Page images
PDF
EPUB

plaintiff rests his case upon the construction to be placed upon the act of 1836. Counsel for the rule failed to present any brief, and hence the burden was placed upon our shoulders to ascertain whether a gentlewoman, married or single, may or may not be appointed an arbitrator.

Proceedings before arbitrators we find to be a part of the common law of England for many centuries. In Fitzhebert's Abridgment, page 43, edition of 1577, we find this subject discussed. The first act of Parliament we find on the question of submitting cases to arbitrators, is William the 3d, chapter 15, which went into force on the 11th day of May, 1698. In this statute it is provided that controversies may be submitted to "any person or persons as abritrator. 3 Evans' Statutes 360. We have no hesitation in saying that the framers of the act of 1836 used the word " person" in that statute the same as it was used in the statute of William.

If we are correct here then our road is clear in this matter. The reading on this statute is, that neither natural nor legal disabilities hinder any one from being an arbitrator. 1 Reading on the St. 103.

[ocr errors]

Lord Bacon says that arbitrators are persons indifferently chosen to determine the matter in controversy, and then adds that infants, persons excommunicated, out-lawed, etc., may be arbitrators, for every person must use his own discretion in the choice of his judges." 1 Bacon's Abr, 317; 3 Viner's Abr. 41.

In the case of Mathew v. Ollerton, 4 Mod. 226, a man took a horse from a bishop. The arch-bishop brought this action, and the defendant agreed to submit the same to the bishop as arbitrator. The bishop decided in his own favor, whereupon the defendant moved to set aside the award because the bishop was interested in the case. But Lord Hale refused after argument for the reason that the defendant had selected his judge to decide his case.

The defendant in that case evidently overlooked the fact that the bishops of modern times make wills, while the apostles did not. Had the defendant given this subject the least thought he certainly would not have made the plaintiff in his case sole arbitrátor to decide his case.

The Roman law expressly provided that if a man be constituted arbitrator in a dispute to which he is a party, he cannot pronounce an award. Kyd's Award 71.

The Roman law in this respect corresponds with the fifth paragraph of the 40th section of the act of 1836; but the first paragraph of the same section is in strict accordance with the decisions at common law.

In the first paragraph of the 40th section it is expressly provided that the parties may select any one person whom they shall concur in choosing. 1 Purd. Dig. 82, § 40.

In West's Symboliography, 163, it is said that a married woman cannot be an arbitrator. This however is the rule of the civil law. Justinian says that it is contrary to the proper character of the sex to allow women to intermeddle with the office of a judge. Kyd's Award, 71; Wood's Civil Law, 327. In Kyd on Awards, 70-1, it is said that an unmarried woman may be an arbitrator. To sustain this the author cites the Duchess of Suffolk case, 8 E. 41; Br. 37.

In 2 Petersdorff Abr. 129, it is said that it is no objection to an award that the arbitrator is a married woman. Gentlewomen have also held and exercised judicial authority. Anne Countess of Pembroke held the office of sheriff of Westmoreland and exercised the duties thereof in person. At the assises of Appleby she sat with the judges on the bench. Hargr. Co., Lit. 326; 8 Bac. Abr. 661. Her right to sit upon the bench as a judge will be fully understood when it is borne in mind the sheriffs at that time held court and exercised

judicial power. Sheriffs had power to inquire of all capital offenses and issue process and enforce the same.

But this power was afterward restrained. By Magna Charta, chapter 17, it was enacted "that no sheriff shall hold pleas of the crown." 8 Bacon's Abr. 688.

Eleanor was appointed Lord Keeper of England. It would seem from the history of this noble woman, that she actually performed the duties of Lord Chancellor in person. It is said of her that in the summer of 1235, King Henry appointed her Lady Keeper of the great seal. She accordingly held the office nearly a whole year, performing all the duties, as well judicial as ministerial: she sat as a judge in the Aula Regia. These sittings were however interrupted by the accouchement of the judge when she was delivered of a daughter. After retiring from the bench, and the appointment of her successor, she was delivered of a boy, who afterward became Edward I of England. 1 Campbell, L. L. Ch. 134-7. Without referring in any manner to Eve, the first arbitrator appointed in this world to decide the controversy about eating the forbidden fruit, or to the manner Deborah judged Israel, we are clearly of the opinion that under the act of 1836, a woman, married or single, may be appointed arbitrator and may act as such and make a valid award. Rule discharged.

