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DAMAGES-SHOOTING OF PLAINTIFF—EVIDENCE, science or skill, and the opinions of witnesses thereon THREATS MADE BY PLAINTIFF.- This was a suit for are inadmissible; and the exclusion in this case of such damages sustained by plaintiff by reason of being shot testimony of one who had been a civil engineer, but and severely injured by defendant, who was a sheriff. did not appear to be an expert as to the construction It appears that defendant was out serving papers, and of highways, was not error. Opinion by Ryan, C. J. waited at the intersection of roads when he observed - Benedict v. City of Fond du Lac. plaintiff approaching with a gun on his shoulder. As | TAX CERTIFICATE - MEANING OF 6. MUNICIPU. the plaintiff came up the defendant took deliberate aim .
CORPORATIONS.” – 1. Tax rertificates issued to a and shot at him twice, both shots taking effect. The
county can not be transferred by it without an assignfacts were substantially admitted. The only defense
ment in writing. 2. The term “ municipal corporainsisted upon is that plaintiff had, some twenty days
tions," in the constitution of this state, does not inbefore, threatened to take the life of defendant. De
clude towns (Norton v. Peck, 4 Wis. 714); and when fendant offered to prove on the trial by witnesses that
used in our statutes it must be taken in its strict conthey had heard plaintiff make threats against defend
stitutional sense, unless a different intention on the ant some twenty days before the shooting. That evi. dence was excluded, and the action of the court is as
part of the legislature is clear. 3. In the proviso to signed for error. Judgment below was for plaintiff'.
sec. 1, ch. 112, Laws of 1867, the words "counties or SCOTT, J., says: “The evidence was not offered as a
municipal corporations,” include cities and villages, matter of defense, but in mitigation of punitive or ex.
and any other municipal corporations strictly so called,
but do not include towns, school districts and other emplary damages; but our opinion is it was not com
quasi corporations. 4. Towns are not autborized to petent for any purpose. There is no principle with which we are familiar on which such evidence is
purchase and hold tax certificates; and the intervenadmissible. Unless the threats which it is proposed to
tion of a town as the pretended owner of such certifiprove are so recent as to become il part of the transac
cates does not suspend the statutory limitation of action being investigated, such testimony is not admis
tions thereon. Opinion by ORTOX, J.-Eaton o. Susible under any known rule of evidence for any pur
pervisors of Manitowoc Co. pose. See 75 III. 397. * * * Before a party may at CONTRACT-INTEREST.-1. Without a biil of exceptack or inflict bodily harm upon a person who has tions, rulings on the trial as to the admission of evimade threats against him, however well grounded his dence can not be reviewed here. 2. On the amount apprehension may be, there must be some overt act due plaintiff by the terms of his contract (according to from which an intention may be reasonably infer a former decision herein, 42 Wis. 377), he is entitled to red to carry into effect his threat of personal violence. interest from the time of his discharge as building su. See 12 Tex. 462; 44 Miss. 762. These salutory princi perintendent of the northern hospital for the insaneples have been applied in civil actions for the recoy that amount having been capable of being ascertained ery of damages, where, it is held that such evidence is by computation. 3. Where a party's right to compensanot admissible, even in mitigation of damages. 19 tion under a contract is doub:ful, and is contested on Johns. 318; 1 Mass. 11; 5 Iowa, 478; 2 Duer, 310.” reasonable grounds, and the amount due bim requires Affirmed.- Cummins v. Crawford.
to be determined by suit, interest will not be allowed for the time preceding such determination of the right of recovery and the amount due. 4. Thus, on the
amount awarded plaintiff by the jury as the value of ABSTRACT OF DECISIONS OF SUPREME bis plans, etc., for that part of the hospital building COURT OF WISCONSIN.
not erected under bis superintendence, interest should be allowed only from the verdict; especially as bis
claim, rejected by the legislature, was for a greater August Term, 1878.
sum than he was entitled to. 7. The board in charge,
and thereto authorized, having, at a regular meeting, Hon. E. G. RYAN, Chief Justice.
