Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 116 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 116 of 151)
Font size
QR-code for this ebook

married women so declared to dispose of their property
without any interference on the part of their husbands,
and she afterwards executes a mortgage for the pur-
pose of stripping herself of her property in fraud of her
husband's rights, the mortgage is valid as between the
parties, and a court of equity will not give her any
relief from the consequences of it. — Appeal of Hedden,
Penn., 17 Atl. Rep. 29.

86. Master and Sbryant — Fellow servants. -= A

brakeman on a freight train is a fellow -servant within
the rule of the master's liability for negligence, with
one having general charge of the company's freight
business in the locality of the accident at issue, with
authority to employ and discharge hands in connec-
tion with such business.— (7a/refton, H. ^ S. A. Ry. Co. v.
Farmer, Tex., 11 8. W. Rep. 166.

87. Master and Servant — Contributory Negligence.

In an action for personal injuries caused by the

alleged negligence of defendant, where plaintiff's own
case necessarily puts in issue all the facts relied on by
defendant to show his contributory negligence, the
burden of proof Is on plaintiff to acquit himself of fault,
and in such case no plea of contributory negligence is
necessary on the part of defendant. — Murray r. Oulf,
etc. Ry. Co., Tex., 11 8. W. Rep. 125.

88. Master and Servant- Negligence. The duty

of the master to see to it that the machinery furnished
for the use of his servants is reasonably safe does not
extend so far as to require him to attend to the proper
regulation of those parts which necessarily have to be
adjusted in the course of the use, and with regard to
the particular work to be done, and the adjustment of
which is incident to the ordinary use of the machine. —
Eicheler v. St. Paul Furniture Co,, Minn., 41 N. W. Rep.

89. Master and Servant— Negligence. Question

of negligence on part of defendant where plaintiff was
injured by an ox which came on defendant's track
through insufllcient fences. — Magee v. North Pac, Coast
R. Co., Cal., 20 Pac. Rep. 709.

Digitized by

Google /

Vol. 28.



90. Mmasvbm or DAMAGB8— Crops. The measure

of dsmages f6r Injuries to crops oansed by an OTerflow»
Is the Tshie of the erops at the time and place of their
destruction, as they stood npon the gronnd. — SaMm <f
B, T. Ry, Co, V. 8mSih, Tex., 11 8. W. Bep. 188.

91. MumoiPAL OORHORATIOKS— Streets— Damages. —
A monldpal corporation Is not liable for depredation
In the yalne of private property caused by permitting a
railroad company to place Its tracks below grade across
the street on which the property Is situated, thus de-
flecting trayel from that street to another, but not
obstructing access to the property, though rendering
It less conyenlent.— ^olrcJWM v. OUy of 8t, LouU, Mo., 11
8. W. Bep. eo.

92. mnnoiPALOoRPORATioirs—Defectlye Streets.

Our statute Imposes an absolute liability upon cities,
ylllages and towns for Injuries sustained by reason of
the failure of municipal authorities to keep In repair
the streets, sidewalks, etc., within the corporate limits,
proylded its authorities haye opened or controlled
such street or sidewalk where thejnjnry was sustained
as a public street or sidewalk.— Biggt v. CUy o/RunHng-
Um, W. Va., 9 8. B. Bep. SI.


Question of liability of city for defective street to
policeman Injured on sidewalk, the question being also
as to the knowledge of defect by the policeman. — CUp
of G4d9eiion v. Hem i i e $ , Tex., 11 8. W. Bep. S9.

94. NBOLIOBNOB. Question of negligence under

the facts where plaintiff was injured passing through a
private gangway, by a ladder falling on her which was
In the hands of defendant*s servant. — Clarke v. Shode
Iritmtd EUcMc Co., B. L, 17 Ati. Bep. 69.

