« PreviousContinue »
of so many shares, with an agreement endorsed to exchange them for bonds at his election, and these certificates were then returned to the railroad as such indemnity :
Held, that the corporation was bound to deliver the bonds according to their agreement, notwithstanding the treasurer of the road had entered the shares on their records, as the property of the contractor, and they had, in consequence, been sold on execution as
SCAMMON v. SCAMMON.
Notice of the taking of depositions, fc. Under the general rule, relative to notice to take depositions, an additional day is not required, unless for twenty full additional miles travel.
An admission by a party, made for the purpose of preventing the attendance of witnesses, will, in case the construction is doubt. ful, be construed against such party.
JONES v. BERRY.
Sales by unlicensed pedlars. The statute which subjects to a penalty “every pedlar or other person going from place to place, carrying to sell or exposing for sale any goods, without license," does not render illegal a sale made by such pedlar or other person without license, and assumpsit may be maintained for the price of goods thus sold.
STEARNS v. VEASEY.
Bund given on arrest — Duress. A bond given by a debtor under the provisions of the statute, to obtain release from arrest upon an execution on which he was not liable to be arrested, is void, on the ground that the bond, though given in the form of a common law security as upon a contract between the parties, is, in fact, a mere statute security, not founded upon contract, but required by law to be furnished as a security to the creditor in place of the arrest, and is consequently void in case no legal arrest is made.
Semble, that such bond cannot be adjudged void or voidable, on the ground that it was obtained in such case by duress, unless the fact be found by a jury that it was given under actual duress.
Moses v. BOSTON AND MAINE RAILROAD COMPANY.
Liability of railroads as common carriers of goods. The liability of railroad corporations as common carriers for goods, transported upon their railroads, continues until the goods are ready to be delivered at their place of destination, and the owner or consignee has had a reasonable opportunity during the hours when such goods are there usually delivered, of examining them, so far as to judge from their outward appearance, whether they are in proper condition, and to take them away. Such reasonable opportunity is not, however, to have reference to the peculiar situation and circumstances of the owner or consignee, but is to be such as would give to a person, residing in the vicinity of the depot or place of delivery, and informed of the usual course of proceedings on the part of the servants of the corporation, in unlading the cars and delivering out goods of that character, and also informed of the time when the goods may be expected to arrive, suitable opportunity within the usual business hours for delivering such goods after they have been placed in readiness for delivery, to come to the depot or place of delivery, inspect the goods and take them away.
Ten bags of wool delivered by the plaintiff to the defendants, at Exeter, in this State, to be transported to Boston, and there delivered to a consignee, were carried over the defendants' railroad in a train of cars, which arrived at their freight-house in Boston, between one and three o'clock in the afternoon. In the usual course of business, from two to three hours were required to unload the freight from this train of cars into the warehouse, and the gates were closed at five o'clock, so that no goods could be removed from the warehouse after that hour until the next morning. During the night the warehouse and most of its contents, including the wool, were consumed by fire.
Held, that, upon these facts, the jury were warranted in finding that the consignee had not a reasonable opportunity to take the wool into his possession before the fire; and that the defendants were liable, as common carriers therefor, notwithstanding it might be proved by them, that before the fire, the wool had been placed upon the platform in the warehouse, from which such goods were usually delivered, separate from other goods and ready for delivery.
The common law liability of common carriers cannot be limited by a mere notice, brought home to the knowledge of the owner of the goods.
PIERSON v. Hobbs.
Action on award — Assignment. Assumpsit may be maintained on an award ; and, where the submission is by parol, is the most appropriate remedy.
It is no defence to an action upon an award, made in favor of the plaintiff, after he has made a general assignment of all his property and rights of property, and of action for the benefit of his creditors agreeably to the statute, that the suit is not authorized but discountenanced by the assignee; the legal presumption in such case being, that the award is of matters arising subsequent to the assignment.
June Term, 1856. Strafford.
CHAMBERLAIN v. Davis.
Husband and wife — Services rendered by the latter Competency of
ei idence. In an action by the husband to recover for the services of the wife, the defence set up was that the plaintiff's wife was supported in the defendants family, where she rendered the services, under a contract that nothing was to be paid for the services beyond her support ; and it appeared that the wife made such a contract :
Held, that the fact of the husband's living separate from the wife, without making provision for her support, might be shown as a circumstance, tending with other evidence, to prove his assent to the contract. That a general settlement of accounts between the parties, made before the services sued for were rendered, in which nothing was allowed or demanded for the wife's services performed before the settlement, was competent evidence to prove that the plaintiff knew that his wife worked on such a contract and assented to it. That if the wife, up to the time of the settlement, worked for her support only, and continued afterwards to work in the same way without a new contract, it might be presumed that she worked on the terms of the old contract.
