Page images

express direction from the appellant as to the application of the payment made, the appellee had the right to elect for himself the application of the payment. HOWK, J.: “The eighth instruction did not contain a full and correct statement of the law applicable to the case. It is not necessary that the application of the payment should be made by an express declaration of the debtor, for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it. A direction may be evi. denced by circumstances as well as by words. A pay. ment may be attended by circumstanses which clcmonstrate it. 7 Wharton, 14. Where, as in this case, the payment made would exactly pay the sum due on one of the bills, and such payment would largely overpay the sum due on the other of said two bills, these are circumstances which, in the absence of express direction, the jury might well consider in determining whether or not it was the intention of the debtor, in making such payment, to apply or appropriate the same on one of said two bills which it would exact ly say." Judgment reversed.-Adams Express Co. v. Black.

RESULTING TRUSTS — ADVANCEMENT- MARRIED WOMEN.-Action by a divorced wife against her former husband, to recover and quiet the title to certain real estate. The defendant answered that he had purchased the real estate with his own money, but bad the patent issued to his wife, because he had already taken as much land in his own name as the government would sell to one person. In a second paragraph of answer he relied upon an express promise of the wife, at the time of the purchase, that the property shouid be his. Demurrers to both paragraphs of answers were sustained. NIBLACK, C. J.: Prior to the act concerning trusts and powers, of 1852, it was a recognized rule of law in this state, that where, upon the purchase of real property, the conveyance of the legal title was taken in the name of one person, while the money was paid by another, a resulting or presumpt

ve trust immediately arose in favor of the person paying the purchase money. If, however, the person in whose name the conveyance was taken was one for whom the party paying the purchase money was under a natural and moral obligiltion to provide, no such re. sulting trust arose, but, on the contrary, the transaction was regarded prima facie as an advancement for the benefit of the grantee in the conveyance. (Hill on Trustees, 97 and 98; Washb. on Real Prop., 2, 170.) To make the declaration of an express trust effectual, the person declaring it must be capable of making such a declaration. In the case at bar the plaintiff was a married woman, the wife of the defendant at the time the alleged declaration of an expressed trust was made by her. She was, therefore, incapable of making such a declaration. (2 Washb., 205.) Judgment affirmed.

F, in 1868, formed a partnership, and carried on the lumber business. The name of the appellant did not appear in the firm-name, nor is it shown that he was known as a partner. They carried on the business some months, and then appellant withdrew. Appel. lees had no dealing of any kind with the firm while it existed, and had no knowledge of appellant's connection therewith. Soinetime in 1870 appellees began to sell lumber to F, and so continued for sometime. This is a suit against both of the brothers, as partners, for a balance due. The proof showed that appellees had no knowledge of the existence of the firm while the part. nership existed, and knew nothing of either of the partners until nearly a year after the partnership ceased. The court charged the jury that appellant, as an out-going partner, was chargable fer subsequent debts, unless tnere had been public notice of the dissolution, or notice thereof had acutually come to appellees be. fore they gave the credit. Held, erroneous. DICKEY, J., said: “The duty of a retiring dormant partner to give notice of the dissolution of the partnership, is a duty which he owes to those who, before that time, had some knowledge of his connection with the firm. To stranges having no such kuowledge, he owes no such duty. As to them, he can only be charged as a partner (when in fact he was not), by showing that he in some way mislead them.” See 37 III. 81. Reversed. Nussbaumer v. Hipple.

