Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 58 online

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tad who is a resident of New Brunswick* but who is temporarily in this


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806 Index.

•tote, can not be oharged by a creditor in thia state as * smi te o, affcsi
the assignment made. Smith v. Eaton, 746.


is Inadmissible to impeach a bankrupt' s certificate duly obtained from
the commissioner and certified by the court of chancery under the statutes
of the country. Id.
See Covenants, 3, 5; Equity, 10; Fraudulent Conveyances, 2; Negotia*


See Corporations, 1, 2, 12.

See Negotiable Instrument*.

vtija OF EX CHAN GE.
8ee Conflict of Laws; Negotiable Instruments.


8ee Execu t io ns, 27, 87; Executors and Administrators, 18; Negotiable

Instruments, 18, 19, 23.


1. Assionor of Bond, either for Monet or Land, undertakes, by implica-
tion, that he hat a right to pass to the assignee what his assignment pur-
ports to pass. If the assignor does not possess such right, he is liable
for a breach of his implied undertaking the moment the assignment is
made. Emmermm v. ClayweU, 645.

% Assignee of Bond, though Receiving It with Knowledge that An*
other Person Claimed It, may recover against his assignor, unless by
the contract he agreed to risk the claim of such third person. Id.

8ee Co nstituti onal Law, 14; Corporations, 2; Deeds, 14, 15; Exsou*
tions, 1, 4-6, 22; Executors and Administrators, 3, 11; Guardian
and Ward; Judgments, 7, 8; Maintenance; Pleading and Practice,
88; 80H0OLS, 1; Suretyship, 6-9, 11; Vendor and Vendee, 1.

Line Described as Bunntng "down River" from Point oh Bank must

be taken to be a line along the river, and the words do not indiosss

merely the general direction. Pihe v. Monroe, 751.
8ee Equity, 8; Evidence, 26, 26; Forcible Entry and Unlawful Db



§m Contracts, 10; Deeds, 8; Evidence, 2; Fraud, 2; Jury and Juror*

2; Malicious Prosecution, 7; Master and Servant, 8b

8ee Criminal Law, 17, 18* 24.

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Index 807

S— OopomATtoms 10, 20; Minn and Bxkwamw.

8m Exi o utio nb, 7; Nsouoinqi, 2-4; Rahboadi, 2.

i BAjrxmtmor and Insolvency, 6; Corporations, 6; Tamtam* &

8m Criminal Law, 29.

8m Equity.

8m Bins and Banking, 1, 2, 6, lOj Riilboads, L

SmAstornsy and Gum

8m Rtidkngb, 27; Wills, ft, 6.

Sm Evidence, 6.

8m Corporations, 1, 5, 21; Pleading ahd Praotmr, *

8m Factors, 3, 4.

Sm Bailments, 1.

S; Executions, 90; M a n da m us, 4; Fuuhm a» Frm>

tioe, 19, 2a

8m Deeds, 19.

8M HUSRAND Ain> Wife, X

8m Pleading and Practice, % S.



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808 Index.

See Suretyship, 12, 1ft.

See Sales, 1.

See Deeds, li» 15; Exe cu tors and Administrators, 3; MoRXQAOsm, It


8ee Marriage and Divorce, 7, &

8ee Criminal Law, 87.

See Eminent Domain, 6-10.


I. State, in its Sovereign Capacity, can Ex e r c is e Fullest Authority
oyer its Own Tribunals, and prohibit citizens of other states from
eniog in them on contracts made, either in or out of the state, onless
restricted by some superior power. Northern Bank ▼. 8qutres, 882.

1 Bill op Exchange Drawn by Citizen of Louisiana, upon and accepted
by citizens of Louisiana, and payable to the order of a citisen of the same
state, will be understood as intended to be made payable in Louisiana,
unless the contrary appears. Id,

&. Where Possession or Property in One State has Commenced et
Fobce or fraud, practiced within the limits and jurisdiction of a sister
state, and contrary to the authority and judicial process of the same,
such p ro p ert y must be returned to the state whence it was taken, and
the parties remitted to that jurisdiction for a determination of their
rights. Mper$ v. Myers, 089.

4. Laws Regulating Acquisition ob Transmission or Title to Person-
altt are those which are in force where the owner is domiciled. SwtUk
v. Eaton, 748.

Bee Bankruptcy and Insolvency, 3-6; Executors and Administrators,
2; Jurisdiction, 3, 4; Pleading and Practice, 16\ 17.

