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time she executed the note, the note is void and the action, nor is it an action on penal statute, where the complaint founded upon it is insufficient to sustain the I penalty is given to the informer, so as to require bond personal judgment rendered against her. The judg. to be filed under Sec. 1 of Art. 34, of Wag. Stat. p. ment was open to review.-Emmett v. Yandes.
341-2. It is merely a suit for damages, considered by the legislature to be a sufficient compensation to party
aggrieved. Plaintiff is not an informer, within the ABSTRACT OF DECISIONS OF SUPREME meaning of that term. No such right as is here as
serted was given by the act to any one who might think COURT OF MISSOURI.
proper to present or prosecute what was known to the
common law as an information. This action is for April Term, 1878.
damages, sustained by plaintiff, liquidated by statute,
and could be maintained by no common informer. Hon. T. A. SHERWOOD, Chief Justice. “ WM. B. NAPTON,
Plaintiff is responsible for costs as in an ordinary civil " WARWICK HOUGH, Į Associate Justices.
action. Affirmed. Opinion by NAPTON, J.-Edwards E. H. NORTON,
v. Brown. “ JOHN W. HENRY, J
INDICTMENT — SUFFICIENCY OF, FOR ASSAULT
WITH DEADLY WEAPON-INTENT TO KILL NEED EQUITY - CREDITOR SEEKING SUBROGATION TO NOT BE ALLEGED.-The question in this case was the RIGHT OF SECURITIES GIVEN BY DEBTOR TO IN
sufficiency of the indictment upon which defendant DEMNIFY DEBTOR'S SURETIES, TAKES SECURITIES was tried and convicted. It is based on 33d Sec. of AS HE FINDS THEM WHEN HE APPLIES TO | Art. 2, of Act Concerning Crimes and Punishments, BE SUBROGATED.-The question upon which this 1st Wag. Stat. p. 450. It charges that defendant on, case turned, was, whether creditor must not intend to &c., at., &c., “willfully and feloniously did commit an take secureties, which the sureties of his debtor had assault in and upon the person of one C, in the peace originally taken to indemnify themselves, in the con of the state then and there being, and that be, the said dition in which he finds them when he applies to he defendant, a certain pistol, the same being a deadly subrogated to rights of sureties. Creditor's equity is weapon, then and there in his right hand had and held, derived through the sureties and not independently of which said pistol was then and there loaded with gun. them, and he occupies no other position than they do; and powder and divers leaden bullets, did willfully and if they have, in good faith, released, discharged or im feloniously point at and upon him, the said C, where. paired the value of such securities, before he has taken by his life was endangered, and under circumstances any steps to subject them to his claim, the creditor which would have constituted murder or manslaughter can not justly complain. The sureties, it is true, can if death had ensued, &c." Rejecting the last clause, not alter or impair his right, and, if the securities are “ under circumstances, &c.," as surplusage, the alle originally taken, not only to indemnify sureties, but gations of assault with loaded pistol, so as to endanger also to secure creditor, any action of their's would be the life of the person assaulted, are sufficiently specific powerless to affect him. But if th3 security is merely under the statute. If one's life is endangered by an to indemnify sureties, and creditor desires subrogation, act of another, which act is willful and apparently it is clearly equitable that he should take them just felonious, it is immaterial what the purpose of the as. as sureties themselves bold them. Rankin v. Wilsey, saulting party be. To present a loaded pistol cocked, 17 Iowa, 464. Affirmed. Opinion by NAPTON, J. to the breast of another, accompanied with threats, as Logan v. Mitchel.
