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eoal du8t not resu ting from Improper stowage. — The
Tkowuu V, MelHu, U. 8. O. 0., (N. Y.), Oct. 15, 1888 ; 86 Fed.
Rep. 708.

224. Shippino— Carriage of Goods— Negligence. It

is the ship's duty to take all the precautions that expe-
rience shows to be necessary to avoid in juries to cargo
liable to arise on the voyage. If the best customary
means are not employed, it is at her risk.— fliU(« v. Mack-
m,V, 8. D. 0. (N. T.), Nov. 24, 1888; 86 Fed. Bep. 702.

226. 8fliFPiNa— Carriage of Goods. Fact^ stated to

show that t6e ship was liable for injury to cargo on ac-
count of latent defects in stowage and for inexpe-
rience and mistake of one of its ofllcers.— 7%e Bergtn-
9tren, U. 8.D. 0. (N. Y.), Nov. 20, 1888; 86 Fed« Bep. 700.

226. 8HiPPnio— Delivery— Notice. The provision

of the bill of lading that the ship may discharge fruit
when she is ready, and that the gbods Mhali thereafter
be at the consignee's risk, is a reasonable stipulation
and valid, so far as to permit the discharge of so much
green fruit as can be removed by the consignee during
the day out of danger from frost at night, providing the
consignee is given timely notice of the discharge and

opportunity to take care of his goods.— i^onomro v. The
i?otJbeniia^ay,U. 8. D.O. (N. Y.), Nov. 24, 1888; 86 Fed.
Bep. 687.

227. 8BIPPINO— Charter Party— Agent's Commission.—
Where a ship's charter provided that the steamer was
to be consigned to charterer's agents at ports of load-
ing, paying one commission of two and a half per cent,
to charterer's order at the first loading port, and to be
reported at the custom house by the said agents on
■customary terms: Held, the agents were not entitled to
a commission at a port of discharge.— TTke Serapie, V, 8.
D. C. (N. Y.). July 27, 1888; 86 Fed. Bep. 707.

228. 8Hiprnro— General Average— Baggage. A pas-
senger's baggage, stowed in the baggage compartment

-of a steamship, and damaged by water in an attempt
to extinguish a Are which threatened the safety of the
vessel, is a subject of average contribution.— ^az^ «.
North German Hoyd,U. 8. 0.*C.(N. Y.), Nov. 14, 1888; 86
Fed. Bep. 706.

229. 8HiPPnr(»— Master— Arbitration.— The captain
-of a vessel has no authority by virtue of his position to

appear as attorney for the owners before arbitrators
. chosen to settle the liability for a collision.— Veseel Own-
ert^ Co.v, Taylor, 8. C. HI., Nov. 16, 1888; 18 N. E. Bep. 663.

280. 8PB0IFI0 PXBVORMANOB— Contract. A party

who, upon the consideration of a promissory note and
a mare, has entered into a written contract for the con-
veyance of certain real estate, cannot avoid the specific

..performance of such contract by destrojring the note
and attempting to return the mare.— ^ very v* Morrieon,
:8. C. Kan., Nov. 10,1888; 19 Pac. Bep. 716.

281. 8rB0iFT0 Pbrformakob — Purchase Money.

■Specific performance of a contract for the sale of land
will not be decreed where, at the time of filing the bill
and at the time of trial, the complainants are indebted

/to defendant for the balance of purchase money, which
'ithey had not offered to pay.— ^«ii:e» v. Carr, 8. C. Ga.,
Dec. 8,1888; 8 8. B. Bep. 74.

282. 8TATUTB— Liens. Under Laws Wis. 1886, ch.

469, H 1* 2, supplies actually used in getting out logs, if
sold for that purpose, constitute a lien on the logs,

though they were placed in the store of the purchasers
a8f>art of their stock, to be sold in the usual course of
trade at a profit to their employees and others.— ^^ocy
9. Bryant, 8. C. Wis., Deo. 4, 1888; 40 N. W. Bep. 682.