STATUTE OF LIMITATION AND DAYS OF GRACE.

ENGLISH HIGH COURT OF JUSTICE, QUEEEN'S BENCH DIVISION, MARCH 11, 1881.

MORRIS V. RICHARDS, 45 L. T. Rep. (N. S.) 210. The plaintiff in the action sued on a promissory note at three months, dated the 11th March, 1874; the note was therefore prima facie due on the 14th June of the same year; the 14th of June was a Sunday. The writ in the action bore date 14th June, 1880, which was a Monday. It was contended that the right of action was barred by the statute of limitations. Held, that the action was barred, and that, as the mercantile usage in the matter of days of grace had the effect of law, it had the like effect on the custom of bills and notes falling due on a Sunday becoming payable on the previous Saturday.

ACTION on a promissory note, tried before A. Wills,

Q. C., as commissioner of Assize. The verdict passed for the plaintiff on the issue of payment, but the question of law as to the effect of the statute of limitations on the rights of the plaintiff was reserved.

WILLS, Commissioner. This is an action on a promissory note at three months, dated 11th March, 1874, which would therefore, prima facie, be due on the 14th June, 1874. The 14th June, 1874, was a Sunday. The writ in the action bears date the 14th June, 1880. The defense is that the cause of action did not accrue within six years before the commencement of the action. The general rule of law is that when the last of the days of grace falls on a Sunday, the bill or note is payable on the Saturday. It is contended however that though the note was payable on the Saturday, no cause of action arose till the expiration of the third day of grace; in short, that although after business hours on the Saturday, nothing that the maker of the note could do could prevent the state of things then constituted from ripening into a cause of action, none existed until after twelve o'clock on Sunday night--a proposition which there is no difficulty in understanding, but for which, as it seems to me, there is no authority. The so-called period of grace is not a definite period laid down by express enactments; its existence is an incident annexed by mercantile usage to a bill or note. It has its origin and foundation in mercantile usage and nothing else. As late as 1695 it was still the subject of evidence, and proved like any other mercantile custom by the testimony of witnesses. Tassel

v. Lewis, 1 Ld. Raym. 743. It must be taken now to be established as a part of the law mercantile, that a bill or note which according to its terms imports an obligation to pay on a given date, really obliges the party to pay in ordinary cases on the third day after each date; but looking to the way in which that proposition, now one of law, has come to be one of that nature, it is evident that it merely expresses the result of the general practice of mercantile men, and that the proposition must be taken subject to such limitations as are established by equally universal practice. One of those limitations is that if the third day be a Sunday, the bill or note is payable on the previous day. Prima facie, the obligation to pay on the third day in the one case, and on the second in the other, must rest upon grounds of precisely the same kind, namely, it must depend upon the universal practice that payment which prima facie would have to be made on a given day was made at a date later by three days in the one case and by two in the other. I see therefore no ground prima facie for supposing that different consequences are to follow if the third day in the one case, or second day in the other, be allowed to elapse without payment having been made. In either case, prima facie the cause of action is complete, and it lies upon those who set up the distinction to establish it. If it exists at all it must be by virtue of mercantile usage so well recognized among mercantile men as to have passed into law. Not only is there no trace of it in any book, but it is very difficult to see how there could ever have been such a state of things as would have afforded evidence of such a custom, excepting in such a case as the present. There would not and there could not be any thing to bring it to the test, unless a writ could be issued on Sunday, and unless it were frequently material whether the writ were issued, or at all events issuable, on the Sunday instead of the Monday. No custom amongst mercantile men could grow up in respect to such a matter, and it is inconceivable that at the date when Tassel v. Lewis, ubi. sup., was tried before Holt, C. J., any such proposition could have been established by evidence. For these reasons I am of opinion that the cause of action arose as soon as the 13th June, 1874, was passed, and that subject to a second question now to be considered, the writ issued on the 14th June, 1880, was a day too late. It happens however that the 13th June, 1880, was a Sunday, so that no writ could be issued on that day, and it is said that under Order LVII, r. 3, of the first schedule to the Judicature Act of 1875, the cause of action did nevertheless arise within six years of the commencement of the action. I am of opinion that this rule has no such application in this case. The "time for doing any act in this rule refers to times limited by the practice of the court for taking proceedings, and the effect of the rule is that in the cases to which it is applicable, a proceeding which but for that enactment would not, if taken on Monday, be duly taken according to the practice of the court, whether established by definite enactment or otherwise, shall nevertheless be held to be duly taken. It certainly was never intended that the provision should affect the statute of limitations. The writ in this case was "duly issued" on the Monday without the protection of Order LVII, r. 3, and there is nothing in the enactment to alter the actual date of the commencement of the action. For these reasons my judgment must be for the defendants, and with Judgment for the defendants.

