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The American reports: containing all decisions of general ..., Volume 36 online

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may deem proper, and apply the net proceeds," etc., is void. Janes v.
Syer (Md.)» 866.
3. flCade in one State — effect upon property in another.] A general assign-
ment for the benefit of creditors, made in another State, is valid in Maine
so far as to protect the assigned real estate situated in Maine from attach-
ment bj a non-resident creditor, who has assented to the assignment and
received in part the benefits thereby secured to him. Ohaffee v. Fourth
National Bank of New York (Me.), 846.

See LiKK, 399 ; Vendor's Luen, 488.

ATTORNEY AND CLIENT.

!• Attorney to collect — must reoeiTe only money.] An attorney employed
to collect a note has no implied authority to receive any thing but money
in payment. Herriman v. Shomon (Kans.), 261.

2. Zhrldenoe — communication by attorney to client] A practicing attorney
also carried on a liquor store. R., one of his clients, called on him there,
and in presence of several others put a supposed case to him, and asked
him, if such a case existed, would there be any liability ? The attorney
gave his opinion, and asked if the case put was a certain real transaction,
and R. said it was. No such case was then pending. R paid no fee,
there was no general retainer, and the attorney was never engaged in the
real case. The supposed case afterward arising, the attorney testified on
the trial to the interview, and that he did not consider that R. was advis-
ing with him as counsel at that time. Held, improper. Bacon v. Fritbie
(N. Y.), 627.

d. Undertaking to collect — embezzlement by agent.] An attomey-at-law
receipting a note ** for collection,'' against parties residing in another
county, is responsible for the embezzlement of the proceeds by another
attorney to whom he intrusts the business of collection. Cummins v.
ffeald (Kans.), 264.

BANK.

ZnsolTent — preferred class — comrt funds.] A general deposit of court funds
and of funds of court officers in a bank, by order of court, has no prefer,
ence over claims of other creditors, on the insolvency of the bank, although
the assets are in the hands of a receiver. Otis v. Qrou (HI.), 157.

See NATiONAii Bank ; Aoenct, 596.

BAR.
8ee Criminal Law, 754; Judoubnt, 79; Rblkasi» 880.

BIGAMY.
See Cbiminal Law, 17.



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876 INDEX.

BILL OF EXCHANGE.

SeS NBOOTIABLS iNflTBUMEim.

BILL OP LADING.
H a— i p tion— "bTratry of marinfln"— thaft by porMr.] The plaintiff

1^ shipped on a steamship a qaaotitj of gold coin, aocepting a bill of Uuiing

|. exempting the defendant from liabilitj for loss bj "barratrj of mmatm

I or mariners." Some of the monej was stolen on the passage, and the

r proof indicated that it was stolen bj the parser. HM, within the exemp-

tion. SpinetU v. AUa9 SUamMp CkmpcMy (N. Y.), 579.

BREACH OF PROMISE OF MARRIAGE.
See EviDBifCB, 442.

BRIDGE.
See Municipal Corporation, 51.

BRIBERT.
See Officb and Officer, 238.

BURDEN OF PROOF.
Of laaaiilty.] See Criminal Law, 795.

BURGLARY.
See Criminal Law, 899.

BURIAL GROUND.
See Nuisance, 816.

CARRIER.

L Oontraot — receipt — oonneotiiig oarrier.] — ^The plaintiff intrusted tode.
fendant, a common carrier, a parcel addressed to a point bejond the
termination of its route. The defendant's agent told plaintiff that defend-
ant could not bill beyond its own route, but at his request, received the
charges through, and delivered to plaintiff a receipt containing a danse
limiting its liability to it own route. The plaintiff being unable to read,
the defendant's agent read the receipt to him, omitting the limitation
clause. The defendant had no special business relations with the con-
necting carriers, but was accustomed to deliver and receive parcels and
pay and receive charges to and from them. The parcel was delivered to
the connecting carriers and lost by them. HM^ that the pl^ntiff could
maintain no action against the defendant. Hadd v. UnUed Statee and
Canada Express Company (Vt.), 757.

2. Bzpnlaion for non-payment of full fare.] A carrier has no right to expel
a passenger for non-payment of full fare without first returning the fkie
paid, the passenger having offered to pay the balance before expulsioa



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INDEX. 877

CARRIER — Continued,
bat after the train is stopped. Bland v. Southern Paeifle Railroad
Company (Ga).), 50.

8. Hackimwi — degree of oare.] Proprietors of hacks are oommon carriers,
boand to the ntmoet care and skill. Bonce v, Dubuque Street Raihoay
Company (Iowa), 221 .

