Augustus John Cuthbert Hare.

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cations, faom July, 1887, to January, 1888. Edi-
tors: E. A. Jacob, J. A.Mailory, F. B. Walrath.
Associate Editors: W. G. Challis, G. T. Lincoln,
M. Cooper, W. Hall, D. Walworth. 1887, Part 11,
New York: Digest Publishing Co., Publishers.


Query No. 22.
A enters land under homestead law, and commutes
same to cash entry, getting land office receipt. The
land is levied on and sold at sheriff's sale to satisfy
judgment. Two years afterward, A claims land to be
exempt to the levy and sale, under the United States
law providing that "no land entered and proved up
under homestead laws shall be liable for debts con-
tracted previous to the issue of patent." Can A claim
exemption under said law at this time, after failure to
give notice to officers at the time either of levy or
sale? Did he not waive his right to do so by commut-
ing to cash entry? Did he not waive his right to
claim such exemption, and did not the land thereby
take upon it the nature of a pre-emption entry. Cite
authorities. B, the execution plaintiff, became pur-
chaser at sheriff's sale, and received deed of the offi-
cer accordingly. The question now arises on a suit to
restore court and recorder office evidence which were
destroyed by Are. B. A. R.

Digitized by


Vol. 28.



Of ALI« Uie Cnrreiit Opinions of AUL Uie State
and Territorial Courts of I«aat Besort* and of tbe
Bopremo, Clrenlt and Blstrlet Courts of tbe
United States, exeept tliose tliat are Publlsbed
In Full or Commented upon In our Notes of
Beeent Decisions.

ALABAMA 1,6,82,43,87,114,131


California 62.78,95

Colorado 18, 127

Dakota 57, 128

Florida 18

Georgia 5,11,26

Illinois v 8,4,42

iNDLiNA 7, 12, 26, 60, 61, 66, 79, 80. 86, 86, 88, 108, 117, 184

KANSAS 9, 24, 27, 28, 29, 30, 31. 41, 46,47,49, 68,71,76, 76.81,
82, 89, 92, 100, 104, 111, 118, 116, 120, 124

Louisiana 21,186

Mainb 99,126

MARYLAND 10,28,118,182

Michigan 78,129

Minnesota 19

NEBRASKA 17,22,48,126

NEW Jersey 88,68

New Mexico 46

NEW York 67,77,84,94,97

NORTH Carolina 88,34,86,36,60,68,69,106

Oregon 112

Pennsylvania 90

South Carolina 8,89,70,74,116

Tennessee 121

Texas . .16, 16, 87, 62, 58, 66, 72, 91, 98, 96, 98, 106, 1C9, 122, 186
United States C. C. 2, 14, 40, 44, 61, 61, 65, 66, 64, 102, 107

United States D. C 20,180


Washington Territory 119

West Virginia 88,108

1. Account Stated. Where an accoont against a

party is stated, showing the amount due, and is ac-
knowlelged to be correct, it Is sufficient to constitute
an account stated, though such party has counter-
claims which are not deducted.— Ware v. Manning, Ala.,
5 South. Bep. 682.

2. ADMiRALTY—CoUision. A tug which, on sight-
ing another tug showing red light, crosses the latter's
bow to the starboard Instead of passing port to port, is
in lault for a collision occurring thereupon.— T^ Amer-
ica, U. S. C. C. (N. Y.) 37 Fed. Rep. 813.

8. Appeal— Freehold. ^e^d, under the facts that

the bill by grantee of a mortgagor to redeem, inyolved
a fr« ehold in which the appellate court has no Jurisdic-
tion.— ^of^ord V. Kane, 111., 20 N. £. Rep. 810.

4. APPEAL— Freehold. Under facts herein the right

to redeem from a mortgage from which complainant may
ultimately be entitled to a freehold, does not present a
question iuToIvinga freehold so as to allow appeal
direct to the supreme oourt.—Kirchoffv. Union Mut, Hfe
Ins. Co., 111., 20 N. £. Rep. 803.