costs.

UNITED STATES SUPREME COURT ABSTRACT.

EXECUTOR-SALE BY ORDER OF PROBATE COURT, UNDER WILL DULY PROBATED, GIVES TITLE THOUGH WILL THEREAFTER DECLARED INVALID JURISDIC

TION OF COURT PROVED BY RECORD RECITALS IN DEED VOID SALE-PURCHASER IN GOOD FAITH DISCHARGING INCUMBRANCE TO BE REIMBURSED. - (1) According to the law in force in Louisiana in 1813, the fact that the heir, whether forced or voluntary, of a testator, was absent from the State, gave the probate court jurisdiction to order a sale of the property of the testator's estate. In this case the will of a testator having been duly proved, the probate court which had jurisdiction, upon the petition of the executor made an order for the sale of all the property of the éstate. By virtue of the order the property was sold according to law at public vendue, and was duly conveyed in pursuance of the sale to a purchaser in good faith for a valuable consideration; held, that his title was not affected by the fact that a later will of the testator appointing another person executor, and making a different disposition of his property was discovered and admitted to probate. A sale by order of a probate court is a judicial sale. Moore v. Shultz, 13 Penn. St. 98. Such sales are therefore protected by the rule that a title acquired at a decretal sale of lands, made by a court in the exercise of competent jurisdiction, is not rendered invalid by the reversal of the decree. Ward v. Hollins, 14 Md. 158; Irwin v. Jeffries, 3 Ohio St. 389; Gossom v. Donaldson, 18 B. Monr. 230; Ferque v. Woodworth, 44 Ill. 374. In Gray v. Briguardello, 1 Wall. 627, this court said: "Although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment was in full force, and which they authorized, will be protected." "It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made and authorized the sale." In McCullough v. Miner, 2 La. Ann. 466, it was said: "The jurisdiction of the court was undoubted, and the jurisprudence of the State has long been settled that a bona fide purchaser at a judicial sale is protected by the decree." But it is not necessary to rely solely on this general doctrine. The law which governs judicial sales applies to sales made by order of probate courts. In Thompson v. Tolmie, 2 Pet. 157, this court said: "The law appears to be settled in the States that courts will go far to sustain bona fide titles acquired under sales made by statutes regulating sales made by order of the orphans' courts. When there has been a fair sale the purchaser will not be bound to look beyond the decree, if the facts necessary to give the court jurisdiction appear on the face of the proceedings." In Grignon's Lessee v. Astor, 2 How. 319, it is said: "In the orphans' court, and all courts who have the power to sell the estates of intestates, this action operates on the estate, not on the heirs of the intestate; a purchaser claims not their title but one paramount. The estate passes to him by operation of law. The sale is a proceeding in rem, to which all claiming under the intestate are parties, which divests the title of the deceased." See also, Erwin v. Lowry, 7 How. 181; Griffith v. Bogert, 18 id. 158: Florentine v. Barton, 2 Wall. 210; McNitt v. Turner, 16 id. 352. In Ballon v. Hudson, 13 Gratt. 671, it is said: "Considerations of public policy require that all questions of succession to property should be authoritatively settled. Courts of probate are therefore organized to pass on such questions when arising under wills, and a judgment by such a court is conclusive while it remains in force, and the succession is governed accordingly. A judgment of this nature is classed among those which in legal nomenclature are called judgments in rem. Until reversed it binds not only the immediate parties to the proceeding in which it is had, but all other persons and all other courts." In Lalanne's Heirs v. Moreau, 13 La. 431, the court said: "Sales directed or authorized by courts of probate are judicial sales to all intents and purposes, and the purchaser is protected by the