95. Nbqotiablb iHSTSUMBiiTS— Indorsement. In

Vermont, a third person who Indorses his name in
blank upon a note, under that of the payee, prima facie
assumes the obligation of a maker. — HatUmal Bank v.
Doreei MarUe Co,, Vt., 17 Ati. Bep. 43.

98. NSOOTIABLB INSTBUM BHTS — Collateral Security.
Where a note Is indorsed and delivered as collat-
eral security, the Indorser and Indorsee are to be re-
garded as sustaining towards each other the relation of
pledgor and pledgee; and. It such collateral paper
matures before the principal debt, the duty and obli-
gation of the pledgee in the collection thereof Is per-
formed by the exercise of reasonable and ordinary care
and diligence.— IfouiU Vernon Bridge Co, v, Knox Counip
809. Bank, Ohio, ao N. B. Bep. 839.

97. Nbootiablb Ihstbum B2IT8— Evidence. In an

action on a promissory note, the defense was that It
was given by defendants to plaintiff for the sole pur-
pose of procuring the release of one W, who was In
jail upon a criminal charge at the complaint of plaint-
iff. One of the questions asked defendants was : *' What
was your understanding when you signed the note?'
Held, that this was properly excluded. — Foe^ck v. Van-
mrwdaU, Mich., 41 N. W. Bep. 981.

98. Nbw Tkull— Surprise. A motion for a new

trial on the gronnd that the applicant was surprised
by the Introduction of certain testimony at the trial,
and that such testimony could have been successfully
met by a witness who was absent. Is properly refused
where it appears that the applicant did not make
known his surprise when such testimony was offered,
and that no continuance was asked for. — Rofnero v.
De»maraH$, K. Hex., 20 Pac Bep. 787.

99. NuiSAHOB— Damages. An individual cannot

enjoin a public nuisance, such as the obstruction of a
road, unless It works special and peculiar injury to
him, and that injury must not be trivial, or such as
may be compensated in damages, but must be serious,
affecting the substance and value of the plaintiff's
estate.— TalfroM «. King, W. Va., 9 8. B. Bep. 48.

100. OvnOB AMD OmOBH. The constitution pro-
vides that '*when a vacancy happens during the recess
of the legislature In any office which Is to be filled by
the governor and senate, or by the legislature in joint
meeting, the governor shall All such vacany, and the

commission shall expire at the end of the next session
of the legislature, unless a successor shall be sooner
appointed:" Held^ that the governor may In the recess
make an appointment to All the office temporarily,
where the vacancy flrst began during the session of
the legislature.- ^tate v. Knhl, N. J., 17 Ati. Bep. 108.


of sale In partition will not be refused because the time
has not yet expired within which the estate of the tes-
tator, under whose will complainants derive titie, may
be subjected to the payment of debts, when It does
not appear that there are any debts, but does appear
that the administrator has a large amount of personal
property in his hands. — Hendrp v. HoiUngdrake, B. L, 17
Ati. Bep. eo.

108. PxHSioii— Fees for Obtaining. ^The statutes of

the United States prescribing the compensation of
pension attorneys, and making It unlawful to demand
or receive a greater sum than that prescribed, are not
limited to persons who are recognised or known to the
commissioner of pensions as attorneys or agents of ap-
plicants.— Oir«r/y «. Bobbing, Mass., 90 N. S. Bep. 460.

108. Pbikoipalahd Subbtt— Contribution. Where

the complainant, in a bill for contribution between
sureties, has paid only a part of the joint Indebtedness,
and one or more of the defendants have also made
payments thereon, the amounts paid by all the parties
must be added together, and the sum divided by the
number of solvent sureties, which will give the basis
for contribution.— <7ro« v, Davie, Tenn., 11 S. W. Bep. 92.

104. Bailroad Compaht— Municipal Aid. The new

constitution abrogated the act of February 8, 1870, so
far as It authorized the issuing of bonds in aid of a cer-
tain railroad npon an election held after the new
constitution went Into effect; and no new act having
been passed to confer the required authority upon the
city of B, there was no authority to hold the election of
June U, 1870, or to Issue the bonds, and that the holders
thereof could not enforce them.— ^(orfon v. Tax Diet., U.
S. S.C.,9S. 0. Bep. 822.