6. APPEAL— Evidence. Though the fact that evi-
dence was objected to be stated, yet, if it be not stated
either in the motion for a new trial or in the bill of ex-
ceptions on what ground or grounds the objection was
predicated in the court below, the supreme court will
not adjadicate upon tbe alleged error. — HeiUy v. State^
Ga., 9 S. B. Rep. 832.

6. Arbitration and Award. It is a good defense

to an action at law on an award that the arbitrators,
after hearing plaintiff's testimony, adjourned, informing
defendant that they would hear his testimony at
another time of which he should have notice, but ren-
dered the award without hearing him. — Graham v.
Woodal, Ala. 6 South. Rep. 687.


Rev. St. Ind. 1881, § 2674, an assignee does not warrant
the title of property sold by him, and, without an ex-
press agreement made by order of the court, does not
assume payment of incumbrances.— Bttrtu v. Gavin, Ind.,
20 N. £. Rep. 799.

8. Assumpsit — Account Stated. Where plaintiff

made a contract with a firm who operated a saw-mill
for the sale of certain timber standing on her land, but
afterwards the firm was dissolved, and their assets as-
signed to the defendants, including the interest in the
said contract, the plaintiff could recover on an indeb-
itatiue astumpeU for timber taken by the defendants. —
Ingram v, Lukene, S. Car., 9 S. £. Rep. 848.

9. Attachment. Where one sells personal prop-
erty, which is afterwards attached by his creditor on
the ground that he had fraudulently disposed of his
property, and he moves to discharge the attachment
for the reason that the affidavit for attachment Is not
true, and the purchaser appears and takes part In the
trial of the motion, and it Is therein adjudged that the
sale was in fraud of his creditors, such appearance and
Judgment do not preclude the purchaser from subse-
quently bringing an action for the recovery of the
property attached.— TAomof v. Baker, Kan., 21 Pac. Rep.

10. Banks and Banking— Check. A trustee drew

a check on a trust fund, and gave it to defendant in
payment of a debt which had no connection with that
fund. Defendant, in good faith presented the check to'
the bank, and obtained the money. The bank, having
been compelled to make good the misappropriation,
brought this action to recover the amount of the check
from defendant: i7(eM, that as between them, the pay-
ment of the check by the bank was a finality, and con-
clusively binding on the bank. — Mawufacturen* Nat,
Bank v. Swift, Md., 17 Atl. Rep. 886.

11. Bond— Bail. In order to render a surety on

a bail-bond, returnable to the city court of Savannah,
liable for its breach, it Is not necessary for the bond to
recite whether the offense charged against the principal
is a misdemeanor or a felony.— Clark v. Gordon, Ga., 9 S.
£. Rep. 883.

12. Carriers — Passenger. In an action for inju-
ries by being ejected from a train with unnecessary
force, the question of contributory negligen<*e does not
enter into the case, as it is no defense against an in-
tentional wrong.— CMcapo, 8t. L. ^ P. R, Co. V. BilU, Ind.,
20 N. £. Rep. 776.

13. Carriers of Goods — Connecting Lines. A

railway company which receives goods, consigned to a
point on its line, in the usual course of business, from a
connecting carrier, which has carried the goods to its
terminus, is entitled to its reasonable freight charges,
though the consignor had directed the goods should be
carried by another carrier than the one to which they
were delivered.— Prtce v. Denver ^ R, Q, Ry. Co., Colo., 21
Pac. Rep. 188.

14. Carriers of Goods— Set off. A common car-
rier who has brought suit against a wrong doer to
recover for the destruction of goods which had been
intrusted to him for transportation, and has recovered
for their amount, is liable to the owner of the goods for
the sum recovered, and cannot recoup against the claim
the expenses incurred in the litigation with the wrong-
^OQT.—Hardmanv. Brett, U. S. C. C. (N. Y.), 87 Fed. Rep.

16. Carriers— Negligence. A charge that where

a railroad train, containing passengers, is thrown from
the track, and the passengers are injured, the presump-
tion is that the accident resulted either from the fact
that the track was out of order, or that the train was
badly managed, or both, and that the burden was on
defendant to show that it was not negligent in any of
these respects, was error. — San Antonio <f A. P. Ry, Co.
V. Robinion, Tex., 11 S. W. Rep. 327.