decree ordering them." In Howard v. Zeyer, 18 La. Ann. 40%, the same court said: "A warrantor is not bound to look beyond the decree of the court ordering the sale of succession property, and he acquires all the right of the deceased to said property and no more. In Grignon's Lessee v. Astor, 2 How. 319, this court said: "Proceedings in a probate court to sell property of a decedent have been held to be proceedings in rem, to which all claiming under the decedent are parties." In McPherson v. Cuntiff, 11 Serg. & R., the court said that the decree of an orphans' court for the sale of laud was conclusive; that the proceeding was purely in rem against the estate of the intestate and not in personam. In Green v. Baptist Church, 27 La. Ann. 573. the court held that purchasers are not bound at their peril to inquire, when property is advertised for sale by an executor, whether any thing has occurred outside the court to destroy the will under which he is acting. In Gaines v. De La Croix, 6 Wall. 719, which was a bill filed to recover certain slaves claimed under a sale made by one Relf, as executor of a will afterward declared invalid, the defendant claimed that his titles, derived by the purchase from Relf, were valid, because he purchased within the year, while the functions of Relf, as executor, were in full force. The court said: "This is true if he purchased in good faith, and the requisites of the law on the subject of the sales of succession property were complied with." The English authorities hold that the record of probate and qualification of executor are conclusive evidences of the existence of the will and of the authority of the executor. In Allen v. Dundas, 3 Term Rep. 130, Buller, J., said in relation to the effect of a probate: “I am most clearly of opinion that it is a judicial act, for the ecclesiastical court may hear and examine the parties on the different sides whether a will be or be not properly made; that is, the only court which can pronounce whether or not the will be good, and the courts of common law have no jurisdiction over the subject. Secondly, the probate is conclusive until it be repealed, and no court of common law can admit evidence to impeach it. Then this case was compared to a probate of a supposed will of a living person, but in such a case the ecclesiastical courts have no jurisdiction and the probate can have no effect, their justification is only to grant probate of the wills of dead persons. The distinction is this: if they have jurisdiction their sentence, as long as it stand unrepealed, should avail in all other places; but when they have no jurisdiction their whole proceedings are a nullity." The same principle was adverted to in Rex v. Vincent, Stra. 481, where on an indictment for forging a will of personal estate, on the trial a forgery was proved, but the defendant producing a probate, that was held to be conclusive evidence in support of the will. To the same effect is Wooley v. Clark, 5 Barn. & Ald. 746. See also, Williams on Executors (6th Am. ed.), 590 and note (x). In Packman's case, 6 Coke's Rep. 19, it was held that though letters of administration be countermanded and revoked, a gift or sale made by the administrator acting under the probate was not thereby defeated. To the same effect is Semine v. Semine, 2 Lev. 90. So in Graysbrook v. Fox, Plowden, 282, it was held that where one is not executor of right but of wrong, yet if he had paid any debt due by specialty or other thing which the law will force the executor to pay, the true executor should have been bound by it and should have been obliged to allow it because the other was compellable to pay it, and the true executor had no prejudice by it, forasmuch as he himself should have been bound to pay it. In Thomas v. Harding, 2 Ell. & Bl., it was said: "When the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor and shall alter the property." The same doc

