Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 49 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 49 of 151)
Font size
QR-code for this ebook

on G*B.'-McKenna v. Noy, 8. 0. Iowa, Dec. 21, 1888; 41 N.
W. Rep. 29.

242. Sale- Conditional — Failure to Record Contract.
Relatively to subsequent creditors of the pur-
chaser, a condivional sale of chattels, not duly recorded,
is the same as an absolute sale. — Steen v. Harris, 8. O.
Ga., Dec. 10, 1888; 8 S. B. Rep. 206.

243. Sale — Evidence. In an action for the price

of goods, testimony of the agent who sold the goods
that he sold them to defendant for the price named by
plaintiff is not objectionable as stating a conclusion of
iAvr.— Julius King Optical Co. v. Treat, 8. 0. Mich., Nov. 28,
1888;40N. W. Rep. 912.

244. School- DISTRICTS — Officers. No cause of

action will accrue to the district as a corporation
against the county superintendent for the manner in
which he may exerf'Ise his discretion in changing the
boundary of such district. — School- district v. Wheeler, 8.
O. Neb., Dec. 13, 1888; 41 N. W. Rep. 143.

246. School- DiSTRiCTS—Powers. Construction of

powers of electors of school -districts under Acts Gen.
Assem. Iowa, ch. 172, § 7.— McShane v. Board, 8. C. Iowa,
Dec. 21, 1888; 41 N. W. Rep. 88.

246. Schools and School- districts — Schools — Es-
tablishment. The provision of Pub. St. Mass. ch. 48,

§ 14, as to establishment of schools is mandatory. —
City of Lynn v. County Commissioners, 8. J. 0. Mass., Jan.
2,1889;19N.E. Rep. 171.


Division- Conclusiveness of Inspector's Return.

Under How. St. Mich. § 6041, a return by the board of
school inspectors, stating that the persons consenting
are a majority of the resident tax-payers of the dis-
tricts, is conclusive.- Oen^foo. Board School Inspectors, 8.
0. Mich., Nov. 28, 1888; 40 N. W. Rep. 928.

248. Specific Pbrformanob— Rescission of Contract-
Purchaser with Notice. A purchaser from the grantee

Digitized by


Vol. 28.



with notice of tbe rescission acquires no title to the
premises, nor any right to specific perform anoe.— Ken-
nedy V. Smby, 8. 0. Tex., Nov. 27, 1888; 10 8. W. Rep. 88.

249. Spsoifio Perfobmancs — Decree — Foreign Cor-
poration. In this State a personal decree may be

rendered for specific performance against a foreign
corporation upon which actual service has been had
within the State under the provision of our statute. —
Shtuferv, O'Brien, W. Va., Ot. App., Dec. 1, 1888; 8 S. E.
Bep. 298.

260. Specipic PEBBORMANCES—Description. Ques-
tion as t6 tbe deflnlteness and certainty of description
of land, sale of which specific performance was sought.
—Minn, ^ L. B. Co. v. Cox, 8. C. Iowa, Dec. 21, 1888; 41 N.
W. Rep. 24.

251. Statute— Construction— County Treasurer.

Under acts N. C. 1876, ch. 141, § 2, and acts 1881, cb. 862, §
1, by appointment the county justices have the power
to restore the o/Boe of county treasurer though tbe
BherifT, upon whom its duties had developed during tbo
period of its abolition, had previously entered upon a
new term of of^ce.— Rhodes v. Hampton, 8. C. N. Car., Dec.
17,1888; 8 8. E. Bep. 219.

252. Subrogation— Mortgage— Foreclosure. Ques-
tion of right of subrogation, upon the facts of the case,
under a mortgage.— JoAn«on v. Barrett, 8. 0. Ind., Deo. 21,
1888; 19 N.E. Rep. 199.

258. Taxation— Tax- title— Purchaser's Title. A

purchaser at tax-sale under proceedings against the
patentee, whose patent is not of record in the county,
and who has parted with his title, takes no title as
against one claiming under a recorded conveyance
from the patentee's grantee, though the intermediate
conveyance is not recorded. — Allen v. Say, 8,0. Mo.,
Dec. 20, 1888; 10 8. W. Bep. 158.