283. 8TATIITB ov LiMiTATioiTS — Acknowledgment of

Debt. An admission of a debt made by defendants

in their answer to a bill to set aside their assignment is
not such an acknowledgment as will take it out of the

statute of limitations. — H&Ourg v, Jaffraif, 8. C. Miss.,
Not. 6, 1888; 6 8outh. Bep. 94.

234. 8UPBBVI80B8— Election — Cities and Towns.

The city of A was included within the town of A, in the
county of H, which was under township organization*
An election for the selection of a Supervisor was held
in the township, which included the city of A, and at
which the electors of the whole township voted. It was
held that the relator was not elected as a supervisor
from the city of A, another candidate who resided out-
side the city boundaries, within the town, having re-
ceived a greater number of votes at the election so held.
^State ex rel, Oyler v, Supervisore, 8. C. Neb., Nov. 28, 1888;
40 N. W. Bep. 698.

285. 8UBBTIES — Administrator. Defendants are

not llablelfor the failure of the administrators to collect
a debt from a debtor who has been insolvent ever since
the war, though one of his creditors by dividing a debt
owed by the same person individually into small notes,
succeeded in collecting it, as his success resulted from
the willingness of the debtor to pay, rather than his
financial responsibility. — Gray v. Grant, 8. C. N. Car.,
Nov. 19, 1888; 8 8. E. Bep. 106.

286. TAXATION— Assessment. A farm which was

formerly two farms, with buildings on each, is di-
vided by the line between two townships. The owner
resides on and tills the land in one township ; while by
agreement with him, another person resides on and
tills the land in the other township, on shares: Held,
that the entire farm Is taxable to the owner in the
township where he resides. — State o. Washer, 8. C. N. J.
Nov. 22, 1888; 16 Atl. Bep. 49.

287. TAXATION— Tax-deed- Limitation. A tax-deed

that has been recorded in the proper county for more
than five years, and under which the tax-deed claim-
ant has been in the actual possession and occupancy of
the land, where the land sold for taxes was subject to
taxation, and the taxes have not been paid, or the land
redeemed, as provided by law, cannot be overthrown
by evidence not contained within or upon the face of •
the deed. — Bdwarde v. 8im», 8. C. Kan., Nov. 10, 1888; 19
Pac. Bep. 710.

240. Tbmdbb— Tax -deed — Payment into Court. ^It

is error on bills set aside tax deed not to require pay-
ment into court of the money tendered to reimburse de-
fendant for his outlay in costs for tax-sale with inter-
est. — JoAfuon o. HaUng, 8. C. Ul., Nov. 16, 1888; 18 N. B.
Bep. 786.

241. Tbadb-mabk— Assignment. Assignment of a

business with the plant, includes trade- marks used In
the business and gives the assign^ee the exclusive right
thereto. — Merry v, Hoopee, N. Y. Ct. App., Nov. 27, 1888;
18N. E. Bep.714.

242. Trusts- Declaration. A written instrument,

executed In form to be recorded, by which the grantee
of land declares that he holds it **ln trust for the Indi-
ans whose names are hereunto attached, they having
paid towards the purchase of the said lands the sums
set opposite their names, respectively," to which is at-
tached the list of names and amounts paid, is a suffi-
cient declaration of a trust, in Michigan, in favor of the
persons whose names appear in the litt. — ObennUler v.
WyUe, U. 8. O. C. (Mich.), Oct. 2, 1888; 86 Fed. Bep. 641.

243. Unitbd 8TATB8 Attornbt— Statute. The gen-
eral authority to prosecute delinquents given to United
States district attorney by Bev. St. $ 771, authorizes him
to employ a stenographer in criminal cases, and to
render the United States liable to pay a reasonable
compensation for services rendered, without first ob-
taining the authorization of the attorney general of the
United States. — Fith v. United States, U. 8. D. C. (N. Y.),
Oct. 29, 1888; 36 Fed. Bep. 677.