trine is held in Parker v. Kitt, 1 Ld. Raym. 661. The American cases are to the same effect. In Waters v. Stickney, 12 Allen, 15, it was said that a new dec 'ee of probate establishing a later will or codicil would not necessarily avoid payments made or acts done under the old decree while it remained unrevoked. See also, Public Appeal, 15 Sergt. & Rawle, 99; Kittredge v. Folsom, 8 N. H. 98; Stone v. Peasley's Estate, 28 Vt. 720. In Steele v. Renn, 50 Texas, 467, it was held that "the title of a purchaser in good faith of land from a legatee under a will duly admitted to probate, is not affected by proceedings subsequently instituted and resulting in annulling the will as a forgery." Under the English law by which probate of a will was only required in reference to personal estate, it might well be that the devisee of land took no title if the will were afterward discovered to be void. But in this country in most of the States, Louisiana included, probate is required as well of wills of land as of goods, and the same effect should be given to it as a judicial act as to the probate of wills of personal estate in England. (2) The fact that a court of probate has made an order for the sale of a testator's estate, is of itself an adjudication that all the facts necessary to give it jurisdiction to make the order really existed. (3) The deed of au executor conveying property sold by order of a probate court under which possession had been held for over sixty years, and which recites that the sale was made "after the publications and delays prescribed by law," and the account of the executor of record in the probate court for fifty years, which shows that he had paid a specified sum for advertising the sale of the property conveyed, are competent as evidence to prove the advertisement of the sale, and being uncontradicted are sufficient to establish the fact. Carver v. Jackson, 4 Pet. 83; Woods v. Lee, 21 La Ann, 505. (4) When the purchase-money, paid by a purchaser in good faith of the real estate of a decedent ordered to be sold by a probate court, has been applied to the extinguishment of a mortgage executed by the decedent upon the property sold and constituting a valid incumbrance thereon, and it turns out the sale was irregular or void, the purchaser cannot be ousted of his possession upon a bill in equity filed by the heir or devisee without a repayment or tender of the purchase-money so paid and applied. In Scott v. Dunn, 1 Dev. & Bat. Esq., 425, it was held that where an executor sold lands and applied the proceeds to the payment of the debts under a mistake of his power, and the purchaser was evicted by the devisee, the land in equity would be subjected to idemnify the purchaser to the extent to which the purchase-money was applied to the payment of the debts over and above the personal estate. In Valle v. Fleming's Heirs, 29 Mo. 152, it was held that when land is purchased in good faith at an administrator's sale, which is void because the requirements of the statute are not pursued, and the purchase-money is applied in extinguishment of a mortgage to which such land was subject in the hands of the owner, the purchaser will be subrogated to the rights of the mortgagee to the extent of the purchase-money applied in the extinguishment of the mortgage, and the owner will not be entitled to recover possession until he repays such purchasemoney. To precisely the same effect are Blodgett v. Hitt, 29 Wis. 169, and Hudgin v. Hudgin, 6 Grat. 320. See also, Mohr v. Tulip, 40 Wis. 66; Grant v. Lloyd, 12 Smedes & M. 191; Short v. Porter, 44 Miss. 533; Haynes v. Meeks, 10 Cal, 110. The same rule holds in Louisiana. Barelli v. Gauche, 24 La An. 324; Davidson v. Davidson, 28 id. 269; Jonet v. Montimer, 29 id. 207. See also, Dufour v. Camfranc, 11 Mart. 607; Coiron v. Millaudon, 3 La. Ann. 664; Seawell v. Payne, 5 id. 260; Barret v. Emerson, 8id. 503. The same rule prevailed in the civil law. It was said by Story, J., in Bright v. Boyd, 2 Story, 478. "There is still another

principle of the Roman law which is applicable to the present case. It is that where a bona fide purchaser of real estate pays money to discharge any existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner seeking to recover the estate from him." See also, Dig., lib. 6, tit. 1, 1. 65; Pothier, Pand. lib. 6, tit. 1, n. 43; Pothier, De la Propriete, n. 343. While some of the courts have held that a purchaser at an irregular or void judicial or execution sale is not subrogated to the rights of the judgment creditor (Richmond v. Marston, 15 Ind. 136; Newton v. Colt. 1 Ohio, 233), the weight of authority is against this position. McLaughlin v. Daniel, 8 Dana, 183; Bentley v. Long, 1 Strobh. Eq. 52; Howard v. North, 5 Tex. 316; Jackson v. Bowen, 7 Cow. 13. And this court has expressly held that an irregular judicial sale made at the suit of a mortgagee, even though no bar to the equity of redemption, passes to the purchaser at such sale all the rights of the mortgagee as such. Brobst v. Brock, 10 Wall. 519. (The litigation of which this case forms a part has been before this court in various forms in the following cases: Ex parte Myra Clark Whitney, 13 Pet. 404; Gaines v. Relf, 15 id. 9; Gaines v. Chew, 2 How. 619; Patterson . Gaines, 6 id. 550; Gaines v. Relf, 12 id. 472; Gaines v. Hennan, 24 id. 553; Gaines v. New Orleans, 6 Wall. 642; Gaines v. De la Croix, 6 id. 719; Gaines v. New Orleans, 15 id. 624; Gaines v. Fuentes, 92 U. S. 10.) Decree of U. S. Circ. Ct., Louisiana, so far as regards appellant Davis, reversed. Davis v. Gaines. Opinion by Woods, J.