was proved in this case, is an act which certainly enDAMAGES — SELLING LIQUOR TO MINOR – AÇ
dangers life, whether the purpose be to kill, wound or TION BY PARENT AGAINST DRAMSHOP KEEPER-NOT
scare, and it is unnecessary to allege an intent to kill. REQUIRED TO STATE KIND OF LIQUOR, NOR TO GIVE
Jennings v. State, 9 Mo. 863. The facts alleged show BOND AS A COMMON INFORMER.—This was an action
that if the pistol had exploded and death been the reby father against a dramshop keeper for selling in
sult, the case would have been murderor manslaughter. toxicating liquor to his son, and originated before a
Affirmed. Opinion by NAPTON, J.-State v. Hays. justice of the peace. The petition states that “defendant at, &c., on, &c., being then and there a duly licensed dramshop keeper, did sell and give to Charles
CORRESPONDENCE. A., plaintiff's minor son, intoxicating liquor, and suffer the same to be done about his premises, without permission of the parents of said minor first obtained. JURISDICTION OF FEDERAL COURTS IN Whereupon plaintiff prays judgment against defend
TRADE-MARK CASES. ant, for $50, under provisions of section 20 of chapter 48 of the Revised Statutes.” Judgment for plaintiff,
To the Editor of the Central Law Journal: from which defendant appeals, and in circuit court moved to dismiss action because it was a suit on a
I note in your last issue a conclusive argument to penal statute by which the penalty was given to in
show (wbat I thought required no argument) that the former, and plaintiff had not given bond as required
trade-mark law of Congress cannot rest on the copy. by Sec. 1, Art. 1, Ch. 38, Wag. Stat. Motion overruled.
right clause of the constitution, upon which, however, At trial, defendant objected to introduction of evidence
U.S. District Judge Swing has based it in Duwell v. on behalf of plaintiff, on ground that petition was de
Bohmer, 10 Ch. L. N., 356. fective in not stating kind of liquor sold or given to Several years ago I had some correspondence with minor. Overruled and verdict and judgment for
the trade-mark officials at Washington, in which I plaintiff. Held, (1.) It is undoubtedly necessary to
scouted the idea that the copyrigbt clause justified the state the facts which show that the statute has been law, and they disclaimed this as a basis for it, and violated, but sale to minor of intoxicating liquors, claimed that it rested upon the power of Congress to whatever may have been the particular kind of liquor, regulate commerce "among the several states." is declared by the statute to be sufficient to authorize Where the trade of the owner of the mark embraces parent to recover. The definition of “intoxicating more than one state, there may be some color of conliquors" is given in the law, and it is a matter of evi stitutionality in the law as applicable to his mark. In dence whether plaintiff established charge of sale of Gibbons v. Ogden, 9 Wheat. 194-5, Ch. J. Marshall adsuch liquor to his minor son. (2.) This is not a qui tam 1 mitted that “among" must be restricted to involve
more states than one, and that the power to regulate commerce" among the several states" does not apply to the “exclusively internal commerce of a state." Therefore the trade-mark of a small dealer, whose trade is clearly entirely local, would seem to lie outside of the power of Congress. An ingenious lawyer would bave to work out Mr. Webster's phrase in the above case, that the commerce of the country is a * unit,” in order plausibly to justify the trade-mark law under the clause giving power to regulate commerce“ among the several states."
Congress ought to have the power in question. But wbile disposed to go to the very verge in construing the Constitution in favor of national power, I cannot see how, under that instrument as it is, the trade-mark law in its unrestricted generality, can be justified. Clearly, the copyright idea will not do.
R. MCP. SMITH. NASHVILLE, Tenn.
than by a properly executed deed of release, where it is unaccompanied by adverse use for the proper time, or by such circumstances as estop the owner of the way from disputing the abandonment? To state a specific case, A is the owner of a way over B's land and gives notice to B that he abandons the way and will have nothing more to do with it, and, afterwards, does not use the way, say, for 25 years. During this time there has been no adverse use on B's part, nor has he done anything, as for instance, built a house on the way, to estop A from claiming the way. Can A claim the way at the end of 25 years, or at any time after the notice of the abandonment ? *
59. A WAS RE-ELECTED TO THE OFFICE of county treasurer. On an examination of his books and papers for the preceding term, the Board of Supervisors find him a defaulter to the amount of $5,000. The board then approve his bond for the second term charging him thereon with the amount of his defalcation. In view of Sec. 690 of the Code of Iowa of 1873, can the sureties on his bond be held for any delinquencies occurring during the present term.
QUERIES AND ANSWERS.
[7 Cent. L. J. 179.] See Brown v. Eaton, 21 Minn. 409, followed in Dickerman v. Ashton, 21 Minn. 538. In my opinion these cases settle the above query.