ASSUMPSIT-LEGALITY OF A CUSTOM NOT FOR THE JURY-VISITOR BOUND BY RULES OF BOARD OF TRADE WHEN TRADING THEREON.-This was an action of assumpsit brought by appellee against appellant, the Chicago Packing Co., upon a sale and delivery by appellant of 200 barrels of mess pork to appellee. The plaintiff avers that the sale, delivery and payment therefor, and further avers that a portion of the pork was unsound. On the trial instructions were given by the court, to which the appellant takes exception. The first one given submitted to the jury the question whether the custom on the board of trade that the buyer of produce taking it without inspection takes the same at his own risk, is or is not one "intended to relieve a person from the obligations of common honesty and fair dealing," or is or is not "in contraven. tion of public policy." Held, erroneous. DICKEY, J., said: “Whether a given custom does or does not exactly, is or is not universally recognized in the locality in question are matters of fact for a jury; but whether a given custom be valid or invalid is always a question for the court." Exception was also taken to the action of the court in refusing an instruction to the effect that a visitor on the board of trade trading with the members is bound by the rules and regula. tions of said board, Held, that the refusal to give such an instruction is erroneousDICKEY, J., said: “A party visiting the board of trade on a visitor's ticket, and who when there undertakes to exercise the rights of a member of the board, and permits another to deal with him as such, is estopped to deny that he is a member, and thereby relieve himself from the responsibilities which would rest on members of the board dealing in the same manner." Reversed. Chicago Packing Co. v. Tilton.

DAMAGES — INJURY TO PROPERTY BY MISUSER OF PUBLIC STREET. - This was an action brought by appellee against appellant, a city, for injuries to his residence situated on grounds adjoining a street, in which appellant erected water works near to his residence for the use of the city, by which the use of the property of plaintiff was rendered less valuable. By the use of the engine for generating steam, smoke and soot are cast upon plaintiff's residence so as to interfere ma. terially with its comfort. In the court below judgment went for the plaintiff. The appellant (the city) insists on appeal that owning the fee to tha public streets in



[Filed at Ottawa, October 3, 1878,1

Hon. JOHN SCHOLFIELD, Chief Justice.


BENJAMIN R. SHELDON, Associate Justices.


the city, "appellant is not confined to the mere right for such obstruction." Held, that the right of way to pass over and upon them * * * * but had law. claimed being covered by navigable water, the plaintiff ful right to erect and operate these works without re had no other rights therein than those of the general sponsibility to the adjoining proprietor for any injury public. Navigable waters are great highways, and no necessarily resulting therefrom. Held, that the plain individual can acquire a private right therein any tiff should recover damages. DICKEY, J., said: more than a continuous use of a street by a man from "Property may be dedicated to the public for a great his house to his place of business for any term of variety of purposes. It may be for the purposes of a years gives him a private rigit of way over the soil of street; it may be for pleasure grounds; it may the street. Opinion by LORD, J.- Thayer 0. New be for burial purposes; it may be for the loca Bedford R. R. Co. tion of water-works. Where a person buys a city

AGREEMENT IN RESTRAINT OF TRADE. - The lot bordering upon a tract of ground set apart or

plaintiff and defendant were partners engaged in the dedicated to any public use, be takes it subject to all

manufacture and sale of stoves and tin-ware in D. the anuoyances incident to the use of the property for

They dissolved their partnership, and the defendaut the purposes of the dedication. If his lot borders upon a

gave the plaintiff a writing which, after reciting the tract set apart for a place of burial, no matter how

consideration and terms of the sale of the defendant's disagreeable it may be to live in such position, he takes

interest in the assets and good will to the plaintiff, it subject to that disadvantage. If he buys his lot ad

provided: "and I hereby agree not to manufacture, or joining a street he takes it subject to the right of the

sell, or become engaged in said business, either for public to use the street for all the appropriate pur mysell or others hereafter in the town of D, under the poses of a street. And this is so whether the fee of forfeiture of $1,000, to be paid to said plaintiff in case the street be in the municipal corporation, or in the of a breach of these conditions:" Held, that naming state, or in the adjoining proprietor; for the fee in such

a sum to be paid as liquidated damages does not in itcase is beld for the use of the public as a street with self conclusively establish that the parties contemall its incidents. But it is not conceived that the erec plated the right to do the act upon payment of the tion of a water tank in the center of the street occu compensation; and that the object of this agreement pying one-half of the width thereof and the erection was to secure absolutely to the plaintiff the exclusive and operation of a steam engine in connection there right as against the defendant to pursue said business with, even for the purpose of supplying the city and in D. Opinion by ENDICOTT, J.-Ropes v. Upton. thr residents thereof with water, is one of the uses of a