Bee Contracts, A, 0; Corporations, 11; Dedication, 1; Maintenance*

Statute or Limitations, 13.

See Bailments, 2; Factors; Partnership, 4.

See Pleading and Practice, 19, 20.

See Offices and Officers. .

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Index. 809

constitutional law.

L Sraospionva Law is Valid which does not impair or defeat Tested
rights. Bawl* v. Kennedy, 289.

'i. Retrospective Laws ark Co nstituti onal when remedial in their nature,
and which do not infringe npon or divest vested rights. Wynne'* Lessee
v. Wynne, 66.

8. Registry Acts having Retrospective Operation have never been con-
sidered as falling within the constitutional inhibition against ex poet
facto laws and laws impairing the obligation of contract* Tucker v.
Harris, 48&.

4. Law Embraces but One Subject when it authorizes the construction of a
railroad and provides that it shall have power to extend to and unite
with other roads. Belleville A Illinoistown R. R. Co. v* Gregory, 589.

6. Subject or Bill is Expressed in its Title when the subject is to incor-
porate a railroad company, and the title is "An act to incorporate the
Belleville and IUinoistown railroad company;" although the name of the
company does not give a full description of the road authorised to be
constructed. Id.

6. Act Incorporating Railroad Company is Private Law within the

meaning of the Illinois constitution providing that no private law shall be
passed which embraces more than one subject, and that shall be expressed
in its title. Id.,

7. Legislature bt Simply Declaring Private Act to be Public Law can

not Evade Effect of Constitutional Provision declaring that •• no
private or local law which may be passed by the general assembly shall
embrace more than one subject, and that shall be expressed in the title."

8. Legislature may Regulate bt Law Sale of Ant Article the use of

which would be detrimental to the morals of the people. State v. Our*
ney, 782.

9. Act Imposing Double Penalty upon One Who Appeals, in case he is

convicted by a jury in the appellate court, is unconstitutional. But the
appellate court may, after conviction by the jury, impose the single pen*
alty, where such penalty appears to be appropriate, and the law does not
state by what tribunal it may be imposed. Id.

10. Phrase "by the Law of the Land" Means by Process and Proceed-
ings of the common law, by which process and proceedings the accused
has the right to know the charge, in the whole f onn and substance,
against him, to contest it, and if not proved to the satisfaction of a jury,
to demand an acquittal. Inhabitant* qfSaco v. Wentworth, 786.

11. Every Person Prosecuted for Crime has Constitutional Guaranty
of Trial bt Jury, and no law can be enacted which shall take away
this right or interpose such impediments to its exercise as unnecessarily
or unreasonably to impair it. Id.

12. Act Which Makes It Difficult for Accused to Obtain Trial by Jury,

beyond what public necessity requires, impairs individual rights, and is
inconsistent with the provision of the constitution which guarantees their
protection. Id.
II Act Requiring Conditions for Purpose of Preventing Trial by Jury
is at war with the spirit of the constitution, and so far as it deprives one
of this means of protection, it is void. Id\

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810 Index.


Trial, to give a bond in a Urge penal sum, conditioned to be void if he ihall
abstain from all violations of the provisions of the act during the pend-
ency of the appeal taken for the purpose of securing a trial by jury, con-
travenes the provision of the constitution which guarantees to the as*
cosed a speedy trial by jury, and is therefore void; and no action can
be maintained on such a bond. Id.
Bee Corporations, 19-21; Eminent Domain; Evidence, 4; Judgments, 14;
Statuti of Limitations, 2; Statutes, 1, 2.


* See Deeds, 10-14$ Executions, 11, 12; Executors and Administrators, 1%

V Guaranty, 1, 2; Pleading and Practice, 9; Statutes; Usage, 1.

See Mortgages, 6.

See Criminal Law, 25, 26; Judgments, 8.


L Contracts Made in Violation or Statute arr Invalid. Pereone v.
Jones, 476.

2. One having Contracted to Haul Logs into Stream Fuliills bis Con-
tract by landing the logs at any point within the stream, whether they
could be run from that point or not. Palmer v. Fogg, 708.

5. Party Who Relies on Fraud as Ground for Invalidating Contract

must upon the discovery of the fraud take immediate steps to rescind
the contract. If he repeatedly ratifies the acts of which he complains,
he will be forever estopped from setting up such a defense. Southern
Lffe Ine. & T. Co. v. Lanier, 448.
4. Two Parties to Contract can not Bind Other Parties to Contract
by independent agreement in reference to the original contract. Palmer
\. Fogg, 708.