E. R. HOLLINSHEAD. St. Paul, Minn.
QUERIES. 56. PROMISSORY NOTE-NOTICE-NEGLIGENCE."A"executes a note to "B," payable in bank sixty days arter date. About six months after maturity “B” sells said note for a valuable consideration to “C," and indorses the same to him without date, and with full knowledge that "A," the maker of the note, was insolvent, and without demand for payment. Some time afterwards “C” sells said note also for a valuable consideration, and indorses the same to “D” in the same manner as above given, without date, also with full knowledge of the insolvency of the maker. “D” makes a demand in a short time after he became the owner, and the note was duly protested by the bank at which it was made payable. “D” sues "A,"“B” and “C” jointly, which he has a right to do under the statute of Colorado in cascs of this kind. Can the defendants maintain a defense upon the ground of negligence or want of diligence upon the part of “D” in making demand, protest, etc.? And how soon should notice of protest begin, if at all, in cases of this kind, with full knowledge of insolvency, etc., as above stated ? Pueblo, Col., August 29, 1878.
C. M. P.
[6 Cent. L. J. 499.] I have just read the answer of “Kansas" to this query in 7 C. L. J. 159. I agree with him in the doctrine that a person receiving a portion of the estate fund from the administrator, in payment for property sold to the administrator in his individual capacity, and such person knowing at the time that the fund belongs to the estate against which creditors have claims, such person would be liable to the estate to the amount paid to him; and that, consequently, the three sureties on the administrator's bond, A, B and C, who had been sued together with D, the other surety on the bond, D being the person who fold property to the administrator and received the estate's money, could each recover of D the aliquot part that each was obliged to pay, if the money received by D from the administrator amounted to the sum of what A, B and C, and D were obliged to pay; if the amount so receivei by D were not so much, then A, B and C would be entitled to recover in proportion. I do not think it makes any difference that the administrator had sufficient assets to pay creditors aside from the money paid to D. I apprehend that the question whether D had knowledge that the money paid to him belonged to the estate, is the pivot on which the case must turn. Knowledge being evidence of fraud will not be presumed; it must be clearly proved. Grand Rapids, Mich.
57. NOTE PAYABLE IN PART IN IMPROVEMENTS.A note is executed for the rent of a farm for the year 1877, in the following words: “On the 25th day of December, 1877, we, or either of us, promise to pay H. G. B. four bundred and seventy-five dollars, for the rent of his farm for the year 1877. Seventy-five dollars to be paid on said rent in improvements to said farm, and allowed as a credit on said note. January 1st, 1877. (Siyned)
I. N. T.
and T. J. T." The note is past due and no improvements have been made, and the landlord has brought a suit to recover the whole amount of said note, claiming in his petition that the $75 referred to is payable in money. Can he recover? and are the tenants bound to pay the money that the note stipulates shall be paid in improvements? The note is the only contract between them, and defendants have never refused to make improvements. Winchester, Ky.
S. M. B.
58. HIGHWAYS – ABANDONMENT.-In the leading article in 7 Cent. L. J., 124, occurs this passage: “But where a way is once legally established it is not lost by mere non-use unless accompanied by acts showing an intention to abandon.” Can a way be lost by an abandonment, however clearly manifested, otherwise
[7 Cent. L. J. 139.] Yes. A mortgagor is under obligation from the nature of the mortgage contract to preserve the property pledged for the purposes of the original security, and, on grounds of public policy, to insure good faith and fair dealing, he is estopped, independent of covenants of warranty, from denying the existence of the lien which he has attempted to create, or defeating its enforcement against the property on which it was placed. Clark vs. Baker, 14 Cal. 612, and numerous
other California authorities, where the question has | land which took place towards the latter end of the been decided under laws apparently the same as those | reign of Nebuchadnezzar. It represents an estate of of Michigan. See also 1 Pow. on Mort., 190; 2 Johns. about eight and a half acres in area, and bounded on Ch. 30; 1 Green, Ch. 412; 2 Sand. Ch. 344.
the northern side by the canal of the Goddess Banituo. Elko, Nev.