254. Taxation— Bedemption — Tax- sale. Under

Code Miss. § 681, a redemption within the time divests
all title of a purchaser, though the redemptlonist is not
the real owner of the land. — Jamiton v. Thompson, 6
South. Bep. 107.

256. TAXATION-Sale— Injunction. Under act. Ala.

Feb. 17, 1886, providing for the sale of land in the city of
Montgomery for unpaid municipal, taxes objections
must be made before the recorder, and equity will not
enjoin a sale on those grounds. — Strenna v. City Council
0/ Montgomery, 8. C. Ala., Dec. 4, 1888; 5 South. Bep. 115.

256. Taxation— Exemption-Statutes— Bepeal by Con-
stitutional Amendment. ■> By the constitutional

amendment adopted in 1875, all prior special laws ex-
empting property from taxation were abrogated, unless
they constituted irrepealable contracts. — SttOe v. Col-
lector of CJiatham, 8. C. N. J., Dec. 26, 1888; 16 Atl. Bep. 225.

257. Taxation— Wild Lands — Bedemption. Acts

Ga. 1880-81, p. 45, §§ 3, 4, providing that wild lands not
returned for taxation shall be taxed doubly, etc., do not
apply to wild lands regularly returned for taxation. —
MiUen v. Howell, 8. C. Ga., Dec. 12, 1888; 8 8. E. Bep. 316.

258. Taxation— Costs— Tender. Costs in a suit for

taxes are not *'taxes, debts or demands due the com-
monwealth," and a tender of coupons of State bonds in
payment of them is not good. — EUett v. CommonweaUh,
Va. Ct. App., Dec. 5, 1888; 8 8. E. Bep. 246.

269. Taxation— Taxable Property— Contract. Four

persons entered into a written agreement with a cor-
poration to sell and convey to it certain described real
estate for a sum named: Held, under all the facts that
the debt thus arising from the corporation purchaser
was an assessable credit, under the constitution and
revenue laws of the State of Minnesota.— 5tote v. Rand, 8.
0. Minn., Dec. 18, 1888; 40 N. W. Bep. 885.

260. TAXATION — Tax- sale. Under St. Mo. §§ 8494,

8499, providing for suit for taxes against non-residents,
the names must be correctly given though the wrong
name appears on the recorded deed. — Troyer v. Wood,
Chamberlain V, Blodgett, 8, O. Mo., Dec 20, 1888; 10 8. W.
Bep. 42, 44.

261. Taxation— Beoovery of Tax Paid Under Mistake.
— r^Tazes paid under the belief that the assessment

and collection were legal, when In fact they were un-
authorized by law, may be recovered back. -*- City of
Newport v. Ringo's Esc^x., Ky. Ct. App., Dec. 6, 1888; 10 S.
W. Bep. 2.

262. Tax -SALE— Deed. " A tax- deed, to which the

holder of the tax- certificate was entitled three years-
before the tax- sale under which plaintiffs claimed, and
twelve years before plaintiff's tax- deed was executed^
having been obtained after the right to it was barred,,
can not be set up to defeat the tax- title on which
plalntlfTs rely. — Johns v. Griffin, 8. C. Iowa, Dec. 22, 1888;
41 N. W. Bep. 59.

268. Tax- BALE— Bedemption — Description. Suf-
ficiency of description in notice of and deed under tax-
sale.— (7H^A# v, UUey, 8. 0. Iowa, Dec. 21, 1888; 41 N. W.
Bep. 21.

284. Towage— Negligence — Proceedings in Bern.

Where a canal- boat, while in tow by certain tugs, pre-
paratory to making fast to a steamer which Is to convey
the tow to its destination. Is injured by the negligence
of the tugs, proceedings in rem cnnot'be maintained
therefor against the steamer, though owned by the
same company owning thQtuga.— Goldsmith v. The Syra-
cuse, U. 8. C. 0. (N. Y.), Nov. 14, 1888; 86 Fed. Bep. 880.

265. Towns— OflJcers— Salary of Trustee — Overseer of

the Poor. Underact Ind. March 81,1879, §32, on&

who is the duly elected township trustee, and has been*
paid, cannot claim a further compensation out of the-
couuty treasury, for the same time, for services as
overseer of the poor.— Board of Commissioners v. Temple-
ton, 8. C. Ind., Dec. 20, 1888; 19 N. B. Bep. 188.