[Decided Dec. 12, 1881.]

GEORGIA SUPREME COURT ABSTRACT.

OCTOBER, 1881.

DAMAGES

OF PASSENGER.

FOR BREACH OF CONTRACT BY CARRIER

[ocr errors]

A passenger bought a ticket from one point to another on the line of a railroad and return. She went to the latter point, but when she started to return the conductor informed her, on entering the car, that she could not return on that ticket; that if she did he would have to pay her fare. She thereupon left the train, and remained until the next train, on which she returned home without extra charge. She sued the railroad company. Held, that the suit was founded on a breach of contract, and actual damages only could be recovered; or if none, then nominal damages. Exemplary damages cannot be allowed for a breach of contract. Going v. Western Railroad Co. of Alabama. Opinion by Crawford, J.

MASTER AND SERVANT-NEGLIGENCE-WHAT NECESSARY TO RENDER MASTER LIABLE FOR INJURY TO SERVANT - FELLOW-SERVANT. -(1) To entitle the widow of a servant to recover against a principal for the negligence of a fellow-servant of that principal for the homicide of the husband, which resulted from such negligence, it must appear that the homicide amounted to a crime in said neglectful servant, either murder or manslaughter of some grade. A principal is not liable for the negligence of a fellow-servant in the same job, unless the principal himself was negligent in not using ordinary diligence in selecting the fellow-servant, or in retaining him after knowledge of incompetency or negligence. Nor will the bare fact that the servant afterward became negligent show-without morenegligence in the principal in selecting. One may waive the special contract and sue in tort for breach of duty, if there were such special contract, and the contract might warrant the competency and care of the fellow-servant, and be then invoked to change the legal principle on which the liability of the principal would turn out for the tort; but no special contract is

set out in this declaration so as to vary that general legal principle. (2) A workman engaged in the same job with two or three others, and having the direction of it, is not a general superintendent of a corporation so as to bind it as such, but stands on the footing of a mere fellow-servant. McDonald v. Eagle & Phenix Manufacturing Co. Opinion by Jackson, J.

PARTNERSHIP -DEALINGS NOT CONSTITUTING — ESTOPPEL. — (1) If N. furnished money to P. to conduct business, and the latter was to let him have goods at cost prices, and nothing was said as to interest or profits and losses, this would amount to a loan, and would not constitute N. and P. partners. (2) If P. represented to S. that he was a partner to N. and so told N. of such representations, and the latter acquiesced in them by silence or otherwise, N. would be liable as a partner, and his liability would date from the making such representations or the first credit given thereunder. Slade v. Etheridge. Opinion by Speer, J.

[ocr errors]

TRIAL-TONE AND MANNER OF TRIAL JUDGE IN CHARGE TO JURY NOT EXCEPTIONABLE. (1) An exception to the manner or tone of voice of the judge of the trial court in delivering his charge, is not reviewable by the appellate court, there being no way by which it can be reflected in the appellate court or its influence estimated. (2) It is not always necessary that the court should charge an equal amount on the theory of each side. Frequently one position may require more elucidation than another. Rountree v. Gurr. Opinion by Speer, J.

IOWA SUPREME COURT ABSTRACT.

FRAUDULENT

OCTOBER 22, 1881.

