 Cal., 242, there was prevention, or total IN Cox v. McLaughlin, 1 Cal. Leg. Rec. 42, refusal. Sawyer, J., said:
refusal. Sawyer, J., said: “There was not by the terms of the contract sued on, the merely a neglect of payment, but plaintiffs plaintiff was to receive $900,000 for furnish- were notified by the defendants that they ing materials and performing certain work,
should treat the contract as at an end, and which sum was to be paid in installments.
would receive no more lumber under it." In After about four-ninths of the work had been Cort v. Ambergate Railway Company, Langdone, the defendant failed and refused to pay dell's Select Cases, 970, Lord Campbell said: an installment when it fell due.
Thereupon “On the whole, we think we are justified on the plaintiff abandoned the work and brought principle, and without trenching on any former suit upon the contract, alleging that the de- decision, in holding that when there is an exfendant had prevented the completion of the ecutory contract for the manufacture and