266. Township Orders- Payment. Construction

of Code Iowa, 5§ 969, 971, 997, providing for payment ol
road OTdeT^.— Bradley v. Love, 8. C. Iowa, Deo. 22, 1688; 41
N. W. Bep. 52.

267. Trade mark— Infringement. Held, In ques-
tion of infringement of trade mark, that the words used
and printed were likely to mislead dealers and Indicate
a purpose to secure an advantage and therefore in-
vade the right of petitioner. — KeUer v. Goodrich Co., S.
C. Ind., Dec. 21, 1888; 19 N. E. Bep. 196.

268. Trespass— Damages — Bemote Injuries. In

trespass against a railway company for invading
plaintill's garden and laying Its track within 80 feet of
the house, no recovery can be had lor hazard to the
house by the proximity of the tracks and the conse-
quent danger from fire.— Fore v. Western N, C. R. Co., 8.
C. N. Car., Dec 18, 1888; 8 8. E. Bep. 885.

269. Trespass— Fences. One who causes his cattle

to be herded upon the unimproved and uninclosed
prairie land of another, without the latter's consent, is
liable therefor to the owner, though by the Iowa law a
trespass Is not committed when cattle running at large
entered unclosed Isind.— Harrison v. Adamson, 8. C. Iowa,

.Dec. 21, 1888; 41 N. W. Bep. 34.

270. Trial— Province of Court— Jury. Upon facts

of the case involving complicated computation of in-
terest: Held, that the court's action, in the instructions,
was not an interference with the province of the jury.—
People V. Sav. Bdnk, v. Borough of NorwaU, &. 0. Conn.,
Jan. 8, 1889; 16 Atl. Bep. 267.

271. Trial— Bemarks of Judge. Defendant, while

a witness, testified to irrelevant matter and made
threats and interruptions, in spite of judge's admoni-
tions who finally threatened to commit him for con-
tempt : i7e7d, that defendant could not complain that
this tended to prejudice him before the jury.— Aowden v.
Bailes, S. C. N. Car., Dec. 19, 1888; 8 8. E. Bep. 342.

272. Trial— Verdict— Special Findings. Whether a

special finding that a party has executed a warranty
deed, without setting out its terms, Is a conclusion of
law, is immaterial in facts of this case.— /ntfiana, etc. Co,
V, FinneU, 8. O. Ind., Dec. 22, 1888; 19 N. E. Bep. 204.

273. Trial— Verdict— Form. In ejectment, the jury

having rendered a verdict for "the amount or qunntity
of ground claimed," it is proper to direct plaintiff's at-
torney to formulate the verdict, setting out the land by
metes and bounds.— OoeM 9. Fugh,Ky, Ct. App., Dec. 16,,
1888; 10 8. W. Bep. 1.

Digitized by




No. 7

274. Trusts— Presumption — Rebuttal. Where a

conyeyance of land is made to a wife at the husband's
instance, the presumption of a resulting trust in his
favor Is rebutted, though he furnished the purchase
money.— amOand o. GUUland, 8. O. Mo., Deo. 30, 1888; 10
8. W. Bep. 189.

275. Trust— Resulting Trust— Evidenoe. Facts In

this case held not sufficient to create a resulting trust.
—Adams v. £urfu, 8. O. Mo., Nov. 26,1888; 10 8. W. Rep. 26.

276. Trust— Constructive Trust— Bvidence. Held,

that the evidence justified the finding that no fraud was
perpetrated on plaintiff by defendant, and that the lat-
ter was not a constructive trustee.— ifefMtt v. Cavender,
8. C. 8. Oar., Dec. 7, 1888; 8 8. IC. Rep. 193.

277. Trusts— Rights of Creditors. An income, given

by the will of the wife to the husband on condition of
his executing a release of his estate by the curtesy,
which he executes accordingly, is subject to the claims
of the husband's creditors, notwithstanding the pro-
visions of the will to the contrary. Distinguishing Lam-
pert V. Haydel, 9 8. W. Rep. 180,— Bank of Commerce v.
Chambere, 8. C. Mo., Nov. 26, 1888; 10 8. W. Rep. 38.