4. NegUgvuoe — trespasser.] A railroad companj is not liable for the acci-
dental death of a boy permitted by the condactor, against its rales, to ride
gratoitoaslj on the train to sell newspapers. BuffY. Allegheny BaUroad
Company (Penn.), 675.

See Fkrrt, 6.

CBRTIFICATB OF CORPORATB INDEBTEDNESS.
See Sale, 528.

CERTIFICATE OF DEPOSIT.
Bights ot assign— o£] A certificate of deposit bore the following words writ-
ten in red ink across the face : *' The certificate is sabject to any
sabseqnent claim for collection or any other fees arising oat of the
disbarsement of the legacy of which this money is part of proceeds.**
The payee indorsed it in blank and delivered it. Held, that even consider-
ing the certificate non-negotiable, the transferee might pledge it to an
innocent party, who would hold it as against the true owner, to the amoout
advanced, anaflected by the equities between the transferor and the payee.
JnUmaUanal Bank v. German Bank (Mo.), 468.

CHALLENGE.
See CRiMiNAii Law, 5^

CHARTER PARTY.
See Agbnct, 48.

CHATTEL MORTQAQB.
Bee MORTOAOB. 151.

COMITY.

See Statutb, 648.

COMPROMISE.
J See Rblbabb. 880.

COMPROMISE OF CRDIBL
See Contract, 67.

CONCEALED WEAPONE
See CRiMiNAii Law, 15.







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878 INDEX.

CONDITION.
See Salb, 456.



CONFLICT OF LAWS.
See AssiGNMSKT for the Bbnefit of Cbbditors, 84S.

CONSTITUTIONAL LAW.
L OoATiotioii on repatation of ke«piiig liquor ihop.] A statate impooiiig a
penalty for keeping a place in which it is reputed that intoxicating liqnon
are kept for Bale, without license, is not nnconstitutional. State v, TAamas
(Conn.). 98.

2. ZOaotion of Judge to fill vaoanoy.] Where jadges are elected bj the legis-

latare, and there is no express constitutional provision to the contrarj, a
judge elected in place of one dying in office holds for the full term and not
simply for the unexpired term. Meredith, Ex parte (Gratt), 771.

3. Spaoial restraint of trade.] A Sunday law making it a misdemeanor " for

any person engaged in the business of baking to engage, or permit others
in his employ to engage, in the business of baking for the purpose of sale,
between the hours of 6 o'clock P. if. on Saturday and 6 o'clock P. M. on
Sunday/' etc., is a special law, and as such, unconstitutional. Ex parte
Weeterfleld (Cal.), 47.

4. Street railway — rights of lot owners.] A horse railway company being

authorized by the legislature to lay and operate their railway in a pnblic
street,an adjoining lot-owner has no right to compensation as for the taking
of his property for a new and additional servitude. HU$ v. Baltim^e and
Bampden Paesenger Railway Company (Md.), 871.

6« Taxation for local improTmnents.] Under a constitutional power to au-
thorize local improvements in cities, towns and villages " by special taxa-
tion of contiguous property or otherwise," it is not competent for the legis-
lature to enact that the cost of sidewalks may be recovered of the non-resi-
dent lot owners by action at law. Crato v. Village of ToUmo (111.), 148.

6. Towns — how composed.] A town is a civil division composed of con-
tiguous territory ; and under constitutional powers to county boards to
change town boundarie8,a town cannot be made to consist of two tracts not
contiguous. Chicago and N, W. Railway Company v. Town of OconUi
(Wis.), 840.

7« Voting — rosidenoe.] A student attending college, and having no other
residence at the college town, and no intention of remaining there per-
manently, is not entitled to vote there. Vanderpoel v. O'Hanlon (Iowa), 21&

CONSTRUCTIVE FRAUD
See COBFORATION, 40.

CONTRACT.
!• AgtBoy-^ptloe in case of misondarstanding.] Where a cou tract for work
is made through an agent on behalf of one of the parties, and on comple



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INDEX. 879

CONTRACT — CorUmued.
ttoQ the fwrtie^ differ in their andentaodiDgas to the price, the law will
award a reaaonable compeneatioii, although it may exceed what the agent
was aathorixed to offer. Turner v. Webiter (Kans.), 251.

SL Untire — performance prevented by accident — reooTery.] Under a con-
tract to erect au addition to a bailding for a fixed sum for the entire work,
there can be no recovery where complete performance was prevented by
the destruction of the building by fire without fault of either party, and
there was no acceptance of what had been done. pUdeto v. Bedey (Mich.)»
483.