244. Watbb-COURSBS— Beal Property— Quieting Title.

Under Civil Code Cal. % 668, providing that real

property shall consist of that which is Incidental or
apportenant to land, and section 662, providing that a
thing is deemed to be incidental or appurtenant when
It is used with the land for its benefit, a right to use an
iron pipe, through which water is conducted from a res-
ervoir to a mill, and to the water itself, is real property,
and the subject to an action to quiet title. — SUmdart
V. Ronnd, etc, Co,, 8. O. CaL, Dec. 8, 1888; 19 Pac. Bep. 689.



No. 4

wben aet out as a deea in a biJl by an beir to seFit
aside where defendant asserts that it Is a wni,—Traviek-
V, David, S. O. Ala., Dec. 6, 1888 ; 6 South. Rep. 88.

266. WiLL—Mental OM>acity~Eyidence. Facts dis-
cussed and anthoritles reviewed as to mental capacity
to make a will and the evidence admissible to prove or
disprove same. — KeiihUy v. Stafford, 8. C. HI., Nov. 15,.
1888; 18 N.E. Rep. 741.

267. WILLS— Reservation— Mining. Held, that the

reservation of "mining privileges" in a will of devising
land included the use of the entry thereto. — Appeal of
Rankin, 8. 0. Penn., Nov. 16, 1888; 16 Atl. Rep. 83.

258. WILLS— Construction— Property. Where de-
cedent purchased land after making a will giving his
wife a certain interest in all of his property, the after-
acquired property is conveyed by the will, as it is to be
presumed that the testator did not intend to die intes-
tate as to any part of his estate. — Patty r. OooUby, S. O.
Ark., Nov. 7, 1888; 9 8. W. Rep. 846.

289. WILLS— Probate. Where evidence was con-
flicting as to proof of legal execution of will: Held, not
sufficient to overcome the presumption ailsing from
the attestation. — Jiiordan v, (ySagan, 6. 0. Wis., Deo. 4,.
1888;40N. W. Rep.649.

260. Wills— Devises— Charges on Land. Where a

will, after certain bequests, devises the residue of the
estate to specified devisees, "they paying out of thfr
same all my Just debts," the testator's creditors may
proceed directly against the devisees, though under
Pub. St. R. I. ch. 188, §§ 1, 2, the entire estate is liable.—
Woonsocket JnM v. Ballou, S. a R. I., Nov. 10, 1888; 16 Atl.
Rep. 144.

261. WiTKBSs — Competency— Transactions with De-
ceased Persons. ^In an action against a oorporatio]>

for trespass, plaintiff is not rendered Incompetent to-
testify to a parol lease, made by a director of the cor-
poration, by the fact that the director Is dead. — South
BoUCo.v, MuMJback, Md. Ct. App., Nov. 28, 1888 ; 16 Atl.
Rep. U7.

282. WiTRJBSS— Credibility— Impeachment. Where

a witness denies having made a certain statement, it Is-
error not to allow plaintiff to prove by another witness
that he was present and heard defendant's witness
make the statement, as it would tend to impeach de-
fendant's witness. — Bray v. Laltham, 8. C. Qa., Nov. 12,
1888; 8 8. E. Rep. 64.

268. WITMS88— Competency. In an action by the-

executor of the payee of a bond which it is alleged im-
properly came into possession of defendant, the latter
is incompetent to testify whether or not he obtained
possession of It since the testator's death. — SthuUz v.
Boehme, 8. C. Penn., Nov. 5, 1888; 16 AU. Rep. 89.

264. WiTNBSS— Privilege — Communications — Physi -

dans— Attorney. Construction of Code Civil Proc.

N. Y. § 829, rendering incompetent certain persons in.
their own interest as against representations of de-
ceased persons and making privileged communications
of attorney and physicians.- Loder v. Whelpley, N. Y. Ct.
App., Nov. 27, 1888; 18 N. B. Rep. 874.