278. Usury— Penalties and Forfeiture. Under 18

8tat. 8. Car. (1882) p. 85 § 1, in reference to usury, where
a note containing an express agreement that the inter-
est shall run to the maturity of the note at ten per cent.,
is discounted by a bank at ten per cent, on the princi-
pal and interest to accrue, the chance of discount on
the interest, to the extenii of three per cent., the excess
over seven per cent., the legal rate, is usurious.— Goro-
Una Sav, Bank v, FarroU, 8. C. 8. Car., Dec. 7, 1888; 8 8. B.
Rep. 199.

279. Vendor ahd Vsndrb — Parol Trust. Under

the facts, a pretended sale of real estate was held
neither a sale nor anjLg^ement to sell, but an express
trust,*whioh, under Code Iowa, $ 1984, cannot be estab-
lished by parol.— ^fM^rewt o. Cancannon, 8. C. Iowa, Dec.
20,1888; 41N. W.Rep.8.

280. Warranty— Deed— Merger. A warranty deed

in the usual form does not merge a prior parol war-
ranty of quality of the land conveyed, so as to preclude
the grantee from recovering damages for breach of the
warranty.— SaWUe v. Chahnere, 8. C. Iowa, Dec. 21, 1888;
41 N. W. Rep. 80.

281. WARRANTY—Bvidence— Damages. An order

addressed to plaintiff, authorizing him to procure of
the manufacturer a machine for which defendant
agreed to pay, is not a contract with the manufacturer,
it appearing that plaintiff had no authority to make it
for the manufacturer.— Jodbson v. Mott, 8. C. Iowa, Dec.
20,1888;41N. W. Rep. 12.

282. Watbr-ooursss- Diversion of Water— Compen-
sation. On a hearing, under act Conn. 1870, to assess

damages for the withdrawal of water from a stream, a
mill owner may testify as to the profits received from
his mill in a year after the water was withdrawn.— JBor-
ough 0/ Harwalk V. Blanchard, 6, C. Err. Conn., 8ept. 21,
18B8; 16 Atl. Rep. 242.

283. Watbrcoursb- Damages— Bvidence. In an

action for damage by reason of back water and over-
flow, estimates of farmers and neighbors as to the
quantity of water which flowed through the channel is
admissible.— JVbe. v. C, B. ^ Q, R. Co,, 8. C. Iowa, Dec. 21,
1888;41N. W. Rep. 42.

284. Water and Water- coursbs — Obstruction —

License. A grantee of water privileges, who is

without right to dam up the water so as in any manner
to overflow a certain spring on the premises, cannot
obstruct or affect it injuriously by erecting a dam or
embankment across its outlet.— ^ord v. lMken$t 8. C. Ga.,
Dec. 10, 1888 ; 8 8. E. Rep. 818.

285. WIDOW'S Election. A devise of a life -estate

to the testator's widow does not bar her right to a dis-
tributive share in his realty. — Howard v. Wate<m, 8. C.
Iowa, Dec. 19, 1888; 41 N. W. Rep. 45.

286. Wife's 8eparatb Bstatb. Where a husband,

in good faith, while he is solvent, gives his wife money,
and borrows it of her, giving a mortgage to secure it,
his creditors, whose debts were contracted long after,
cannot charge her with it as garnishee.- BecA; v. lAnooln,
8. C. Iowa, Dec. 22, 1688; 41 N. W. Rep. 61.

287. Wills— Construction. Devise to children after

death of wife held void, where property is left abso-
lutely to yrVLe.—MeCiaUm v. Larchar, N. J. Ct. Chan., Dec.
27, 1888; 16 AU. Rep. 269.

288. Will— Construction. Sdd, under the terms

of the will that three married daughters took the land
to the exclusion of a married daughter who had died
before her mother, the intestate.— iZofrertoon v. Oarrei, 8.
C. Tex., Dec. 21, 1888; 10 8. W. Rep. 96.

289. WILLS— Legatees— Interest. The general rule

is that where no time is flxed by the will for the pay-
ment of a general legacy, interest will begin to accrue
on it at the end of a year from the testator's death. —
2>avi»on v. Bake, 8. C. N. J., Dec. 18, 1888; 16 Atl. Rep. 227.