106. Bailroad COMPABiBS— Municipal Aid. The

bonds issued by the dty of B, upon an election held
after the amended constitution Tenn. 1870 went Into
effect, were void where the owner of such bonds has
obtained judgments on them, he is not entitied to man'
damue to compel the dty to levy a tax to pay such
judgments, under the provision of the act of February
8, 1870, authorizing the dty to tax to pay the interest on
and create a sinking fund for the redemption of the
bonds. The judgments do not estop the city to assert
the abrogation of that tieU— Taxing Dieiriet v. Loague, U.

108. Bailboad COMPAHIB8— Fires. Where fire has

been kindled by a locomotive without negligence of the
railroad company, whether on land of the company or
not, the company Is bound to exercise such care to
prevent the spread of the fire and resulting damage as
a prudent man would deem proper under the drcum-
stances.— ifiMOwH Pao. Mtg. Co. v. PUUzer, Tex., 11 8. W.
Bep. 180.

107. Bailboad Compaht— Injunction. To entitie

an abutting owner to enjoin the operation of a railroad
In a street, which has been constructed by legislative
sanction and with the consent of the dty, It must
dearly appear that he has been deprived of his right to
the reasonable use of the street, and not merely that
he has suffered an annoyance or inconvenience, though
such as to entitle him to legal redress.- ^yZond v. Bhort-
Bauie Bp. Transfer Co,, Ky., 11 S. W. Bep. 79.

108. Bailboad Compahibs — Crossings. The fact

that a railroad crosses a highway on a trestie does not
exempt the railroad company from the duty of giving
warning of the approach of its trains to such crossing.
-^Bupard v. Ckeepeake <f 0. B. Co,, Ky., 11 8. W. Bep. 70.

109. Bailboad Compahibs— Fences. The provis-
ions of section 18, art. 8, ch. 2, Comp. St., defining a
*<lawful fence," apply alone to the Indosing of lands,
and do not apply to the fencing of a railway. That

Digitized by




No. 19

matter It goyeroed by $ 1, art. 1, eta. 73, Oomp. 8t.— Chi-
caffOt B. <f Q, B. Co, v. Jtmet, 41 M. W. Bep. 992.

UO. Rbgord — Mortgages. Ttaongta the general

index required by Bev. St. Wis. $ 769, to be kept in the
offlo^ of the register of deeds, and in which a mortgage
has been entered, does not contain a description of the
mortgaged land, as required by the statute, yet, where
the mortgage has been transcribed in the proper rec-
ord book of the office, the defect is cured. — Lane v,
DuehaCj Wis., 41 X. W. Rep. 962.

111. REFBBBVCB— Contract. A contractor worked

on a building under a contract which fixed the sum to
be paid, and provided that any additions to or deduc-
tions from the work as shown by the plans and speci-
fications should be made according to certain rates:
Held, in an action to enforce a mechanic's lien arising
under such contract, where the account contained over
ninety items for extra work, and defendant denied that
there was anything due plaintiff, that a reference was
proper, under Bey. St. Mo. $ 9606,^IUner v. St. Lovis Ex-
poiUion f MkHe HaU As^n,, Mo., U S. W. Bep. 68.

112. Bbfbsbngb— Findings. In an action at law

on an account, the trial court has power to set aside
altogether the finding of a referee, but not to amend it.
-Clark V. PkUUpM, Mo., 11 S. W. Bep. 5S.

lis. BBFBRBHCB— Insurance. Under Bey. St. Wis.

§ 2864, providing for the compulsory reference of cases
where the trial of the issue requires the examination of
a long account on either side, an action upon a policy
of insurance cannot be referred, though an inquiry as
to the list of articles destroyed by the fire may be nec-
essary to determine the amount of loss. — Andrug v.
Rome Int. Co,, Wis.. 41 N. W. Bep. 966.