a opted a plan for surface drainage of the grounds, " ORSAMUS COLE, )
etc., previously prepared by plaintiff at the request of 66 WM. P. LYON,
Associate Justices. individual members of said board, and baving ordered DAVID TAYLOR, " HARLOW S. ORTON, )
him to contract for the work according to such plan, this was a ratification of the plan, and entitled plain
tiff to recover therefor. Opinion by COLE, J.- ShipNEGLIGENCE-FAILURE TO PRESENT BANK CHECK.
man v. State. --1. Delay to present bank check until the failure of the bank, ten days after its receipt, held negligence which would have discharged the drawers if they had left funds in the bank until that time to meet the
ABSTRACT OF DECISIONS OF SUPREME check. 2. But where the drawers drew out their en JUDICIAL COURT OF MASSACHUSET IS. tire account in the bank before its failure, they are liabie to protect the check; and this, though the bank would probably have paid it at any time before the day
July Term, 1878.] of failure, and although its assignee (under the lederal bankruptcy act) recovered from the drawers the money
HON. HORACE GRAY, Chief Justice. drawn out by them on that day. Opinion by Ryan,
JAMES D. COLT, C. J.-Kinyon v. Stanton.
SETH AMES, INSUFFICIENCY or HIGHWAY – OPINION OF Ex
MARCUS MORTON, PERTS.-1. While in extreme cases the insufficiency of
WILLIAM C. Expicott, Associate Justices. a highway may be so great and manifest as to warrant
OTIS P. LORD,
AUGUSTUS L. SOULE, the court in holding it insufficient as matter of law, the question is generally one of mere fact for the jury, upon evidence of the actual condition of the highway. INDICTMENT-ADULTERATION OF FOOD-CONFEC2. Wbile the e might possibly be cases in which the TIONERY.-An allegation in an indictment that the deopinions of experts would be admissible upon ques. | fendant “unlawfully and fraudulently did adulterate tions going to the sufficiency of a highway, yet gener a certain substance intended for food, to wit: one ally the question of such sufficiency is not one oil pound of confectionery," etc., does not describe the
substance that the defendant is charged with adulter subject to taxation upon the average amount of de-
COSTS IN CRIMINAL CASES.-B was subpænæd as a
witness on behalf of the state in a criminal action, Chase.
pending in the district court of Shawnee county, He DONATIO CAUSA MORTIS- DEPOSIT IN BANK.-A attended the court in obedience to the subpana. deposit in a savings bank may be the subject-matter of . nolle prosequi was entered on the trial of the action a valid donatio causa mortis, and the gift may be by the prosecuting attorney, with leave of the court. proved by the delivery of the bank book representing Afterwards B brought an action against Shawnee the deposit, accompanied by an assignment to the county to recover fees and mileage as a witness. Held. donee. Such a delivery may be consistent with other that the county is not liable. State v. Campbell, 19. purposes, but if it is clear upon the evidence that the Kas. 181. Opinion 'by HORTON, C. J. All the justidonor intended by the act, and in contemplation of ces concurring. Reversed. - Commrs. of Shawnee death, to make the gift to the donee as a firal disposi Co. v. Bollinger. tion of the property, it is a good donatio causa mortis.
CHATTEL MORTGAGE- DEFECTIVE DESCRIPTION Grover v. Grover, 24 Pick. 261; Sessions v. Mosely, 4
-DELIVERY.-Where a chattel mortgage fails to duly Cush. 87; Bates v: Kempton, 7 Gray, 382; Chase v.
describe the property, the defect is cured by the subRedding, 13 Gray, 418: Tillinghast v. Wheaton, 8 R. I.
sequent delivery of the property to the mortgagee as 536; Constant v. Schyler, 1 Paige, 316. Opinion by
against parties who have not acquired any rights or in. ENDICOTT, J.-Sheedy v. Roach.