6. Action upon Promise is Maintainable only when consideration is derived

by one party from another party to the suit, negotiable paper excepted.
Machine Hotel Co. v. Coyle, 712.

6. Party for whose Benefit Contract was Made mat Maintain Sun

thereon in his own name, disregarding the agency or name by which he
acted in the formation of the contract, provided the consideration is de-
rived by one party from another party to the suit. Id.

7. Action can not be Maintained to Recover Monet Expended at no re-

quest of the defendant, express or implied, nor for any purpose from
which he could derive any benefit Id.
I. In Order to Recover in Assumpsit for Part Performance of Divisi-
ble Contract, it is not necessary that the contractee should have
wrongfully refused to restore to the contractor what he has received
under the contract. Such recovery may be had upon contracts for per-
sonal services, where it would be impossible to place the parties in state
qmo. Coe v. Smith, 618.

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Index. 811

ft. Rbcotery nr As s ump si t foe Part Performance of Express Contract
mmt in no case exceed the contract price, or the rate of it for the part
of the contract performed. Id.

10. In Assumpsit upon Quantum Meruit fob Services Performed, the
question, "What were the services rendered worth? " is correct, as prima
fade the benefit of the party receiving the services would be measured by
their worth; and the burden is upon him to show the contrary. Id.

11. On One Person's Engaging to Furnish Support for Another with-
out Designation of any place where it is to be furnished, the support
must be provided where the person to be supported elects to receivr it
without occasioning unnecessary expense. Norton v. Webb, 746.

12. Parties have Bight to Adjust Amount Due in Monet on Contract
Payable in Wool, where at the time of payment several installments
of wool have been delivered, but a large amount still remains payables
and on such an adjustment neither party can be relieved without error*
mistake, or fraud in making it; and in the absence of such evidence, it is
error for the court to instruct the jury as to the mode of reckoning to
ascertain the amount without regard to the settlement made by the
parties. Bryant v. Ooa&y, 767.

Sao Agenot; Assignment of Contracts; Bankruptcy and Insolvency;
Bonds; Conflict of Laws; Constitutional Law, 8; Corporations,
7-9, 16; Deeds; Equity, 4, 5; Evidence, 10, 11; Executors and Admin-
istrators, 0; Gaming; Insurance — Firs, 1; Marriage and Divorce, 1;
Master and Servant; Mortgages; Sales; Shipping; Specific Per-
formance; Statute of Frauds; Statute of Limitations; Suescrip*
tion; Suretyship; Usage; Vendor and Vendee.


See Negligence.

See Co-tenancy, 9; Trover.

See C ons t itu t i onal Law, 9; Criminal Law, 16-20, 21

See Statute of Limitations, 3.

L Where Charter of Banking Corporation Required Subscribers ts
m Stock to pay at the time of the subscription, to commissioners ap-
pointed to open books for that purpose, ten per cent on each share sub
scribed, directing that as soon as the stock was taken and the ten pet
cent paid in, trustees should be elected and the company be fully organ*
ised; and an amendatory act, passed after the organisation of the com
pssy, authorised it to allow any stockholder to surrender his certificate
of stock and take a certificate of fall stock equal to the amount of pay-
ment made on his original stock, and empowered the company to reissue
the stock surrendered: Held, that the company was not bound to require


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818 Index.

the purchasers of such surrendered stock to pay the ten per cent on the
■hares purchased by them; that the requirements of the original charter
had exclusive reference to those who subscribed before the company was
organised; that the powers of the commissioners ceased as soon as the
stock was subscribed and the ten per cent was paid in; and that the
company, and not the commissioners, had the power to reissue the sur-
rendered stock. Southern Life Ins. <6 T. Co. v. Lanier, 44&

2. Where Charter of Bank Authorizes It to Reissue Surrendered
Stock and invest the proceeds in bonds and mortgages, it may sell such
stock directly for bonds and mortgages. Id.

8. Where Grant or Power to Corporation u Clearly Defined, and do
mode is prescribed for its exercise, the corporation may adopt such mode
as in its judgment will secure the purpose contemplated. Id.

i. Subscriber is Personally Liable for Assessments on Stock of Cor-
poration, where he-signs a promise to pay therefor in the subscription
book, although the only remedy given by the act of incorporation for a
failure to pay assessments is a forfeiture of stock. Railroad Co. v.
Bailey, 181.