114. Bbsultino TBU8T8 — Husbsud and Wife.

QucBre, whether a resulting trust arises in favor of a
wife. If the husband acquires property with her sepa-
rate estate, and without her knowledge and consent
takes title in his name. If so the proof must be clear
and explicit to establish it, especially against husband's
creditors.— 5m{M v. Turleg, W. Va., 9 S. B. Bep. 46.

116. BBvnrAL OT JOBOMBNT— Limitation. Under

$§ 11, 12, ch. 189, of the Code a Judgment can be revived
by teire faeitu against the personal representative of
the debtor within ten years from the return -day of the
last execution, though that time may be moie than ten
years from the date of the Judgment.— SAerrord'f Admr,
V. KeUer'8 Admr., W. Va., 9 S. B. Bep. 85.

116. Salb — Change of Possession. Though the

sale of a cow is not accompanied by sufllclent change
of possession to be valid as against creditors, yet her
subsequent progeny raised on the farm on which both
vendor and vendee reside, never having been the prop-
erty of the vendor, belong to the vendee as against the
vendor's creditors.*- ITofoott «. HamiUon, Vt., 17 Atl. Bep.

117. Spboiwc Pbbfokmakcb— Jurisdiction. In the

case of a person, bound by a contract in writing to con-
vey real estate, dying before making a conveyance, the
proper probate court, on the application of any person
Interested in causing It to be made, may, under chapter
66, Gen. St. 1878, direct the administrator or executor to
make it.— /n re Moueeeau^e Bttale, Bflnn., 41 N. W. Bep.

118. Taxatioh— Broker. A cotton broker who

merely occupies desk- room in a city, where he keeps
nis account books, etc., carries on his correspondence,
and receives samples of cotton, but makes no sales,
and keeps no goods except the samples, which he does
not offer for sale there, does not occupy a store or shop
within the meaning of B< v. St. Me. ch. 6, % li,— Martin «.
Ctty of Portland, Me., 17 AtL Bep. 72.

119. Tax- Dbbd— Evidence. Under the provisions

of the Code of 1866 of this State, a tax* deed for land, ex-
ecuted in 1870, by a deputy- recorder, and duly acknowl-
edged by him in bis own name as such deputy, is ad-
missible in evidence In an action of ejectment for said
laxid.^Z>avi0 w. Litimg, W. Va., 9 S. B. Bep. 84.

120. TAX-BBBi^Tltle;^ -A void tax deed may con-

stitute color of «ltle,-under the general statute of limit*
ations.— BairtUtt v. Mauder, Mo., 11 S. W. Bep. 67.

121. TAX-TITLB8. A certificate issued to the State

for lands bid in at a tax'Sale, made out and executed
by the county auditor months after the expiration of
of the time reasonably needed for such purpose, al-
though within the period of redemption provided In
chapter l. Gen. Laws 1874, Is of no effect. — Kipp v. BtU,
Minn., 41 N. W. Bep. 970.

182. TBMAHGT IH CoMMOiT. When a tenant In com-
mon, In possession of the entire tract, asserts exclusive
title to the whole against his co-tenant, the statute of
limitations begins to run.— Ifoyef v. Manning, Tex., 11 S«
W. Bep. 186.

188. TBU8T8 — Bevooatlon. A deed of trust exe-
cuted by a husband and wife of land of the husband
reserved a life -estate In the grantors as eettuie ^we
frtwfMU, **and, at and Immediately after the death of
the survivors of them, the said property to vest In their
children or their legal representatives in fee-8impl<», as-
tenants in common:" Heid, that the children's Interest
did not vest with the Execution and delivery of the
dee€i.— Appeal of CHngrich, Penn., 17 Atl. Bep. 88.