The statements of a wife made in the execution of her agency for her husband, are evidence against him, as in the case of other agents; but her statements made afterwards, respecting the subject of her agency, are not admissible against him.
BANCHOR v. WARREN.
Sale of spirituous liquors - Delivery - Conflict of laws. If a verbal contract is made for the sale of certain specified quantities of spirituous liquors at agreed prices, the property does not pass, and the sale is not complete until the liquors are separated and set apart for the purchaser.
To constitute the offence of selling spirituous liquors without license, there must be a completed sale which passes the property.
If a verbal bargain is made in Maine, for certain quantities of liquors at agreed prices, to be set apart and delivered in Boston, and the liquors are set apart accordingly, and put by the seller on the railway, consigned to the purchaser, and so transported to him in Maine, the sale is completed in Boston, and is no violation of the law of Maine, which prohibited the sale.
PILLSBURY v. Locke. Eridence to explain a written contract Competency of book in connection
with oath of party. Where the defendant contracted in writing to take all the white oak upon the plaintiff's lot, that was suitable for “ ship timber:"
Held, that the declarations of the defendant, made at the time the contract was entered into, that the vessel for which he designed the timber was a small sized one, and that he wanted the small timber upon the lot to put into the top of the vessel, as evidence tending to show what sized timber will answer the description of “ ship timber," was inadmissible.
The quantity of timber taken from a lot was in dispute. A witness who drew it, testified that he took down upon a slate the quantity in each stick, which had been measured, and added up the several quantities, and gave their sum to his wife or daughter, who entered it in his presence upon a memorandum book, and he then examined the entries and saw that they were correct.
Held, that the book might be submitted to the jury in connection with the testimony of the witness, as competent to show the quantity drawn by him.
WISHEART v. LEGRO.
Decisions of inferior courts within their discretion — General release after
suit brought - Brief statement. Matters within the discretion of an inferior court are not subject to revision by the court above, unless transferred to the higher court for their determination.
A general release given after the commencement of a suit need not be pleaded puis darrein continuance, unless a plea has been before filed in the action ; nor need it be pleaded in bar of the further maintenance of the suit, but may be pleaded in bar generally.
Where the defendant pleaded the general issue, and filed there. with a brief statement, setting forth a general release and settlement of the action since the last continuance :
Held, that, under the statute, the defence might be thus set forth, and need not be pleaded specially.
HARTHAN v. FURNALD.
Interrogatories in Chancery. If a party, in his answer in a chancery suit, admit a contract to convey lands on certain terms, he is bound to answer interro. gatories as to the parcels to be conveyed, and the price ; if those facts are material to the relief asked.
Naturalization laws — Jurisdiction of Congress and of the State
Legislatures. Under the constitution of the United States, every State is competent and has the exclusive right to prescribe the remedies and limit the time as well as mode of redress, in its own judicial tribu. nals, and to deny to them jurisdiction over cases, which its own policy or institutions prohibit or discountenance.
Exclusive jurisdiction over the subject of the naturalization of foreigners, is vested in Congress, with full power to constitute all necessary tribunals, and make and establish all laws and regulations, requisite and proper for the exercise of that jurisdiction ; there is, consequently, no implied obligation on the ground of convenience or efficiency, on the part of the States, to furnish tribunals or enact laws to aid in the administration of a system of naturali. zation, which it is the exclusive privilege and appropriate duty of the national government to establish and enforce.
A law of New Hampshire, prohibiting all State tribunals, ex. cept the Court of Common Pleas, from holding or exercising any jurisdiction in the administration of the naturalization laws of Con. gress, is not unconstitutional.
WINKLEY v. Fore.
Deposit of money - Right to recall it – Immaterial evidence when
ground for new trial. A party who deposits money with another to be appropriated for the benefit of a third person, being under no legal obligation so to appropriate it, has a right to countermand the appropriation and recall the money, at any time before it has been actually appropriated, or before such an arrangement has been entered into, between the depositary and the person for whose benefit it was deposited, as creates a privity between them and amounts to an appropriation of it. Anything short of this is immaterial and unimportant, as relates to the depositor's right to recall and recover the money.
The admission of incompetent testimony, although immaterial, may be cause for setting aside a verdict, when the court can see that it was calculated to excite prejudices or raise false impressions, and thus mislead the jury.
Turtle, Administrator, Appellant, v. Robinson, Appellee. Testimony of parties before auditors — Lion of insurance companies for
assessments - Administrator's charges and liabilities. It is the general practice in this State for auditors to receive the