terest before such delivery. The delivery, in such a CONTRACT_VOID PATENT-In consideration of an case, must be such an actual transfer of the possession exclusive license, for the term of about one year, to and control of the property that it it was destroyed manufacture certain grate bars under a patent, and of
the loss would be that of the mortgagee. A conthe undertaking of the plaintiff to convey said patent structive possession will not avail. Opinion by HORto the defendants on terms set forth in a written con
TON, C. J. Reversed. All the justices concurring.tract, the defendants undertook to pay the plaintiff a Parsons Savings Bank v. Sargent. certain sum on the first day of each month till the ex INCORPORATION OF CITIES BY SPECIAL ACT-ILpiration of the year, the sum so paid to be counted as LEGAL LEGISLATION.-1. The act of the legislature a part of the agreed price of the patent, if the defend
entitled “An act authorizing cities therein named to ant should elect at the end of the year to buy the pa become cities of the second class," approved February tent, but otherwise to be regarded as payment for 29, 1872, (Laws of 1872, pages 231, 232,) is a special act the license. Before the second monthly payment fell
conferring corporate powers upon four particular mu.. due the defendants discovered that the patent was
picipal corporations, and is therefore unconstitutional void for want of povelty in the alleged invention, and
and void, being in contravention of section 1, of article refused to make further payments for that reason:
12, of the constitution, which provides that “ the legisHeld, that the defendants were not liable on their
lature shall pass no special act conferring corpromise. Opinion by SOULE, J.-Harlow v. Putnam.
porate powers.” 2. The city of Council Grove was orREAL ACTION-DISCLAIMER-EASEMENT.-In a real ganized as a city of the second class, and under said action in wbich the tenant disclaimed all title, and the special act, and was never organized as a city of the demandant replied denyiug each and every allegation second class under any other act, and has never had a in the disclaimer, evidence which would warrant a jury population of two thousand inhabitants. Held, that
the tenant had claimed an easement only ! said city is not rightly or legally a city of the second in the demanded premises, and had enjoyed the same
class. Opinion by VALENTINE, J. Judgment for is not an answer to the disclaimer. There may be cases
plaintiff, All the justices concurring.-Statev. Maley. in which the tenant, although disclaiming title, may have had such an actual occupation of the premises as to entitle the demandant to consider himself disseized, although such occupation was by inadvertence, and
BOOK NOTICE. without any intention to claim title to the soil and freehold. Props. Locks & Canals v. Nash. & Low. R. R., 104 Mass. 1. Bnt where it is plain that the claim of the
A TREATISE ON THE LAW OF NOTICE, as Affecting tenant is merely an easement, and that he has had no
Civil Rights and Remedies. By WM. P. WADE. other use than that of such easement, the demandant
Chicago: Callaghan & Company. 1878. can not elect to consider himself disseized and recover
There can be no objection raised to this work, that against the tenant compensation for such use. Judg
the branch of law which it discusses has been already ment for tenant for costs, and for demandant for
fully treated by older and better known writers. Too possession. Opinion by LORD, J.-Cole v. Inhabs. of
many of the recent treatises on law will merit this Eastham.
criticism. An examination of a new work on an old
possession of a hundred or so more authorities. But ABSTRACT OF DECISIONS OF SUPREME the clearness of style, and the thorough comprehenCOURT OF KANSAS.
sion of his subject, which was a characteristic of the
soon comprehends that the object of the publication
was not so much to fill any wants of the profession for
such a work, as to minister to the wants of the publisher HON. ALBERT H. HORTON, Chief Justice.
and author. “
But, as we have said, the book before us is open to
no such criticism. It discusses a branch of the law not
before the subject of a separate treatise, though more PRIVATE BANKS_TAXATION OF DEPOSITS. — Un than one have, during the past year, been announced. der sec, 23. ch. 34, Laws of 1876, a private banker is “In preparing the book for publication,” says the au
appended note. He will find there some authorities not noticed in his criticism.
thor in the preface,“ no model has been followed, for the reason that there was no model to follow.” He has not attempted to improve upon other authors who have written upon much discussed subjects, but has explored, almost alone, a new field. His labors, we are assured, will be appreciated by the profession; it is not too much to say that a library will be far from complete whose shelves do not contain the only treatise on so frequent a branch of the law as the law of Notice.