5. Certificate of Board of Commissioners is Conclusive upon the validity
of subscriptions to the stock of a corporation, the amount thereof, and
on the question of legal organization, when the commissioners are ap-
pointed under an act of the legislature to find and certify on these facta.

5. Forfeiture of Charter of Corporation can not be 8et up by Stock*
holder as a defense to an action against him for assessments on his
stock. The forfeiture can be taken advantage of only by the state, and
in direct proceedings against the corporation. Id.

7. Bach Subscription to Stock of Corporation is Independent Contract,

and in no way connected with or dependent upon the terms or agree-
ments concerning other subscriptions. Id.

8. Evidence of Private Parol Agreements with Previous Subscriber!

to Corporate Stock, made at or before signing, and inconsistent with
the written terms of subscription, is inadmissible in an action for aa oc ss
ments against a subscriber. Id.

9. Mutuality of Obligation Exists in Terms of Subscription to Corpo-

rate Stock, although the subscription was subject to the acceptance or
rejection of commissioners until the organisation of the corporation; it
sot appearing that the subscription was rejected by the commissioners
or disaffirmed by the corporation when it became organised. Id,

10l Subscriber can not Object to Alterations in Corporate Charter
Subsequent to his Subscription to the stock, where his assent and re-
quirement thereto is to be inferred, and the alterations were necessary,
and permitted the application of the money to the purpose for which H
was specifically subscribed. Id.

11. Corporation Formed from Association of Individuals for Business
Purposes, without the consent of a subscriber to the association, can
not recover on subscriber's subscription for money laid out and expended
by itself for the use of the defendant, as there is no consideration between
the parties, nor for money expended by the association before the in-
corporation, as the corporation is not identified with those whose money
was expended. Machias Hotel Co. v. Coyle, 712.

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Index. 818

cuting Vexatious 8urr against an individual who has Buffered damage
thereby. Ooodspeed v. East Haddam Bank, 439.

18. Corporations ark, in Modern Times, Brought to Sams Civil Liabil-
rras as natural persons, so far as this can be done practically and con-
sistently with their charters, and are civilly responsible, in their corpo-
rate capacities, for all torts which work injury to others. Id.

14. Directors of Corporation Constitute Controlling Power of Corpo-
ration, and are not to be regarded merely as its agents or servants act-
ing under a delegated authority; and the doctrine that principals are not
responsible for the willful misconduct of their agents can not be applied
to them. Id.

16. Malice of Corporation mat be Proved by proving the motives of
its directors, in the same way that the motives of other associated or con
spiring bodies are proved. Id.

16. Party can not be Allowed to Avoid his Contract with Corpora-
tion, and thereby diminish a fund designed as a security for the benefit
of the public, on the pretense that there was some abuse of the corporate
powers or mismanagement on the part of the board of directors in mak-
ing the contract. Southern Ltfelns. 4 T. Co. v. Lanier, 448.

17. Security Taken by Corporation mat be Enforced against him who
gave it, although the transaction may be culpable on the part of the
directors of the corporation, and a ground of forfeiture in a question
between it and the government which created it. Id.

18. Officers of Insolvent Corporation are Trustees for its creditors.

18. Violations of Ordinance of Municipal Corporation, not embraced
in the elemental definition of crimes as recognised by the penal statutes,
are not criminal cases included in the provision of the state constitution
that the superior courts shall have exclusive jurisdiction in all criminal
cases, except in the cases that are therein specified; and therefore a stat-
ute authorizing a municipal corporation to impose a penalty for such vio-
lation is constitutional. Floyd v. Commissioners, 659.

80. Enforcement of Municipal By-laws, and Infliction of Fink* there-
under without the intervention of a jury, is not in conflict with the pro-
vision of the state constitution securing the trial by jury, "as heretofore
used in this state," because such right was not claimed for or accorded to
offenders in such cases before the adoption of the state constitution.

81. Statute Granting to Commissioners of Town Power to Issue Liquor
Licenses, under such regulations as they might prescribe, provided that
the applicant be required to take the oath required by the general law
of the state, gives full and complete authority to the commissioners to
prescribe any and whatsoever legal and constitutional regulations they
please, subject to which such license should be granted, provided the oath
specified was administered; and therefore they are authorised to pre-
scribe as an additional regulation that the clerk of the applicant shall
take a similar oath. Id.

See (Constitutional Law, 4-7; Master and Servant; Negligence; Rail
roads; Subscription.

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814 Index.