R. R, B. The names of the owners of all the adjacents lands are
given, and the greatest care is taken in giving the di. mensions of these plots of land. The whole is divided
into three pairs of parallellograms, and check dimen. BOOK NOTICES.
sions are taken to test the accurscy of the work. A semi-circular portion on the east side is most carefully
measured, both radius and circumference being given. CASES ARGUED AND ADJUDGED IN THE COURT OF
- The Socialist cases in Russia are now being tried by APPEALS OF THE STATE OF TEXAS during the lat
a military tribunal, & conviction being next to impossiter part of the Tyler Term, 1877, and the Galveston Term, 1878. Reported by JACKSON & JACKSON.
ble in the civil courts, where trial by jury is in vogue. Vol. III. St. Louis: F. 8. Thomas & Co., 1878.
The scene in Odessa when the verdicts of the military
tribunal were announced in the recent cases there, is To the criminal practitioner, a volume of reports described by an English correspondent: “It was 10 containing no less than 165 cases on the law of crimes, o'clock at night when the crowd outside of the courtdecided by a court of almost exclusive criminal juris room heard that Kovalsky had been condemned to be diction, must of consequence possess great value. The shot, and his associates had been sentenced to various series of state reports of which this is the third vol periods of exile and imprisonment. A man, who had ume is, we believe, the only one which the lawyer in been present during the proceedings, opened a window this branch of the profession can obtain, with the cer looking out upon the street and exclaimed: Now, tainty that it contains nothing which will not be of use then! On this signal there was a sudden movement to him in his practice. A court confined in its investiga on the part of the crowd, and from several points shots tions to one branch of the law, must necessarily, in a were fired in the direction of a company of infantry short time, acquire a reputation for its opinions which which was guarding the approach to the tribunal. & bench called upon to decide questions without limit Cries of shame' were heard, and the people were ation as to subjects, can hardly possess. For this rea called upon to rise against their oppressors.' Four son, the cases in this volume should be of great value; soldiers were wounded, one of whom died in the night, for the reason which we have alreadv noted, this series and two persons in the crowd were killed. None of should be in the library of every criminal practitioner. the persons who fired upon the soldiers were arrested. The present volume is large, containing over 700 pages, While this scene was taking place in front of the tribu. and is handsomely printed and bound. The opinions nal, a lady named Krucovicki was addressing the peoare, as a rule, short and pointed. Their similarity in ple on the Marine Boulevard, and calling upon them to this respect to the English criminal cases is striking. rise. When an attempt was made to arrest her she
was defended by her friends."
SHORT STUDIES OF GREAT LAWYERS. By IRVING
This volume of pen sketches of the great judges and lawyers of England and America will be opened with eagerness by the profession, and will also be laid down with regret that there is not more of it. What the author calls “distilled biography” is really more than this; it is instruction and entertainment for a week and more, within the compass of a small volume. The lives of Coke, Mansfield, Kenyon, Thurlow, Loughborough, Ellenborough, Erskine, Eldon, Romilly, Abinger, Brougham, Parsons, Kent, Marshall, Pinkney, Wirt, Riker, Story, Webster, Walworth and Choate, are to some extent familiar to every lawyer of literary tastes, and the biographies of Lord Campbell and others are to be found in every well-stocked library. But the sketches before us are so fresh and well drawn that it is not possible for any one to read them without both pleasure and profit. If we have delayed a notice of this book longer than was necessary, it is only because we have lingered longer over its pages than is our custom.
THERE are few practioners says the New Zealand Jurist, who have not experienced the inconvenience of searching a file of the Gazette for a legal notice, a proclamation, or an order of council-of great impor. tance at the moment, but hopelessly buried in a mass of miscellaneous matter. The search is not always successful, and even when successful the feeling left behind is not pleasant. The Gazette is no doubt the the proper receptacle for these matters, in the first instance; but as public interests have rendered it necessary, in the case of advertisements relating to land sales, to publish them in the newspapers as well as the Gazette, it is equally clear that professional interests require the publication of purely legal notifications in the Jurist as well as the Gazette. If this course were adopted, the profession would not only be relieved from difficulty as regards a search, but the various notices which it concerns them to be acquain. ted with would be brought under their notice at once. The expense of publishing these notices as advertisements would be too trifling to form any ground for ob • jection. A similar inconvenience migbt be remedied in the same way, in the case of those notices which are required to be given under various acts-e. g., the execution of judgments against real estate act, the leases and sales of settled estates, and more especially tbe law practitioners act. There is another view of the matter. A recent issue of the Irish Law Times—the only legal journal in Ireland-contains some remarks on the limited support afforded it by the profession, notwithstanding its popularity; and it refers to various legal journals in the United States which receive large sup port from the local courts and public authorities in the shape of legal advertisements. The publication of law reports is surely of too much importance to be left to flourish entirely on its own resources.