266. Witness — Competency. Code Iowa, § 8689,.

making a party to an action incompetent to testify
against the personal representative of a deceased per-
son does not disqualify an heir and distributee from
testifying for the defendant In an action by a creditor
of the estate, who Is also heir and distributee, against
the executor.— JTorroti o. Brown, 8. C. Iowa, Dec. 19, 1888 ;
40 N. W. Rep. 708.

266. WiTNBSS— Sxamination. Held, no error to al-

low a witness on behalf on trial of case of liquor nui-
sance to be recalled to testify after State had closed its
case it being disputed as to what his testimony was on
a certain point.— 5tote v. fft^f, 8. C. Iowa, Dec. 19, 1888; 40-
N. W. Rep. 720.

267. Witness— Competency— Eminent Domain. In

an action to recover damage for real estate condemned
for right of way for a railway company, a witness who
testifies that he resides near the land condemned Is,
prima facte, a competent witness to prove the amount of
damages sustained by the land owner.— .yorfAeoffeni, etc.

246. WILLS— Construction— Devisees. Under a de-
vise to "the children of my mother, the grandchildren
of my mother to receive their parent's share should
that parent not be in life," two living grandchildren
take their deceased mother's share to the exclusion of
the Issue of their sister, who died before testator.— TVU-
tt^rt V, Bunu, 8. C. Ga., Nov. 28, 1888; 8 8. E. Rep. 79.

246. Wills— Lagatees — Ademption. —* — A testator
bequeathed to his two daughters |600 each. They sub-
sequently married, and testator gave their husbands
l&OO each, wlthont stating whether it was in lien of the
legacies or not ; but subsequently he stated to third
persons that the money was advanced for that purpose :
Held, not an ademption to the legacies. — Hart v. John-
eon, 8. C. Qa., Dec. 8, 1888; 8 8. B. Rep. 78.

247. Wills— Construction— Alienation. Testator

gave property In trust for his son for life, and directed
the trustees to pay the income to the son semi* annually,
"on his personal receipt therefor, without the said son
having any power to sell, assign, or pledge the same
previous to the payment thereof to him," which receipt
should be the trustees' acqutitance: JTeM, that neither
accrued income in the possession of the trustees, nor
the accruing income, conld be reached by the son's
creditors, or be assigned by h\tn.^ Partridge v, Cavender,
8. C. Mo , Nov. 26, 1888; 8 8. W. Rep. 786.

248. Wills— Construction — Devisee. Will pro

vided that residue of estate should be divided equally
among the children of testator's brothers and sisters.
A son of one of the brothers died before the making of
the will leaving a son surviving: Held, that under Qen.
Stat. Ey. ch. 60, art. 2, $ 1, and ch. 113, $ 18, the son of the
deceased nephew would take the share his father
would have taken. — Chenault v. Cherutult, Ky. Ct. App.,
Nov. 22, 1888; 9 S. W. Rep. 775.

249. Will— Construction. Construction of will

providing that "after the death of my said wife the said
principal fund of |5,000, and the securities and proper-
ties which may constitute the same shall form and be a
part of my estate for distribution and disposal as
herein and after provided." — Stout v. Stout, N. J. Ct.
Chan., Oct. 31, 1888; 16 Atl. Rep. 843.

260. Wills— Construction— Nearest Relations. A

gift to the testator's "nearest relations" means broth-
ers, to the exclusion of nephews and nieces. — Locke v.
Locke, N. J. Ct. Chan., Nov. 22, 1888; 16 AU. Rep. 49.

261. WILLS— Construction. Construction of ambigu-
ous will in which testator bequeathed to his son "the
sum of 14,000, and |2,300 to be deducted out and interest
paid from date, to be deducted out of the |2,800, the
balance to be paid." — Hainee v. Haines Exr*e., N. J. Ct.
Chan., Nov. 18, 1888; 16 Atl. Rep. 889.