CONVEYANCE

--

GRANTOR CANNOT MAINTAIN ACTION TO SET ASIDE-ONE CLAIMING FOR

TORT CREDITOR. - - Actions were commenced against W. for the unlawful sale of intoxicating liquors, in one of which recovery was had, and indictments were pending against him for keeping a gambling-house and a nuisance, and he was fined upon these. To avoid the claims against him for the unlawful sale of liquors W. conveyed his real estate to defendant. Held, that the conveyance was in fraud of creditors, and that even if defendant had no knowledge of the fraud of W., equity would not set aside the conveyance upon the suit of W. Story's Eq. Jur., § 61; Stephens v. Hanon, 26 Iowa, 458. The rule that a fraudulent purpose on the part of the grantor alone is not sufficient; that there must be a like intent, or at least a knowledge of the fraudulent intent, traced to the grantee, which is the rule where creditors seek to set aside a conveyance as fraudulent, does not apply here. The ground upon which a fraudulent grantor is precluded from gainsaying the transaction, is that he comes into a court of justice with unclean hands, and seeking to take advantage of his own wrong. Some of the claims which the plaintiff sought to defeat by the transaction were the claims of creditors within the meaning of the law. Whatever may be said as to the indictments, it appears to be settled beyond controversy that a person having a claim for a tort is a creditor. See Hillard v. McGee, 4 Bibb, 165; Jackson v. Myers, 18 Johns. 425; Farnsworth v. Bell, 5 Sneed, 531; Laryford v. Fly, 7 Humph. 585; Walradt v. Brown, 1 Gilmore, 397. If the intent was in part to evade fines upon criminal prosecutions, and also to evade the payment of any judgments which might thereafter be obtained in the civil actions, the conveyance was wholly fraudulent. It cannot be upheld in part and be avoided in part. Wier v. Day. Opinion by Rothrock, J.

OFFICER-ONE DE FACTO CANNOT CLAIM EMOLUMENTS OF OFFICE. — An officer de facto (a sheriff) act

ing in good faith under a claim of right to the office, held, not entitled to recover from his county the compensation provided by law for such services, to the exclusion of the officer de jure. The doctrines of the law applicable to officers de facto do not extend so far as to confer upon them all the rights and protection to which an officer de jure is entitled, but they operate only for the protection of the public. They cannot be invoked to give him the emoluments of the office as against the officer de jure. Upon this point it was said in McCue v. County of Wapello, 53 Iowa, 60 (67): “It will be remembered that one exercising the power of an officer without lawful authority is regarded as an officer de facto, not for his own protection or advantage, but for the protection of the public and those who are doing business with him. When his right to the possession of the office is to be determined he cannot be declared an officer de jure, on the ground that he has been an officer de facto." The right to the possession of an office carries with it the right to emoluments pertaining to the place. When an officer seeks to recover these emoluments he must show his right to the possession of the office. The rule is based upon the ground that the officer de jure, who has been ousted from his place by an intruder, has a property interest in the emoluments of the office of which he cannot be deprived by one having no title thereto. This property right demands protection, and the officer de facto cannot recover emoluments to which the officer de jure is entitled. No such right intervenes when the acts of a de facto officer done in discharge of the duties of the office are considered. The rights and protection of the public, and all persons transacting business with the officer, demand that such right be held valid. But when the question involving the emoluments of the office is considered, the rights of the officer de jure forbid that the intruder be regarded as the officer. The case of a de facto officer is not unlike that of one in possession of land without right or title. He may, in many things, lawfully act as the owner of the realty; but he must account to the person holding the title for the rents and profits. Glascock v. Lyons, 20 Ind. 1; Comstock v. Grand Rapids, 40 Mich. 397; Riddle v. Bedford, 7 S. & R. 386; People v. Dorsey, 28 Cal. 21; People v. Oulton, id. 44; Carroll v. Siebenthaler, 37 id. 193; People v Weber, 86 Ill. 283; Mayfield v. Moore, 53 id. 428; People v. Miller, 24 Mich. 458. County of Wapello. Opinion by Beck, J.

McCue v.