JOHN A. INGLIS, Chief Judge of the Orphans Court of Baltimore, Md., died on the 26th ult., in his sixtyfifth year. Prior to the war he occupied for several years a seat on the bench of South Carolina. The number of petitions in bankruptcy filed during the two days prior to the expiration of the act, was hardly as large as bad been looked for. There has been discovered among the Assyrian tablets in the British Mu. seum, two neatly drawn plans of estates near Babylon. The first of these is a deed relating to the sale of some
The Central Law Journal.
his care is regarded as in custodia legis, and
execution. High on Receivers, sec. 1 and 2 SAINT LOUIS, SEPTEMBER 13, 1878.
and cas. cit. In Steele v. Sturgis, 5 Abb. Pr.
442, it is said: "The counsel for the sheriff
only objects that he was prior in right to the
receiver had executed and filed the bond to be The Supreme Court of Nebraska, in the case
given by him. When the court, in guch cases, of Chapman v. Hall, decided last month, held appoints a receiver, it is because the court has that a covenant against incumbrances is a first adjudged that the property is no longer to present engagement that the grantor has an be under the control of the parties to the suit, unincumbered title, and is not in the nature of but it is thenceforth to be and is in the custody a covenant of indemnity. The statute of lim- of the court. The receiver then becomes itations, therefore, commences to run at once merely an agent through whom the court acts ; if an incumbrance existed at the time of the | and whether he be forthwith appointed by the conveyance. See 3 Washburn on Real Prop court as in this case, or a reference be made to erty, 4th ed., 349 ; Morrison v. Underwood, a master or referee to appoint one, in either 20 N, H., 367; Pillsbury v. Mitchell, 5 Wis.,
case the effect is the same; the title of the re17. In Foote v. Burnet, 10 Ohio, 333, a dif
ceiver is of the date at which it is ordered that ferent conclusion was reached. The court
a receiver shall be appointed. Then the title say: “ If the first grantee continues in pos
of the partners to control dies, and then the session of the land whilst his title remains un
title of the court and of its agent and officer disturbed, and conveys to a subsequent gran
immediately succeeds. As in case of natural tee, in whose time an outstanding incumbrance
death the formal title * * * of an executor is enforced against the land, justice re
does not become complete until letters * * quires that this subsequent grantce should
* * testamentary are granted as the evihave the benefit of the covenant against incum
dence of title, but the title of the * * brances to indemnify himself.” No case is
executor, when he is appointed, takes effect cited by the court in support of its position
from the moment death terminates the title of except that of Backus v. McCoy, 3 Ohio, 211.
his testator. So also it is with the title of the In that case the court say: “If the grantor,
receiver. The order of the court either impliat the time of executing the conveyance, was
edly or expressly takes the title from the in possession of the land, either as disseizor or
parties, and vests it in the receiver as from that under color of title, it cannot be said that he
moment. It is enough, however, if it took it was not seized of an estate in the premises.
from the parties; after that no execution When the grantor is not seized, either in deed
could be levied upon it,” and the motion the or in law, at the time of conveying, the cove
sheriff deliver over the property to the receiver nant of seizin must be broken at the moment
was granted. A similar enunciation was made of executing the deed containing it, and be
in Rutter v. Tallis, 5 Sandf., 610, and this Mr. comes thereby a mere chose in action, and no
High, in his recent work, High on Receivers, longer annexed to, or passing with, the land.”
§ 136, announces as the better doctrine. A
Farmers' Bank v. Beaston, 7 G. & J., 421,
and it is there held that the property of a dehis right to property and possession, it is fendant will not be sequestrated until actually held by the Supreme Court of this State in reduced into the receiver's possession. This the late case of Maynard v. Bond, dates from last case in the only one I find directly opposed the entry of the order appointing him and not to the New York authority, and also to that of from the time when he gives hond in compli Fairfield v. Weston, 2 Sim. and Sto. 96, and ance with the order of his appointment. SHER to Edwards on Receivers, pp. 4 and 22. We WOOD, C. J., delivered a brief opinion: “He
incline to the opinion that the receiver's apis elsewhere spoken of as the hand of the
pointment should date from the time the order court,' and the property or fund entrusted to !