16. Carriers — Negligence. The statement of a

train conductor, in answer to a passenger's question,
that the train would stop a certain length of time at an

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No. 23

intermealate station, creates no obligation to stop that
length of time, and such qaestlon and answer have no
bearing on the question of damages for an injury to the
passenger.— ificfouH Pac. Ry, Co. v. Foreman, Tex., 11 8.
W. Bep. 836.

17. Cabbiebs— Transfer of Franchise. A railroad

company, organized and incorporated under the laws
of this State, cannot absolve itself from the perform-
ance of duties imposed upon it by law, or relieve itself
from liability for the wrongful acts or omissions of
duty of persons operating its road, by transferring its
corporate powers to them, or permitting them to oper-
ate its road as owners of its capital stock. — ChoUetU r.
Omaha <f R. V. R. Co., Neb., 41 N. W. Bep. 1106.

C.18. Oabbibbsof Passbmqbbs — Ejection. The

statute prohibits the expulsion of a passenger by a
railroad company for non-payment of fare at any point
. other than a usual stopping place, or near some dwell-
ing bouse. When, however, a passenger wantonly
violates any other reasonable rule of a railroad com-
pany, the obligation to transport him ceases, and the
company may expel him from the train at any con-
venient and safe point that may be selected by the
officer in charge. — Souih. Fla. R. Co. v. Rhoades, Fla., 6
South. Bep. 683.

19. Oabribks— Statutes. Subdivision a of § 8, ch.

10, Gen. Laws, 1887, being a part of an act entitled *'An
act to regulate common carriers, and creating the rail-

' road and warehouse commission of the Statd of Minne-
sota, is inconsistent with and so far supersedes § 1, ch.
14, Gen. Laws, 1887, known as the "Freedom of Traffic
Act," as to operate as a repeal of said section.— State v.
8t. PaulM. 4' M. Ry. Co., Minn., 42 N. W. Bep. SI.

20. COMMI88IONBRS — Fccs. United States com-
missioners are entitled to fees for written orders of
commitment and discharge of persons necessarily re-
maining in the custody of the commissioners over
night.— /7eyt0ardv. United States, V. S. D. 0.(8. Oar.), 87
Fed. Rep. 764.

21. OONTRAGTS. A Steam boat builder is liable in

damages for defects of construction which occasion
loss to the owner. — Lea(?i€r$ v. Sweeney, La., 6 South.
Bep. 662.

22. OONTRAOTS— Duress. It Is those contracts only

which are made under fear of unlawful imprisonment,
and not those made under fear of Imprisonment which
would be legally Justifiable, that can be avoided for
duress. — Sanford v. Somborger, Neb., 41 N. W. Rep. 1102.

23. 0ORPORATION8— Directors. Where the direct-
ors of a corporation, having the authority to direct its
litigation, are themselves guilty of the wrong com-
plained of, a court of equity will interfere at the in-
stance of the stockholders, without proof of a demand
and refusal upon the part of the directors to bring the
B\x\t.— Davie v. Oemmel, Md., 17 Atl. Bep. 259.

24. OOSTS — Imprisonment. Magistrate has no

authority to imprison a prosecutor, starting malicious
prosecution, without probable cause, for failure to pay
costs adjudged against him. — In reHeUman,Ka.Ji.,2l
Pac. Bep. 218.

25. OouBTS— Judge. Oonstruction of Oode Ga. §

279 and act 1878 79, p. 71, fixing term of office and pro-
viding salary for county Judges.— u^iuferton v. Ryan, Ga.,
9 S. B. Bep. 881.

26. CRUintAL Law— Manslaughter. An indictment

alleging that defendant, carelessly and negligently ran
his engine Into a passenger- car, thereby causing the
death of a certain person, is sufficient, as charging the
offense, under Bev. St. Ind. 1881, § 1908, providing that
**whoever unlawfully kills any human being without
malice, either voluntarily, upon a sudden heat, or in-
voluntarily, but in the commission of some unlawful act,
is gnilty of manslaughter." — State v. Doney, Ind., 20 N.
K. Bep. 777.