262. WILL— Construction— -Space. Construction of

a will where a father gave his daughter property abso-
lutely and by codicle gave her power by will to devise
her share which in case of her death in his life-time
should be paid to her executors: Held, not to lapse. —
In re Piffaid'e Estate, N. Y. Ct. App., Nov. 27, 1888; 18 N. E.
Rep. 718.

253. Wills- Construction — Contingent Remainders.

Where there is a gift to one person, and, in case

of his death, then to another, the gift over Is construed
to take effect only in the event of the death of the first
legatee before the period of payment or distribution.-
Bishop V. McCldkmd's Exr*s., N. J. Ct. Chan., Nov. 23, 1888;
lOAtLRep. 1.

264. Wills— Construction — Conditions. Where

there is a bequest to on person, and "in case of his
death," or "in case of his death without issue," to
another person, such and similar expressions, unex-
plained by the context of the will, are to be confined to
the event of death happening before the period of pay-
ment or distribution, i, e., the death of the testator. —
Bwrdge v. Walling, N. J. Ct. Chan., Nov. 20, 1888; 16 Atl.
Rep. 51.

266. Will — Deed — Equity. a conveyance by a

married woman of her separate estate to her husband
and a son which is a nullity for want of Joinder therein
by the husband and which has not been probated as a
will In the proper, forum cannot be upheld as such

Co. V. Frazier, 8. 0. Neb. Nov. 28, 1888; MJj. W. Rep.

Digitized by V^nOOQ



Vol. 28.



^f(e ^ttttxaX l^tv ^onvimt



OuB readers will, we trust, pardon a few
words of a personal nature, which seem ap-
propriate in view of some recent changes in
the editorial management of this Journal.
In what we shall say, it is not our intention to
reflect unfavorably upon its past manage-
ment, which has been of a high order, the
best eyidence of which is seen in its extended
reputation, its large circulation — the largest,
probatily, of any law Journal in the world —
and the constantly increasing demand for the

But there is an old Irish bull, which ap-
plies as well to law journals as to individu;
als that, *'if you want to be as good a man as
your father, you have got to be a better one."
So, we recognize the' fact that, if we want to
publish as good a journal as that edited, in
successive periods, by Judge Dillon, Judge
Thompson and Mr. Lawson, we must, at
east, endeavor to prepare a better one. All
•of these considerations challenge our greatest
effort. And this, at least, we propose to
^ve. Our aim will be to extend the value
and usefulness of the Journal, by elevating
its editorial standard, by presenting, in the
most attractive and readable shape, the cur-
rent legal thought of the country, and by the
publication only of that, which is peculiarly
the province ci a law journal — fresh legal
news. We propose, as far as possible, to
^ive our readers that which they cannot find
in text-books, of which we might claim to be
the forerunner or advance sheets, and to
place weekly in the hands of the busy prac-
titioner a rich compendium of current law.

An article on the '4ocal prejudice" clause
of the new Bemoval of Causes act, prepared
hy Judge Maxwell of the Supreme Court of
Nebraska, will be found on another page of
this issue. It is readable, not only on ac-
count of the ability of the writer, but also by
reason of the very great interest in the sub-

YoL. 28— No. 6.

ject, induced by the general ignorance, or at
least misapprehension of the profession as to
the meanings scope and proper construction
of that act. Indeed, the universal belief
among federal practitioners is, that the au-
thors and framers of that law know even as
little about it. The practice under the clause
referred to is considerably changed from the
old law, especially in regard to the mode in
which prejudice or local influence need be
alleged and shown, as Judge Maxwell clearly
points out. »

It will be borne in mind, that the act as
passed in March, 1887, was, on its enroll-
ment, found seriously defective in many par-
ticulars of spelling, punctuation, etc., such
as the repeated substitution of ^'controvers-
ary," for the word * 'controversy." The
errors were such and so numerous as to ma-
terially interfere with a proper interpretation
of the act. In response to the outcry on the
part of the profession congress, in August,
1888, passed an act to correct the enrollment
of the former act, but which is substantially
the same act. This act of August, 1888, and
which is the one now in force, we print in full,
following the article of Judge Maxwell, think-
ing that our readers are interested in
knowing its exact phraseology and provisions.