Mr. Wade's method of treatment is judicious and analytical. The book is divided into eight chapters, in which the following questions are discussed. 1. The different kinds of notice--actual and constructive. 2. Notice to purchasers, as by registration, possession &c. 3. Notice by wbich certain liabitities are created. In this chapter notice of acceptance of proposals, of guaranty, of assignment and to carriers and other bailees is treated upon. 4. Notice by which liability is extinguished or modified. In this chapter the important subject of notice by carriers, limiting their liability, is examined at considerable length. 5. Notice of agency. 6. Notice of dishoner of commercial paper. 7. Publication of notices. 8. Practice and pleading. The book contains over 600 pages, exclusive of a table of cases and an exhaustive index. The printing and binding are good. We close this brief “notice" with the remark that the author is a well known member of the bar of this city, and has dedicated his work to the former editor of this JOURNAL in kind and flattering terms.
A subscriber draws attention to what he considers a great hardship in the effect of the decision of the Supreme Court of this state, in City of Jefferson v. | Opel, 7 Cent. L. J. 46, 229. He thinks it is in violation
of rule 13, referred to by T. H. B, ante p. 229. But his most serious complaint is that “it is not supported by any prior authority, or decision in this state. The cases referred to and relied on by the court are United States v. Gamble, 10 Mo. 459, in which there was no bill of exceptions filed at all; and State v. Wall., 15 Mo. 208, where, also, there was no bill of exception; and Christy's Admr. v. Meyers, 21 Mo. 112; and Sturdivant v. Watkins, 47 Mo. 177, where the court say there was no bill of exceptions. None of them were cases of “skeleton bills.” The writer of this has been practicing in this state for twelve years, and knows that during all that time it has been the constant practice to make bills of exceptions like that in the Opel case (never knew one otherwise), and for clerks to send their transcripts up in the same condition. And until that case no question ever was made as to the propriety of it. Besides, the deputy clerk of the Supreme Court, since that casc was decided, stated to the writer that he thought three-fourths of the transcripts in that court were subject to the same objection as that in the Opel case. When these things are so we think it would have been well for the court to at least give the bar notice that they intended to establish a new rule. For it is a new one. Or if you say there was none before and that they should make one, the result is that many find themselves in that court with an improper transcript, which, heretofore, has been all right.”
QUERIES AND ANSWERS.
QUERIES. 63. PROMISE — CONSIDERATION.- A landlord, A, gives a tenant, B, legal notice to quit on or before a certain date. After that date B is still in possession, and refuses to quit unless A pays him $100. A being desirous of re-building the premises, and finding delay will be vexatious and costly, pays the $100. Can he subsequently recover this sum from B?
MR. JUSTICE MILLER has entirely recovered from his late illness. The next term of the Supreme Court of the United States will commence on the 14th of next montb. - Baron Blackburn, Mr. Justice Barry, of the Irish Queen's Bench, Mr. Justice Lush, and Sir James F. Stephen, of England, are the commissioners appointed to examine and report upon the proposed English criminal code.— Blackstone's Commentaries are being translated into Chinese by the Secretary of the Chinese Legation at London.
64. DOWER-HOMESTEAD.-Under the statute of Illinois, the widow of a deceased husband is entitled to one-third of all the real estate which he left at his death as dower, and in assigning dower she is entitled to her one-third in tbe lands upon which the dwellinghouse, barn, etc., are situated; and in addition to that she is entitled, under the statute, to a homestead which shall include dwelling-house, etc., and real estate to the value of one thousand dollars. In a proceeding to assign dower and homestead, how should they be assigned with reference to each other, they being separate and distinct interests?
[7 Cent. L. J. 219.) See Krettle v. Newcomb, 22 N. Y. 249, and Maxwell v. Reed. 7 Wis. 582, wherein it is held that such a prospective waiver of exemption is void as against the law.
La Crosse, W s.