27. CBnuHAL Law— Murder. Where persons com-
bine to oommit a crime, and while so engaged in such
unlawful act murder is committed by one or more of
the conspirators, wlthont the knowledge or consent of

the others, and the act is not the natural or probable
outcome of the common design and purpose, but the
independent act of one or more of the conspirators:
Held, those not participating in it are not guilty of
murder.- 5ta<e V. Fumty, Kan., 21 Pac. Bep. 218.

28. Obiminal Law — Becognlzance. Where a de-
fendant in a criminal action enters into a bond to
appear at the district court, the conditions of the bond
are not compiled with if he merely appears at court,
and departs the same without leave before trial or
Judgment.— Glasgow v. State, Kan., 21 Pac. Bep. 258.

29. Obiminal Law— Assault. A charge of an assault

with deadly weapon with Intent to kill includes the
lesser charge of assault and battery. ^State v. Schreiber,
Kan., 21 Pac. Bep. 263.

80. Obiminal Law— Murder. Witness on trial who

had for years experimented with guns and who was
prepared to state how far distant from the musket
used, a person receiving such wound as deceased did,
should have been held competent as an ejqpett.— State v,
Jones, Kan., 21 Pac. Bep. 265.

81. Obiminal Law— Oonfesslons. Held, that state-
ment claimed to be a confession was not a confession
within the well-deflaed legal meaning of that word,
implying an acknowledgment of guilt.- 5to/<v. Crowder,
Ban., 21 Pac. Rep. 208.

82. Obiminal Law— False Pretences. Defendant

was arrested for attempting to obtain money on false -
pretenses from a railroad company. It was alleged
that he sought to obtain damages for two trunks, which
he falsely claimed had been lost by the company: Held,
that the attorney of the defendant was properly re-
quired to testify as to his employment by defendant to
demand compensation from the company. — White v.
State, Ala., 5 South. Bep. 674.

83. Obiminal Law— False Bepresentatlon. Where

defendant having assigned warrant for witness fees»
collects same, a charge that If defendant fraudulently,
designedly, knowingly, and falsely represented,
whether by words or acts, that he had not assigned
the claim, and that he was the owner when in fact he
was not, and that by reason thereof he obtained the
order, he must be guilty, is correct. — State v. Hargrave,
N. Oar., 9 8. B. Bep. 406.

84. Obiminal Law— Trespass. On indictment for

entering on laud without a license, defendant may show
that he went on the land In good faith claiming to have
or having title thereto ; but such defense will not avail
unless he show reasonable ground for belief that his
claim was well founded. — State v. Crawley, N. Oar., 9 8.
E. Bep. 409.

85. Obiminal Law— Larceny. A due-bill is an *'ob-

llgatlon," within the meaning of Oode N. 0. § 1064, mak-
ing an "order, bill of exchange, bond, promissory note,
or other obligation" the subject of larceny. — State v.
Campbell, N. Oar., 9 8. E. Bep. 410.

36. O9IMINAL Law— Disturbance— Public Worship.

Where, on an indictment for disturbing public worship,
the gist of the offense charged Is the disturbance of a
religious congregation, in refusing to let them enter
the church and engage in religious services, evidence
is admissible that defendant acted under a bona Jtde
belief that he had the title to and the right to the pos-
session of the premises. — State v. Jacobs, N. Oar., 9 8. E.
Bep. 404.

87. Obiminal Law— Swindling. On indictment for

swindling, the charge being that defendant, by falsely
representing the signatures to a petition presented by
him to be genuine, obtained from the county Judge a
draft, an instruction that, unless the signatures were
there at the time of presentation to the Judge, and that
defendant's false and fraudulent declaration that they
were genuine induced the issuance of the draft, defend-
ant should be acquitted, is correct.— Soott v. Simte, Tex.,
11 8. W. Bep. 820.

88. DivoBCB— Alimony. A defendant In a suit f6r

divorce, who omits to allege plaintUTs adiUtery la his
answer, will not afterwards be permitted to set tfe up In

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V^OL. 28.



opposition, to her applloatiOD for alimony pendente lUe,
when the only excuse offered for such omission is a de-
sire to shield his children from the disgrace resulting
from such a charge.— Pullen v. PuUen, N. J., 17 Atl. Rep.