290. WILLS— Pleading— Attestation. 8ufflciency of

averment of non- attestation of will in suit to set it
aside. — In re BwreU'e Estate, 8. C. CaJ., Dec. 10, 1888; 19
Pac. Rep. 880.

291. WILLS— Construction— Life Estate— Power of Dis-
posal. A testator, gave the general residue of his

estate to his wife, "to her use and behoof and dispose
of for her maintenance during her natural life:" Held,
that she oould, acting in good faith, sell the bulk of the
property for the consideration of a life-support.— iNoA-
ardaon V, Biehmrdeon, 8. J.C. .Me., Nov. 19, 1888; 16 Atl.
Rep. 260.

292. Wills— Devise. Bequest to wife of property

so long as she may live followed by bequest to daughter
of so much as may remain at death of wife creates life
estate in wife, with power of disposition.— In re Foster's
Wm, 8. C. Iowa, Dec. 21, 1888; 41 N. W. Rep. 48.

298. WILL— Construction— Ambiguity. A testator

gave to his wife certain land for use during her life,
certain personal property, and a legacy of 91,000. By a
subsequent clause he bequeathed to his daughter, at
his wife's death, *<all the property of all descriptions
that I have heretofore willed to my wife:" Held, that
under the term **property," the daughter was not en-
titled to take the legacy of |1,000 given to the wife; the
latter dying before the testator. — Patterson v. Wilson, 8.
C. N Car., Dec. 17, 1888; 8 8. E. Rep. 229.

294. WiLLS—Proof— Citation. Construction of Code

N. C. $ 2148, providing for proof of uncupative wills.- In
re Half good's WiU, 8. C. N. Car., Dec. 17, 1888; 8 8. E. Rep.

295. Wills— Construction— Ambiguity. A oondition

annexed to a devise, avoidingit if the beneficiary marry
into the "family" of a person named, in the absence of
anything in the context to the contrary, means one of
the children of such person. — PhUUps v, Ferguson, Ya.
Ct. App., Dec. 6, 1888; 8 8. E. Rep. 241.

296. Will— Construction. Question under terms

of will whether a sum of money was left absolutely or
merely in case of any excess in the estate. — Noyes v.
PrUchard, 8. J. C. Mass., Dec. 81, 1888 ; 19 N. E. Rep. 162.

297. Wills- Construction — Description of Devisees.

Testator devised land to his wife for life, "and

after her death unto the heirs of my daughter, E and
the heirs of my son H, which said heirs shall take as
purchasers from me, and not by inheritance or of de-
scent from my said wife :" Held, that die heirs of E and
H took per stirpes, and not per eapita, — Preston v. Brant,
8. C. Mo., Dec. 20, 1888; 10 8. W. Rep. 78.

298. Witness — Examination — Collateral Matters.

Though it is error to admit evidence to contradict

witnesses as to collateral matters, the error is rendered
harmless by subsequently recalling such witnesses, and
allowing them to explain their former testimony.- Pat-
terson V. WUson, 8. C. N. Car., Dec. 18, 1888; 8 8. E. Rep. 341.

299. Witness— Competency — Transactions with De-
cedent. In an action involving title to land, where

the question is whether the plaintifTs ancestor owned
certain land which he sold in order to buy the land in
dispute, testimony of his widow that she saw the deed
to the land in dispute to her husband, in her husband's
possession, that she saw him start off with the money,
and bring back the deed, is not inadmissible under Code
N. C. § 600,—McCaU v, Wilson, 8. C. N. Car., Dec. 17, 1888; 8
8. E. Rep. 225.

Digitized by


Vol. 28.



^Ite (^tnix^l £aw Jffuvtmt



Thsrb appears to be a well defined move-
ment, in the direction of a national bank-
ruptcy law. The initiative comes from St.
Louis. The Associated Wholesale Grocers,
of that city, have sent letters to prominent
commercial associations, and business houses
in the country, inviting them to send dele-
gates to a national convention, to be held at
St. Louis, on February 28, the leading ob-
ject of which, will be to formulate and pre-
sent to congress, an equitable bankrupt act,
which will ^* secure protection to the honest
merchant, inflict punishment on the dishonest
merchant, and establish a uniform system for
the collection, preservation and distribution
of the estates of insolvents, at a minimum
cost." To what extent the commercial asso-
ciations invited will respond, is not definitely
known, but those issuing the invitations, ex-
pect that the convention will be thoroughly

It is to be hoped, that this movement will
spread, develope, and increase in strength,
and that the next congress may be induced to
act in the matter. The arguments in favor of
a wise, and uniform national bankrupt law,
are threadbare, and need not be repeated here.
An appreciation of the inadequacy of State
insolvency laws, coupled with the increasing
volume of trade, and commerce, between lis-
ter States, make^the passage, of a universal
national bankrupt law seem the more impera-
tive and necessary to the mercantile interests
of the country.