VOLUNTARY CONVEYANCE-IN CONTEMPLATION OF MARRIAGE, WHEN NOT FRAUDULENT. - B., a widower, in contemplation of marriage, conveyed to his children land owned by him, and four days afterward married his second wife, who had no knowledge of the conveyance. He had other property, how much was not shown, and he made a will in favor of such wife. Held, that the law would not construe the conveyance to be made in fraud of the wife. It has been frequently held that secret and voluntary conveyances made by a woman in contemplation of marriage are liable to be set aside upon the husband's application as a fraud upon his marital rights. Tucker v. Andrews, 13 Me. 124; Jordon v. Black, Meigs (Tenn.), 142; Logan v. Simmons, 3 Ind. Eq. 487; Williams v. Carle, 2 Stockt. 543, Freeman v. Hartman, 45 Ill. 57; Carleton v. Earl of Dorset, 2 Vern. 17; St. George v. Wake, 1 Myl. & K. 629. A corresponding rule as to fraud would doubtless apply to a husband who before marriage had made a secret transfer of his property which resulted in an injury to the wife. Leech v. Duvall, 8 Bush, 201; Gainor v. Gainor, 26 Iowa, 337; Schouler on Dom. Rel. 271. But it is said that in all such cases the question is as to whether the evidence is sufficient to show fraud. Strathmore v Bowes, 1 Ves. Jr. 28. The secrecy of the conveyance would not necessarily show fraud. Taylor v. Pugh, 1 Hare, 613. And in 2 Kent's

Com. 175, the author says: "If the settlement be upon the children of a former husband the settlement would be valid without notice;" citing King v. Colton, 2 P. Wms. 674; Jones v. Cole, 2 Bailey, Eq. 330. Hamilton v. Smith. Opinion by Adams, C. J.

MAINE SUPREME JUDICIAL COURT AB-
STRACT.
AUGUST, 1881.*

CORPORATION

[ocr errors]

NEGLIGENCE

[ocr errors]

MASTER AND SERVANT-CONTRACTOR NOT SERVANT. -A person who operated a shingle machine to manufacture shingles by the thousand for the owners or lessees of a mill is a contractor, and not an employee or servant for whose acts the owners or lessees are liable under special statute forbidding the throwing of slabs or refuse into a river by a mill owner or lessee or their employees. State of Maine v. Emerson. Opinion by Libbey, J. MUNICIPAL DEPRESSION IN SIDEWALK TO LIGHT BUILDING.-In an action for personal injuries received from an alleged defect in a way, the question whether there was such a defect as unlawfully impaired the reasonable safety of travellers is generally one of pure fact for the jury depending upon the special circumstances of the particular case; but when the facts bearing upon the subject are unquestioned or are sustained by uncontroverted testimony, their legal effect is a matter of law. A sidewalk on a cross street in a city, where there was comparatively little passing, was laid out by the city authorities, seven feet wide, the outside line being within four and one-half inches of a block, and the whole space was bricked as though the sidewalk extended to the block excepting in front of a basement window about nine feet wide, there was a depression in the brick walk eight and one-half inches in width from the window, and six and one-half inches in depth. Held, in an action for damages for personal injuries received from stepping into the depression described, while walking along the sidewalk in the day-time, in the absence of any testimony that such was an improper or unusual construction for the necessary lighting and ventilating of the basement of buildings, that the depression was not a defect in the legal sense. See Todd v. Whitney, 27 Me. 480; King v. Thompson, 87 Penn. St. 369; Cushing v. Boston, 124 Mass. 437. Witham v. City of Portland. Opinion by Virgin, J.

LIABILITY OF FOR MONEY LENT CORPORATE

OFFICERS ESTOPPEL.-One who lends money upon the representations of town officers that it is required for municipal purposes, in order to recover against the town therefor, must prove the appropriation of the money lent to the discharge of legal municipal debts, unless such officers were authorized by a legal vote of the town to effect the loan. Such appropriation of the money to the purposes stated must have been by some person who stood in such relation to the town as to render his act of itself effective as between the town and its creditor, to discharge the debt to which it was applied, or there must have been a ratification or acceptance of such payment on the part of the town. Neither by corporate action nor by corporate inaction can a town knowingly retain the benefit of payments made by its agents in discharge of legal municipal debts, with moneys hired in its name without authority, and at the same time withdraw itself from liability for moneys so hired and used. Cases refered to Bossey v. Unity, 15 Me. 342; Parsons v. Monmouth, 70 id. 264; Billings v. Monmouth, 72 id. 264; Agawam Bank v. South Hadley, 128 Mass. 503. Belfort National Bank v. Inhabitants of Stockton. Opinion by Symonds, J.

To appear in 72 Maine Reports.

« PreviousContinue »