124. Trusts — Equity. Held, under the droum-

stances of this case that the loss of the trust fund re-
sulted from defendant's gross negligence In deposlting-
it with a bank known to be Insolvent and from his dis-
obedience to the decree of the oourt and he was re-
sponsible for the whole thereof. — Whitehead v. WhUe-
head, Va., 9 S. B. Bep. 10.

126. Vbndor'8 Libn— Parties. In a suit to enforce

a vendor's Hen on land. It Is not error to decree a sale
of such land to pay said Hen, without making other
creditors, having subsequent liens thereon, parties,
and ascertaining the amounts and priorities of their
debts.— .Arnold V. Corbum, W. Va., 9 S. B. Bep. 8L

186. Ybrdob's Lnir — Homestead. Though the

execution of a note by the vendee for the purchase
money, payable to a third person, operates, as to the
vendor, as a payment, and therefore extinguishes hla
Hen, yet In an action on the note the vendee Is not
entitled to claim a homestead, since as to him the note
Is a part of the purchase price.— Graer v. Oldham, Ky., 11
S. W. Bep. 73.

187. WARBHOU8BMBH —Pledge. Under the grain

warehouse law of 1876 no distinction can be made be-
tween the person who makes an actual deUvery of his
grain at a public warehouse and a pledgee of the grain
of the warehouseman, (aotuaUyupon deposit In the
warehouse,) who leaves It In store with the proprietor
as his baUee, taking a warehouse receipt therefor. —
Eggere v. Ha%ee, Minn., 41 N. W. Bep. 971.

128. WABBAHTT— Damages. Bepresentatlons that

a horse is "sound straight and all right" and Just such
a horse as the purchaser wants, constitute a warranty.
-^Murphy V. McGraw, Mich., 41 N. W. Bep. 917.

189. WATBR8AND Watbb-ooubsbs— Adversc Uso.

In an action to determine the right to certain water
which defendant claimed the right to use on alternate
days, there were findings that defendant'^ predecessor
in title leased from plaintiff's predecessor the right to
so use the water; that more than five years before suit
brought, defendant paid plaintiff's predecessor a oer-
tain sum. In consideration of which the latter waived
aU claim to ene-half of the water; that defendant has
since claimed the right to use, and has used, the water
<*as his own property ;" and that his possession, claim,
and use have been quiet, peaceable, open, and notori-
ous: Held, that they did not show that defendant's use
was adverse, and were Insufllcient to support a Judg-
ment in his favor on the ground of a prescriptive right
— Oiwfo V. Bettano, Cal., 80 Pac. Bep. 748.

180. Wills — Bevooatlon. The testamentary In-
capacity of a married woman having .been removed by
statute, the wiU of tkfsme eole Is not now revoked by
marriage.— /» re HuiU'e WfU, Me., 17 Atl. Bep. 68.

Digitized by


Vol. 28.



^^ dpentml ^tv "^auvtmX.

8T. L0UI8, MAT 17, 1889.


MissouBi and Minnesota have now
joined the procession of ballot-reform
States. Their legislatures have passed
bills, framed upon the model of the
Australian election system, with some few
modifications. In Missouri, the law is made
to apply only to cities of over five
thousand population; in Minnesota to
cities of over ten thousand. There
are strong reasons for believing that
Wisconsin and Connecticut will be added to
the list before the close of their present legis-
lative sessions. In Wisconsin, the senate has
passed a bill extending the provisions of the
present admirable Milwaukee law and making
them applicable to the entire State. And thus
the good work goes on.