SHERIFF-LIABILITY FOR PROCEEDS OF PROPERTY street as such, for which the ground may be appropri

ATTACHED.-). Where a suit in which personal propately used under a dedication thereof as a street. The

erty has been attached and sold does not proceed to owner of a lot adjoining a street does not take the

judgment, but the entry of “neither party” is made in same subject to any such easement.” Affirmed.-City

it, prima facie the proceeds in the hands of the officer of Morrison 0. Hinckson.

are to be delivered to the defendant in that suit; and that being the official duty of the officer, the sheriff, if the attaching officcr is one of his deputies, is liable for

the deputy's failure to perform it. 2. In the case at ABSTRACT OF DECISIONS OF SUPREME bar, while the proceeds were in the hands of the dep. JUDICIAL COURT OF MASSACHUSETTS. uty, and the action pending, the defendant made and

delivered to the plaintiff a paper which, after reciting

the existence of the suit, the attachment and sale July Term, 1878.

thereunder, aud admitting the debt and that it was

larger than the value of the property attached, proHON HORACE GRAY, Chief Justice.

vided that the defendant did "ratify and confirm said JAMES D. COLT,

sale by said sheriff, and consent that the remaining SETH AMES,

property may be sold by the sheriff, and hereby sell. MARCUS MORTON,

assign and transfer to said bank (the plaintiff) all of WILLIAM C. Endicott, Associate Justices.

said personal hroperty attached and trusteed and the OTIS P. LORD,

proceeds thereof, the same to be credited by said bank " AUGUSTUS L. SOULE,

as part payment of any sum that I am owing it, and

to be applied by said bank as part payment thereof;" TORT-DAMAGES—BURDEN OF PROOF.-In an ac Held, that it was the official duty of the deputy who tion to recover damages for injuries occasioned to the made the sale to deliver the proceeds to the plaintiff, plaintiff's intestate by a fall from a defectively con and that for the neglect of the deputy to do so, the structed platform, the plaintiff is only entitled to re sheriff would be liable. Opinion by LORD, J.-First cover such damages as he proved were sustained by Ward Nat. Bank v. Thomas. his intestate; and while as an abstract proposition of

MARRIED WOMAN-LIABILITY ON NOTE-INDORSElaw, the suffering endured by the intestate from the time he fell until he struck the ground might be an

MENT.-Since the Statute 1874, ch. 184, removing the lement of damage, yet, in the absence of evidence,

civil disabilities of married women, except the power whether any mental terror or distress was so suffered

to make contracts with their husbands, a married woby him is wholly a matter of conjecture, and the plain

man would be liable upon her indorsement on a promtiff can therefore recover nothing on this account.

issory note made payable to her by her husband, or by Opinion by MORTON, J.-Kennedy v. Standard Sugar

a firm of which he is a member; for an indorser, when Refinery.

sued upon the contract between him and his indorser,

is not at liberty to deny the validity of the original OBSTRUCTION OF NAVIGABLE WATERS_Right or

note, or the capacity of the maker, for the purpose of WAY. In a petition for a sheriff's jury to assess dam

defeating bis own liability. Burrell v. Smith, 7 Pick. ages, the petitioners claimed, among other things,

291; State Bank v. Fearing, 16 Pick. 533; Prescott "that by long use, adverse, continuous and public, and

Bank y. Caverly, 7 Gray, 217; Erwin v. Downs, 10 N under claim of right, and exceeding twenty years,

Y. 575. Opinion by GRAY, C. J.-Kimworthy o. they had acquired a right of way and passage through the Easterly docks to their dock and wharf which had

Sawyer. been obstructed by the respondent railroad company! TORT-INJURY OCCASIONING DEATH.-In two acand that they had a right in law to recover damages I tions of tort, which were tried together, it appeared


865; Pugh v. Robinson, 1 Tenn. 116;

Commonwealth v. Hutchinson, 2 Pars. 45. = SAINT LOUIS, DECEMBER 13, 1878.