1. Foe Filing Unnecessarily Gross and Indelicate Petition fob Di
vorge, the court taxed the costs upon plaintiff's attorney: Ae&Z, that the
court had a right to exercise such power in its discretion, and that the
appellate court can only interfere in case of an abuse thereof. Brown v.
Brown, Ml.

1. Coubt has Legal Discretion to Allow Amendment of Cost Bill
and the affidavit accompanying it, under the sixty-eighth section of
the practice act, and party can not say that this discretion has been
abused when it resulted in the reduction of the amount of the costs as
to him. Bumham v. Hoys, 389.

U Time within Which to File Cost Bill n not Enlarged, after the
expiration of that time, by granting leave to amend a bill duly filed,
as the amendment relates back to the time of filing the original of
which it is a part. Id.

4, If Original Affidavit to Cost Bill be Nullity, defendant should
treat it as such, and take the proper steps to set it aside; but by moving
to retax, he brings it before the oourt of his own motion, and it is proper
for the oonrt to grant leave to amend said bill, or to make such other
order as in its discretion it deems necessary. Id.

6. Affidavit to Bill of Costs can be made by the attorney of the prevail-
ing party, under the statute. Id.

See Executions, 20.


1. Grantor Becomes Tenant in Common with one to whom he has oonveyed

"one half of my lot." Lick v. (TDonneU, 333.

2. One Tenant in Common can not Maintain Action for Forcible

Entry and unlawful detainer against his co-tenant; but in order to ob-
tain relief, must resort to a court of equity for a partition of the land in
dispute. Id.

3. Possession of One Tenant in Common is the p osse s s ion of all, unless

there be an actual ouster. Young v. Adams, 654.

4. One of Several Tenants in Common Entering upon Land necessarily

acquires possession of the whole, unless he expressly limit his posses-
sion to a part His possession in law is not adverse to his co-tenant,
unless he imparts to it that character by claiming the whole of the land
as his own, or denies his co-tenant right to any part of the same. Id.
6. Husband's Entry upon Land in Right of Wife, in which the latter has
title to an undivided interest with others, will inure to the benefit of the
other part owners, unless their interest is disputed and he claim the
whole as belonging to his wife. Id,

6. Tenant in Common who obtained a conveyance from his co-tenant for the

purpose of mortgaging the entire estate, and bound himself to reoonvey
one half of the land after the mortgage is raised, but who rents out the
premises and oollects the rents, becomes, as to these rents and profits, a
trustee by implication for his co-tenant. TarUton v. QoldthwaUe'* //eirs,

7. Tenant in Common Receiving Rents under an implied trust for his co-

tenant is chargeable with interest on the amount found in his hands
from the time of its receipt. Id.

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Index. 815

l» Tenant in Common mat Maintain Separate Distress ob Action fob
8harb or Rent of the common lands, as a general role; and where rent
is collected by an administrator or guardian in his own wrong, each of
several co-heirs entitled thereto may waive the tort and sue in cueusnpmt
for his share. SmMs Ez'rs r. Wiley, 202.

9. Tenant in Common mat Sue Alone foe Conversion of the common prop-
erty, or if it has been converted into money may waive the tort and sue
in assumpsit for his share. Id.

See Guabdian and Ward; Partition; Shipping, 5, 8; Statute of Limita-
tions, 3.


See Judgments, 2, 8, ft, 10, 11; Jurisdiction; Pleading ant> Praotiorj

Probate Courts.


1. Covenant against Incumbrances is Broken at Time of Conveyance

by existence of outstanding mortgage on the premises. Reed v. Pierce,

2. Damages on Breach of Covenant against Incumbrances by Out*

standing Mortgage in the sum paid, if the mortgage is discharged by
the covenantee; but if the incumbrance is not removed, and there is no
action on the part of the mortgagee to enforce his mortgage, damages are
nominal. Id.

ft. Action for Breach of Covenant against Incumbrances is Barred
by the subsequent discbarge in bankruptcy of the covenantor. Id.

4, Several Covenants in Deed of Warranty are Distinct; their breach
arises at different times, is established by proof of different facts, and
damages therefor maybe enforced by different suits, and recompensed by
different rules of damages; and whatever may be a discharge of one is
not necessarily that of another and distinct covenant. Id.

ft. Discharge in Bankruptcy is No Defense to Action for Breach of
Covenant of warranty when, at the time of the discharge, there was no
breach of the covenant, and whether there would be any such breach
was uncertain. Id.

See Agency, 4l

See Equity, 9-13.


Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 58 → online text (page 90 of 116)