It is a common saying, and one undoubt-
edly true, that there are ^Hricks in aU trades,"
and even so virtuous and innocent an occupa-
tion as legislating for the people cannot ex-
pect to escape its application entirely. And
that there are at least occasional tricks in
that profession, a recent act of the Missouri
legislature clearly discloses, if there is any
virtue in language. It seems that a spasm of
business morality struck at least the rural
members of that body, who determined to
put an end to what is known in polite language
as option trading or trading in futures, and
in vulgar parlance as grain gambling. As is
well known to the profession, the courts of
most of the States, in passing on contracts
for future delivery of grain, have held them
valid or otherwise, according to whether it
was the intention, at the time of making the
contract, to actually deliver the goods, or
whether it was to be simply an adjustment or
settlement of differences on the basis of the
market value of the goods at the time of the
pretended delivery. The above legislature
framed a bill stringent and apparently invul-

VoL. 28— No. 20.

nerable, constituting it an offense to buy
and sell commodities for future delivery, and
making it prima facie evidence of the guilt of
the party accused to adjust or settle differ-
ences otherwise than by actual delivery of the
article bought or sold. Whatever doubt there
might be about the advisability, efficacy and
constitutionality of such a law there certainly
could be none as to its intendment, and its
passage, no doubt, would have created some
confusion in the ranks of those at whom it
was aimed. But at this point the urban legis-
lator, so to speak, made his appearance, and
by representing that the bill, in its then shape,
was unconstitutional, obtained the substitu-
tion of the simple phrase ''intend to"
throughout the statute, in effect mak-
ing it an offense to buy and sell grain for
future delivery where the buyer and seller do
not intend to make actual delivery, thus, in
reality, destroying the real aim and object of
the statute, and simply putting the law in
statutory form, as it has heretofore been de-
clared to be by the courts, a matter of inten-
tion, and thus, we might add, of evasion ; with
this difference, however, that that has now
been declared to be a crime which heretofore
has had the effect only of preventing an en-
forcement of a contract. As a matter of fact,
however, we do not see that the legislature
had it in its power to pass such a law as at
first was contemplated, as it seems clearly
unconstitutional to make an offense out of the
mere selling of goods for future delivery
without reference to the intent of the parties.

NoR do we at all agree to the proposition
that the statute, even as originally framed,
would have been effective in accomplishing
the object sought. A leading daily news-
paper, in commenting upon it, calls attention
to a similar law passed by congress twenty-
five years ago, in effect an act to prevent sales
of gold for future delivery and prohibiting
sales by bankers or brokers for present de-
livery at any other place than their regular
business houses. Congress supposed that
this law would stop speculation in gold and
at once force down the price of that metal.
The law seeking to prohibit gold speculation
went into effect June 21, 1864. Sales at once
stopped on the gold board in New York. To
this extent and no further was the law en-

Digitized by




No. 20

forced. Men bought gold as they did before,
bQt at other places. Gold instead of falling
in price steadily advanced until the Washing-
ton legislators saw they had blundered and
repealed the law. No doubt the statute which
the Missouri legislature intended to enact
would be as powerless to accomplish its end
as the one passed by congress. It could not
be enforced in the spirit and to the extent
which its creators desire, and if it could be,
public sentiment would at once demand its
repeal. In aU business enterprises, on a
large scale, the speculative element enters,
and from the necessities of the case must
enter. The enforcement of a law as harsh
and inflexible as that which the Jefferson City
solons intended the anti-option act to be
would create ten evils for the one which the
act was designed to remove.


The question as to the implied lien of
bankers on securities in their possession came
before the Supreme Court of the United
States in Reynes v. Dumont, 9 S. C. Rep.
486. It is substantially held that any cir-
cumstance which shows that securities were
held for some other purpose rather than the
balance of account will defeat the claim of
lien, and that in the case at bar there was no
lien, as it appeared that the bonds upon
which lien was claimed were not lodged in the
hands of the bankers in the ordinary course
of business between them and the owner.
Chief Justice Fuller says :

Undoubtedly while "a general lien for a balance of
accounts is founded on cuBtom, and Is not favored, and
it requires strong evidence of a settled and uniform
usage, or of a particular mode of dealing between the
parties, to establish it," and ''general liens are looked
at with Jealousy, because they encroach upon the com-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 116 of 151)