In Langston, Admr., v. Aderhold, recently CURRENT TOPICS.

decided by the Supreme Court of Georgia, the plaintiff brought suit on a note, on the

back of which was the following indorsement: The case of White v. State, lately decided “To avoid suit upon this note for the present, by the Court of Appeals of Texas, decides a and to prevent any statutory bar, I hereby repoint of practice in criminal law, which de

new my obligation as security on the same, serves noting. The prisoner was indicted for this September 19th, 1873; signed, H. D. murder and convicted of manslaughter. A Aderhold.” Defendant set up as a defence, motion in arrest of judgment was made on that he was induced by the representations of the ground that the conviction for man plaintiff, that the suit was not barred, to make slaughter was barred by the statute of limita the indorsement, in ignorance of the law and tions. The court held that, this fact appear bis rights, and that he was only surety on the ing, the motion in arrest should have been note, and pleaded the statute of limitations. sustained, and the cause dismissed. “It is In addition to the foregoing facts it was proved not necessary,” said the court, "for a defend that the principal on the note resided in ant relying on the statute of limitations, to Georgia, when the note was made, and afplead it in bar. It devolves on the prosecu terwards removed to Tennessee. BLECKLEY, ting power to show a'i offense within the stat | J., in delivering the opinion of the court, in utory period. It will be seen by the verdict speaking of the renewal of the indorsement of the jury that the defendant was acquitted after being barred lay the statute of limitations by the jury of the charge of murder, and we said: “But the statute of limitations does not think the crime of manslaughter was barred work a discharge. The statute goes to the by the statute of limitations at the time the in remedy, and does not act directly upon the dictment was found. This is a new question right. The right remains intact. A discharge in this state, and we are called to pass upon is effective all over the world, but the operait with but little aid from elementary works or tion of limitation acts proper is restricted to adjudicated cases. The limitation of the time the particular state or country for whose courts within which actions and prosecutions are to be they are enacted. That an action was barred brought is a creation of statute and does not | by the limitation laws of one country or state, exist at common law. In England there never | would not avail a debtor should he subject have been any general statutes of limitations of himself to suit in another jurisdiction. The criminal prosecutions, so that, says Mr. Chitty, latter would administer its own limitation law, • instances have frequently occurred in which

paying no attention to those of another state or parties have been convicted and punished

country. * * * * Here all the facts were many years after the crime had been forgot

known, and both parties acted honestly and in ten.' Some of the English statutes creating

good faith. There was no misplaced conficrimes contain a limitation clause. Bishop on

dence; the parties did not occupy confidenStatutory Crimes, sec. 251." See Common

tial relations with each other, but dealt at wealth v. Ruffner, 28 Penn. St.. 259; State v.

arm's length; if the surety choose to act upon Robinson, 9 Foster, 274; McLane v. State, the opinion of the creditor instead of consult4 Ga. 335; State v. Hussey, 7 Iowa, 409; ing other counsel, he cannot urge that he was People v. Van Santvoord, 9 Cow. 660; State mislead, where there was no intention to v. Hobbs, 39 Me. 212 ; State v. Rust, 8 Blackf. mislead.” Certain it is, that the promise had 195; Steel v. Smith, 1 B. & A. 99; Rex v. || for its foundation a moral right; it was valid Mason, 2 Term. 581; United States v. Wat- in the forum of conscience. It is not that kins, 3 Cr. C. C. 341; Rex v. Fearnley, 1 kind of a mistake of law against which equity Term. 320; United States v. White, 5 Cr. would grant relief. It is not a mistake which C. C. 73; Rex v. Saunders, 2 Strange, I would work an injustice to one party, in give

Vol. 7—No. 24.

« PreviousContinue »