JUDGE BAXTER, Circuit Judge of the United States for the Sixth Circuit, in passing upon an application in the Federal Court at Cincinnati, last week, to allow the receiver of a railroad to be garnished, took occasion to remark that the practice of placing railroads in the hands of receivers is altogether too common. It has become a great evil. He cited the case of a railroad in Georgia, which cost $15,000,000. The receiver, who was in charge for three years, issued certificates of indebtedness to the value of $1,500,000, and when the road was sold the proceeds were not sufficient to pay the certificates. In another case in Detroit, a road cost over $8,000,000. When the road came to be sold, eminent counsel requested the judge to fix the minimum price for the sale, suggesting that said price should be a sum sufficient to cover the charges of the receiver and his lawyer. Judge Baxter said he bad observed that when a receiver got possession he generally ran the road for the benefit of himself and his em ployees, including the attorneys, and he (the judge) would hereafter see that there should be a reform in his circuit for the benefit of the creditors and stockhold
ery. If the proceedings to sell and realize were bot | vigorously pushed to a conclusion, he would vacate the
receivership and give the road back to the company.
We would call the attention of our correspondent, A. H. K., whose paper on “Negotiable Paper-Extent of Recovery” appeared in our last issue (p. 238), to the dec.sion of the Supreme Court of the United States in Cromwell v. Sac County, 6 Cent. L. J. 209, and the
there, thoney, whi and to /ronal by
The Central Lam Journal. | mission of a crime, it is clear that no bur
glary was committed, there being no felonious
intent in entering the building, or taking the SAINT LOUIS, OCTOBER 4, 1878. money. If the act of entering amounted to
burglary the sheriff, who counseled and adCURRENT TOPICS.
vised it, was privy to the offense, but no one would seriously contend, on the foregoing
facts, that the sheriff was guilty of burglary.” In People v. Collins, 2 P. C. L. J. 62, recently decided by the Supreme Court of California, the defendant had been convicted of THE Illinois statute regulating the sale of burglary under the following circumstances. railroad tickets has been declared constituIt appeared that he had requested one P to en tional by two of the circuit judges of that ter a certain building in the night time and to state. The statute which was passed in April, steal therefrom a sum of money, which he | 1875, and is entitled “ An act to prevent knew to be concealed there, the money, when frauds upon travelers and owners of railroads, stolen, to be divided between them. Instead etc.,” makes the sale, transfer or barter for a of accepting and acting upon this proposal, P
consideration of any railroad or steamboat immediately informed the sheriff of it, who,
ticket or check, by any person other than the after consultation with the district attorney,
agents of the company appointed for that puradvised P to pretend to the defendant that he
pose, an illegal act, subject to fine or imprisonaccepted the proposition and would carry out
ment. In People v. Walser, 11 Ch. L. N. 12, the enterprise. It was, therefore, agreed be
the defendant was indicted under this act, in tween P and the sheriff that when the money
the Criminal Court of Cook county. A mowas taken it should be marked with acid so
tion was made to quaslı the indictment, on the that it could be identified; and that when the
ground that the act was not within the scope money was delivered to the defendant a signal
of the police power of the state, but was an should be given by P to enable the sheriff to
unwarrantable restriction upon the rights of arrest the defendant with the money in his
private property, and, therefore, unconstitu
tional, which was overruled. McALLISTER J. possession. This programme, as agreed upon by P and the sheriff, was carried into ef
MOORE, J., concurring, after discussing at
length the power of the legislature to regulate fect; P entered the building, secured the
the business of common carriers, says: “Nothmoney, marked it with acid, delivered a part of
ing can be clearer than that, in this state, railit to the defendant, gave the signal as agreed
road companies, so far, at least, as concerns upon, and the sheriff thereupon arrested the defendant with the money in his possession.
the safety, comfort and convenience of pasThe court below instructed the jury that if it
sengers, are proper subjects of the police
power.' Of this there can be no question. If was agreed between P and the defendant that
the business itself be subject to the police the former should enter the building and steal
power, then so must all its incidents and acthe money, to be divided between them, and
cessories be subject to it. All experience if in pursuance of the agreement, P did enter
teaches that the necessities of the business rethe building and take the money and divide it
quire the issuing and use of tickets. They with the defendant, he was guilty of burglary,
are as necessary to the convenience of both and the jury should so find “without regard
traveler and carrier as baggage-checks or wayas to the part taken in the offense by the wit
bills in case of freight. The business and all ness P, or as to the motives or intentions of
its common incidents being proper subjects of said P.” On appeal this was held error, and
the police power, then it follows from settled the conviction reversed. “If P entered the
principles that the nature and character of the building,” sid the court," and took the
police regulations must be determined by the money with no intention to steal it, but only legislative, and not the judicial, branch of the in pursuance of a previously arranged plan be government. After giving this matter much tween him and the sheriff, intended solely to consideration, we are of the opinion that the entrap the defendant into the apparent com- | act in question, being a matter of mere police
Vol. 7-No. 14.