A WRITER in the February Century, on the
subject of ^^Imperfections of American Law
Procedure," discusses, in an interesting way,
the relative advantages of English and Amer-
ican litigants, taking the position, that though
litigation in England is expensive, it has at
least the merit of rapidity, and that it is pos-
sible for an English plaintiff, to hurry a rich
and influential defendant through their whole

Vol. 28— No. 8.

system of courts, and out at the court of last
resort, with a rapidity likely to take away the
breath of an American lawyer or judge, and
that on the other hand American courts have
given sound law, without unconscionable ex-
pense, and with entire fearlessness ; t>ut that
it cannot be said that rapidity is a common
characteristic of the forty or more systems
of courts kept up by our federal. State and
Territorial governments, and that the rich
defendant, who wishes to resist the establish-
ment of a point against him, can use our sys-
tem of appeals, carrying his opponent through
all the courts of a State, permitting him just
to see daylight in the court of last resort, and
then dropping him again to the lower court,
to begin the struggle over again.

Whether the statement, as to the English
courts, is entirely true, we do not undertake
to say, but the slowness of American courts,
in general, is so well founded, as to be al-
most proverbial. Beginning with the highest
court of our land, as pointed out in an edi-
torial in a recent issue, the business is so
congested, as to cause a postponement of
justice for three years, and, indeed, a prac-
tical denial of it in many cases. And with-
out possessing the statistics, we venture to
assert, that this same condition of the' docket
exists in the case of a large majority of the
State supreme courts, to say nothing of in-
ferior tribunals. It is not our intention, nor
is it possible for us to suggest a remedy, but
the evil is of grave concern to litigants every-
where, and sooner or later a solution of the
problem must be had.

The recent change of the death penalty in
New York, from hanging to that of the more
humane method of electricity, suggests the
statement, that a still greater revolution has
taken place, in public sentiment, in most
countries of Europe. In Italy, strange as it
may seem, when we consider the hot-blooded
character of the people, and their consequent
proneness to violence, her law-makers have
concluded, that the death penalty has no in-
fluence in diminishing the frequency of mur«
der, and have accordingly passed a law abol-
ishing it altogether. It has practically been
abandoned in a number of other European
countries — Belgium, since 1863 — Prusssia,
Sweden, France and Austria. Portugal, Hoi-

Digitized by




No. a

land and Boumania have also totally abolished
it, and Rassia is taking steps in that direc-
tion. It is not improbable, that before long
most of the others will follow the example of
Italy. ^The agitation in England of the sub-
ject of electrity, as a method of execution,
leads the London Lancet to say :

^'Supposing the fatal switch is instantly
fatal, in what manner it is more humane than
the guillotine, or the easy asphyxia from sus-
pension of the neck, it were, indeed, difficult
to explain. But, strangely, the promoters
of this new method praise and support it, not
for the wholesome dread that it may excite
in the mind of the would-be murderer, but
for the happy mode of despatch to which all
murderers will be subjected when the chair
of death comes into public service. Which-
ever be the right theory on this subject, we
believe the use of this new instrument of
death, as advanced by its advocates, to be
fundamentally unsound. If it be right to
have a mode of death for criminals that shall
excite some terror, as many wisis ^nd logical
legislators believe, then we have* already the
very means for exciting that 'i/^holesome
alarm, a means also which long time and cus-
tom have sanctioned and which had better
not be abrogated while this form of punish-
ment lasts. We take the opposite view, that
the perfect painlessness of death by the elec-
tric shock will divest the punishment of some
of its terrors. Then the mere implantation of
this notion will only lead a certain class of

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 49 of 151)