is entered, regarding this view as better susVol. 7-No. 11.
tained by reason, as it certainly is by author should in no event escape liability for obtainity, and we the more readily incline to this ing money without authority. Suppose these view because, if upheld, it will greatly tend to stockholders had formed a partnership conprevent any unseemly conflict of jurisdiction, taining precisely the same provisions that are and because, further, a party claiming an ad contained in their charter, and had put in capverse interest may appeal to the court appoint ital stock to the same extent and the same ing the receiver to take the necessary steps to amounts they each subscribed in shares, would protect that interest. High on Receivers, any one question the legality of the organiza$ 142; Sto. Eq., $ 833.”
tion, or the legal liability of each of the members of the firm? We apprehend these
propositions would be conceded. And, if so in IN McCarty v. Lavashe, decided by the
principle, what distinctions can be taken beSupreme Court of Illinois during the last
tween the supposed case and the one at bar? term, in a suit by a creditor against a stock
Had the stockholders written under the charter holder to recover a debt of the corporation,
a statement that it was unconstitutional and under a provision in its charter that each
void as a law, but that they adopter it stockholder shall be liable to double the
as articles of partnership, and that each would amount of the stock held and owned by him," it
be bound by its terms and conditions, and was held that the defendant was estopped from
would pay in for capital stock the sums denying his liability on the ground that the
set opposite their several names, and they had corporation was never legally organized, the
signed it and specified the sums to be paid in, act under which the incorporation was had
could it be doubted that each member would being unconstitutional. The same question, the
have been liable under the articles thus execucourt said, had been several times considered
ted? and if so, when stript of mere form, and
substance is alone considered, this organizain analogous cases. See Baker v. Brannon, 6 Hill, 47; Embury v. Conner, 3 N. Y. 511;
tion is in effect the same. We can preceive no Eastin v. Aspinwall, 19 N. Y. 119; Mead
well grounded distinction. We are therefore v. Keeler, 24 Barb. 20; Ferguson V. Land
of the opinion that, independent of all conram, 5 Bush, (Ky.) 230. These were all
stitutional questions, each shareholder became cases where the parties were held to be es
liable, under the charter, as articles of parttopped from insisting that the organization
nership, as it operated as an agreement by was illegal as a law, unconstitutional, because
each subscriber to be liable to creditors to of the acts or consent of the parties urging
double the amount each subscribed.” the objection. In the same court analogous questions have been presented and deter
THE FOURTH VOLUME OF THE “ AMERImined. In the case of Tarbell v. Page, 24
CAN DECISIONS."* Ill., 46, it was held that in a suit by a creditor against a stockholder, the former could not This series grows better as its volumes mulshow that the corporation had failed to file tiply. The decisions in the fourth volume a certificate of organization with the Secretary cover three years—from 1808 to 1811—and of State ; that in a collateral proceeding the embrace seventeen volumes of reports from regularity of the corporate organization could the States of Massachusetts, (5 and 6 Mass.), not be questioned. Rice v. R. I. & A. R. R. 21 Connecticut, (4 Conn.), New York, (4 and 5 Ill. 93; Goodrich v. Reynolds, 31 III. 490. “Jus Johns.) New Jersey, (2 Pennington), Pennlice, morality, public policy and precedent,” sylvania, (2 Binney), Virginia, (2 Hening & said the court “all demand that appellant Munford, 1 Munford), North Carolina, (1 should be estopped from denying the constitu Murphey), South Carolina, (2 Brevard, 3 Destionality of the law. If stockholders might aussure, Eq.,) Kentucky, (1 and 2 Bibb,) show the law unconstitutional and their organ- and Georgia, (1 T. U. P. Charlton). Someization void, and all of their acts unauthorized,
*The American Decisions, containing all cases of then all persons engaged in its organization, general value and authority decided in the courts of should be held liable for the consequences of the several states, from the earliest issue of the state
reports to the year 1869. By John Proffatt, L. L. B., heir illegal and unauthorized acts, independent
author of a “Treatise on Jury Trial," etc. Vol. IV. of the clause in their charter, So they 'San Francisco: A. L. Bancroft & Co., 1878.