regulation of a public business, is constitu may be presumed to have influenced the action tional and valid. There may arise cases where of other creditors, perhaps to their prejudice, the contract for carriage was made in another and to have injuriously affected their rights. state, which constitutional principles would | Under these circumstances, our judgment is prevent falling within the range of this act, but | that the plaintiff can not, after having brought that is no ground for holding the act void as about a discharge of the bankrupt by his volto all cases." It follows from this that the untary act, be heard to impeach that discharge business of “ ticket scalpers" is as unlawful in on the ground of fraud, unless he can show Illinois as is liquor selling in Maine or gamb that at the time he gave such consent he did ling in Massachusetts.
not know that the debt was created by fraud." The demurrer was sustained with leave to
amend the petition by charging such fact.Among the rulings and oral opinions in the Fleming v. McLean, related to the law of United States Circuit Court at St. Louis, last costs. The case, a suit in equity, bad proweek, are the following:-In Goss v. Chamber ceeded to a final decree in this court, and bad of Commerce Association, a demurrer was filed been appealed to the Supreme Court, where to the petition, and after argument, DILLON, the decree had been modified, and an order J., being of opinion that the defense sought to made that the defendant should pay the costs be set up under the demurrer did not fairly of the court below, and the complainant, who arise under it, advised the defendants' counsel | had appealed, the costs of the Supreme Court. to plead their defense specially, and bring it up The complainant, in perfecting his appeal, in that way. McKeighan, for the defendant: had paid to the clerk the costs of the tran“That will ohlige us to confess the making of script, amounting to a considerable sum, and this contract, which we allege to be founded in he now moved, under the order of the Suan unlawful consideration and void.” DILLON,
preme Court, to retax these costs against the J.: “You have evidently acquired a curious defendant, contending that they were a part idea of pleading in this state.” McKeighan : of the costs of the court below. But the court, “We have acquired it from our Supreme ¡ Treat, J., giving the opinion, DILLON, J., Court.” DILLON, J.: “The rule in this
concurring, denied the motion. When an apcourt is that you may file your general denial,
| peal is granted, the cause, in contemplation of and also your special defense; and if your law, has passed out of this court and into the special defense fails, this will not prejudice
Supreme Court, and costs expended in per: any defense you may properly make under
fecting an appeal are to be deemed costs of your general denial.”—In Eisenmeyer v. Yae that court and not of this court. ger, the question was distinctly presented by demurrer, whether the naked fact that a creditor has signed a consent to the discharge of a THE SUABILITY OF COUNTIES IN THE bankrupt from a debt created through fraud,
NATIONAL COURTS. and hence not dischargeable under the terms | The question whether counties are liable to of the bankrupt act, will bar a subsequent suit in the national courts has several times action by the creditor upon such debt. The | arisen. In McCoy v. Washington County, 7 question appears never to have been decided Am. Law Reg 193, a suit on railway aid in this country. The court, Dillon, J., | bonds, which was tried before Mr. Justice giving the opinion orally, held that, in the Grier, at circuit in the Western District of absence of an allegation that at the time he | Pennsylvania, in 1859, it was contended that consented to the discharge he did not know the county being merely a subordinate political of the fraud, the consent to the discharge division of the State of Pennsylvania, was not concluded him from subsequently suing the a citizen of that state within the meaning of bankrupt on a cause of action, wbich had the Constitution or the act of Congress, and, been filed as a claim in the Court of Bank therefore, not suable in that court. To this ruptcy, and on which he had taken a dividend. Mr. Justice Grier answered: “Though the "As the law then stood, the bankrupt could metaphysical entity called a corporation may not have been discharged without the consent not be physically a citizen, yet the law is well of the plaintiff. His action in the premises 1 settled that it may sue and be sued in the