Wb have received from a number of our
readers inquiries as to the scope, effect and
general construction of the late act of con-
gress of September 26, 1888, making it an
offense to prepare and put in the mail a
postal card or envelope upon which anything
of a defamatory or objectionable nature ap-
pears, in other words, the law aimed princi-
pally at improper public ''dunning;" and as
the act is of general interest, and its inter-
pretation unsettled, we are led to offer some
observations in reference to it. The act in
question provides : "That all matter other-
wise mailable by law, upon the envelope or
outside cover or wrapper of which, or any
postal card upon which any delineations,
epithets, terms or language of an indecent,
lewd, lascivous, obscene, libelous, scurrilous,
defamatory or threatening character, or cal-
culated by the terms or manner or style of
display, and obviously intended to reflect in-
juriously upon the character or conduct of
another, may be written or printed, or other-

Digitized by




No. ^

wise impressed or apparent, are hereby de-
clared non-mailable, etc., and any person
knowingly depositing for mailing ♦ ♦ ♦
shall be fined," etc. We are aware of but
on^ ruling under this law, and that by Judge
Blodgett, of the United States District Court
at Chicago. The indictment was against
Sprague — president of a collection agency —
and charged him with mailing a certain let-
ter, upon the envelope of which was printed
in large black letters, '*Sprague's Collection
Agency." The judge held this did not come
under the law.

Of course it will be impossible to say, ex-
cept upon the facts of each case, what would or
would not be considered as within the mean-
ing of the law. But a study of the language
of the statute will enable one readily to de-
termrnc, in a general way, the underlying
principle that ought to govern. There is,
undoubtedly, a proper, gentlemanly and de-
cent way of reminding a debtor of his obli-
gation. This, the law, certainly does not
aim at. Any language or device, printed or
written, which is threatening in character and
liable to bring a man into bad odor or dis-
repute, or intended to reflect injuriously up-
on his character, is contemplated by the

The law, we feel sure, has not in mind to
discountenance the proper collection of debts,
but seeks only to prevent the disseminator of
libels on unfortunate debtors.

The Supreme Court of the United States
will doubtless be called on shortly to deter-
mine the legal status of the interstate com-
merce commission, and define the scope of
its powers. The opportunity will be afforded
in the case of the Kentucky & Indiana
Bridge Company v. L. & N. Ry. Co., re-
cently decided by the United States 'circuit
court at Louisville, reviewing the previous
ruling of the commerce commission. The
bridge company's charter authorized it to
construct railroad tracks over its bridge, to
connect with other railroad lines, and to do a
transportation business with its own locomo-
tives as a connecting link between those lines.
The company itself claims to be a common
carrier, and actually engaged in such trans-
portation business as is authorized by its
charter. A clause in the interstate com-

merce law provides that the term railroad, as
used in that act, ^ 'shall include all bridges
and ferries owned or operated in connection
with apy railroad." The interstate com-
merce commission, through chairman Cooley^
one member dissenting, decided that the
bridge company was a common carrier, and,
as such, was entitled to equal facilities with
those furnished to other common carriers.

Judge Jackson, of the United States court,
holds that the bridge company is not a com-
mon carrier, and he also declares, that the
commission does not constitute a court for
any purpose, but is merely an advisory body,
whose findings are to be regarded merely as
recommendations. As to the first point, and
the one really at issue, the supreme court
will probably find little diflSculty in reversing
Judge Jackson. On the question of the
status of the commission, the profession will
look eagerly for an enunciation from the
court of last resort.


In the case of Metcalf v. City of Water-
town, 9 S. C. Rep. 173, the Supreme Court
of the United States restrict somewhat, as
compared with former rulings, the jurisdiction
of the United States circuit court. It was there
held that an action on a judgment of a court of
the United States, is not necessarily an action
arising under the constitution or laws of the

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 29 of 151)