89. DowBR — Seizin. Held, sufficient evidence to

make such a prima flacie case of seizin in demandant's
husband as would entitle her to dower. — Stark v. Hop-
eon, 8. Car., 9 8. B. Rep. 345.

40. Ejeotmsnt— Claimants— Improvements. Under

the Ohio occupying claimants* law, which requires that
the value of all improvements made on the land shall
be paid for in full, such value Is not to be ascertained
by what the improvements originally cost the claimant,
but by the substantial benefit they confer upon the
rightful owner, at the date of the commencement of
the a lion. — Van Bibber v. Williamson, U. 8. C. C. (Ohio),
87 Fed. Rep. 766.

41. Elections. In a proceeding brought by an

elector, to contest an election held for the purpose of
voting the bonds of a county to aid in the construction
of a railroad, the plaintiff must conform strictly with
the provisions of that statute, and cannot bring any
one In as a defendant than the officers named in the
statute.— Chicago, K. (f W. H. Co. v. Evan$, Kan., 21 Pac
Rep. 216.

42. EQUITY— Jurisdiction. Equity has Jurisdiction,

upon the filing of a supplemental bill by attorneys al-
leging that they are assignees of their client of a por-
tion of a fund In the custody of the court, to be dis-
tributed in the cause in which such bill is filed, said
client being entitled to a portion thereof, to enter a
decree preserving the equitable lien of the assignment,
by directing the payment of the assigned amount out
of the tund.— Phillips v. EdsaU, 111., 20 N. E. Rep. 801.

43. Equity— Reformation. Where, In a mortgage

of a homestead duly acknowledged and executed, there
Is a mistake in the description of the land, equity will
reform the mortgage, where the quantity of the land
conveyed is not thereby increased. — Wetheringtonv,
Mason, Ala., 5 South. Rep. 679.

44. Equity— Auxiliary Suit. Where it is held that

an action at law cannot be maintained on an in-
surance policy unless It is reformed, and the action is
continued to enable plaintiff to procure such reforma-
tion, a bill filed for that purpose is auxiliary to the
action at law.— yl6raftam v. North German Fire Ins. Co., U.
8. C. O. (Iowa), 87 Fed. Rep. 781.

45. EQUITY— Jurisdiction. The circuit court of the

United States sitting in Colorada has Jurisdiction of a
bill filed by the United States to set aside, on the ground
of fraud, a patent to land situated in the territory of
Kew Mexico; and, having obtained Jarisdlction of the
defendants. Its decree holding the patent valid is final
and conclusive upon the parties.— United States v. Max-
toell Land Grant Co., N. Hex., 21 Pac. Rep. 153.

46. Execution — Sale. Mere inadequacy of price

is not sufficient to set aside a sheriff's sale, but it may
be considered with other grounds.— Jones v. Carr, Kan.,
21 Pac. Rep. 258.

47. ExBMPiiON. The horse, harness, and buggy of

an insurance agent,— a resident of the State, and the
head of a family,— used and kept by him in carrying on
the insurance business, is exempt under the act relat-
ing to exemptions. — WUhite v. Williams, Kan., 21 Pac.
Rep. 256.

48. Evidence — Books of Account. Books of ac-
count are receivable in evidenco only when they
contain charges by one party against the other, and
then only under the circumstances and verified in the
manner provided by statute.- 0{/5ert v. Merrian Saddlery
Co., Neb., 42 N. W. Rep. 11.

49. Bttdbnce— Opinion. Farmeis who reside in

the vicinity of a farm, and are familiar with it, and
know its capacities, and testify that they know its
value, are competent to g^ve their opinions as to its
value, though they know of no sale of any farm in that
Tiolnlty. — Eansae City f S. W. B, Co. v, BaSrd, Kan., 21
Pac. Rep. 287.

60. Evidence- Parol. A bond and mortgage for a

sum certain cannot be shown by parol to have been
intended to cover whatever should be found due on a
settlement, there being no allegation of fraud or other
equitable m&tter.^MoJltt v. Maness, X. Car., 9 8. E. Rep.

51. Evidence— Documentary. -

- In the absence of

statute authorizing entries in a book termed the '*Reo«
ord of the Register of Swamp Lands," relating to the
disposition of such lands belonging to a county, certi-
fied copies of such entries are not admissible in evidence
as public records.— CarHnpton v. Potter, U. S. C. C. (Mo.),
37 Fed. Rep. 767.

52. Evidence- Negligence. Evidence, that after

an overflow causing damage to plaintiff's land, the de-
fendant, a railroad company, enlarged and recon-
structed its culverts is not admissible. — Gulf, C. <f S. F,
By. Co. V. McGowan, Tex., 11 S. W. Rep. 836.

53. Evidence— Negligence. In an action against a

railroad company for io juries received while in defend-
ant's employ, testimony of plaintiff that a foreman of
defendant, who was assisting in the work at the time
of plaintiff's injury, was afterwards killed on defend-
ant's railroad, is not objectionable as tending to show
another instance of defendant's negligence. — Texas
Mex., By. Co. v DougUus, Tex., 11 S. W. Rep. 833.

64. Factors AND Brokers — Commission. Con-
struction of contract wherein defendant agreed to pay
plaintiff a commission for oiders for goods manufact-
ured, from "responsible parties."— Steinbach v. Montpel'
ier Carriage Co., U. 8. O. C. (Vt.), 87 Fed. Rep. 760.

65. Federal Courts- Suits by Assignees. Though

an assignee cannot institute an action in the federal
courts because of diverse citizenship, under the act of
1876, unless his assignor could have done so, yet, the
action having been brought In tne State court the cause
Is removable.— Bosenbaumv. Council Bluffs Ins. Co., U. 8.
C. C. (Iowa), 87 Fed. Rep. 7-24.

56. Federal Courts. An action for domages for

breach of a contract of lease is an action *'founded on
contract," in the sense in which that expression is
used in the restriction contained in the first section of
the act of March 8, 1875. — Bepublic Iron Min. Co. v. Jones,
U. 8. C. C. (Ga.), 87 Fed. Rep. 721.

67. FORCIBLE Entry AND Detainer. Under Jus-
tice's Code Dak. §§ 34, 87, in order to maintain forcible
entry and detainer, the plaintiff must have a general or
special title to the premises sufficient to give him the
right of possession, and the defendant must be a mere
trespasser or intruder without color of right. —Murry v.
Burrts, Dak., 42 N. W. Rep. 25.

68. Fraudulent Conveyance — Mortgage. A

mortgage deed executed to secure a valid pre-existing
debt, and with no fraudulent intent on the part of the
mortgagee, is valid, though the mortgagor executed it
for the purpose of defrauding creditors.— BaMto v. Mayo,
N. Car., 9 S. E. Rep. 384.

59. Fraudulent Conveyances — Possession. A

provision in a deed conveying real estate aBd person-
alty to a trustee for the benefit of creditors, reserving
possession of the property until the maturity of certain
secured debts, eleven months later, the grantor taking
the profits to his own use during that time is not, of
itself, proof of fraud.— PouZ v. Baugh, Va., 9 8. E. Rep. 829.

60. Highways — Assessments. Where a second

assessment against land- owners is ordered for the pur-
pose of paying the costs of a free gravel road, the land-
owners have a right by appeal from the final order to
bring before the court all questions affecting the
amount of the assessment. — Board of Commissioners v.
FuUen, Ind., 20 N. E. Rep. 771.

61. Highways- Assessment. Rev. St. Ind. 1881, §

6096, providing for the apportionment of the estimated
expense of constructing a free gravel road, does not
authorize the auditor to increase the assessment to an
amount exceeding the benefits assessed. — Campbell v^^
Board, Ind., 20 N. E. Rep. 772.

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No. 23

62. HOMB8TBAD8. Under Code Civil Proc. Cal. §

1466, premises suitable and proper for a homestead may
be so designated, though they were not, at the hus-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 136 of 151)