3. PabUo policy —restraint of trade.] A dentist, practicing in the Tillage
and town of L., sold his business, contracting not to practice dentistry
** within a radius of ten miles of Litchfield/' without any specified limit
of time. Hdd^ a valid contract not to practice dentistry within ten miles
of the center of the village of L., without regard to the purchaser's sub-
aeqnently ceasing business. Cook v. Johnson (Conn.), 04.

4. .] An agreement by a railway company, in consideration of a grant

of lands in a city, that it would build and maintain a station thereon
and nowhere else in the city, is illegal and void as against pubUe
policy, and no remedy will be granted for the company's subsequent erec-
tion of a station on other lands in the city. Williamson v. OJ^eoffO, B, I,
and P. B. Co. (Iowa), 206.

6. Validity — compromiae of crime.] A man being in Jail on a charge of
false pretenses, his wife executed her note and mortgage to the complain-
ant in consideration of the withdrawal of the prosecution. Bdd, that the
instruments were void. McMahon v. Smith (C^nn.). 67.

DtMrtad wife's, for neoessazles.] 8ee Marriagb, 762.

88$ Carbtkb, 757 ; Mastter and SERVAirr, 852; Specific PERFOBifAHOB» 671;
Statute op Fkauds, 848.

CONTRACTOR.
See Master and Servant, 820.

CONTRIBUTORY NEGLIGENCE.
6t$ NBOiiiGENCB, 459, 608, 662 ; Ferrt, 60t

CORPORATION.

L rJaUe toindlctinent for Sabbath-breaking - what oonstitatflstlMoffniMi]

A corporation Is liable to indictment for Sabbath-breaking, but in the i
of a railroad compan7, its assent cannot be inferred by proof of the ]
age of a single train over the railroad on Sunday. State ▼. BaUimen
and Ohio BaUroad Company (W. Va.), 808.
9l> T^nisie« — oonstmctiTe frand.] A corporation resolved to borrow moaej
open mortgage to pay its debts. The president had purchased the deUi
and had them assigned to a firm of which he was a member. He executed



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INDEX,

CORPORATION — Cfonti»u$d.
the mortgage, m prestdent, to the finD, to secure tlie debte. BeUL tovaBI,
becAuae there was no borrowing ; and beeauae of the fidoeiarj reiatiai
between the president and the corporation. Daoii v. Bfck Ore§k Jj. F 4
jr.(^.(0aLX4a

8e$ Mastkb aho Sbrtaut, 588.

COUNTY.
6$§ MmricTPAii Corporation, 88&

COVENANT.
8m Landlord and Trnant» 600.

CRIMINAL LAW.
!• Appml — aaoapa.] The court wiU not entertain the appeal of i



prisoner. FtopU ▼. Redinger (CaL ), 82 .

8. — — .] An appeal from a criminal conviction cannot be prosecuted bj •
fugitive defendant. 8taU v, Wright (La. Ann \ 874.

8* Assault with intent to kill — aiming at one and wounding anottisr«] Wlien
one aiming at A. misses bim and wounds B., he cannot be convicted d
assault with intent to kill B. LaeefiM v. State (Ark.), 8.

4. Bar — nolle prosequL] A noUe prawqui, entered after the commencemeai
of the trial but before verdict, by leave of court, is no bar to a seeood is-
dictment for the same offense. State v. Champeau (Vt), 754.

5* Bigamy.] Where A. marries B., and afterward during B/s lifs marries C.
and still afterward, when B. is divorced, but during C.'s life, marries D^
the last marriage is not bigamous, because the second was void. Hatbntk
V. State (Ark.). 17.

6. Burglary — evidenoe — purpose of breaking.] On a trial for burglary,
evidence on the part of the prisoner that the owner of the house was &
lewd woman, and that he had had improper intimacy with her, is compe-
tent to characterize the breaking. RohiTfon v. State (Md.), 899.

9. Oonoealed weapons — Journey — unloaded pistoL] Defendant, living ia
Arkansas, had been on a visit to Memphis, and on his return stopped
a few hours at Marianna, Lee county, Arkansas. While there he carried
two pistols on his person, both unloaded and one without a tube. ReH*
that he was not then " upon a journey," but tliat he was not ^* wearing
weapons," within the meaning of the statute. Ckirr y. StaU (Ark.), 15.

8. Bvldenoe — d3ring declarations.] Dying declarations are admissible in
evidence If the declarant had given up all hope of life, although he ^
not state that he was expecting to die immediately, and although thesaas
matter had been testified to by the declarant on a preliminary examinaski
of the accused, and that testimony had been prc^Mriy given in erldenoa
BtaU ▼. WUean (Kans.), 257.



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INDEX, 881

CRIMINAL LAW — Continued.

9- j Dying declarations are not admissible in evidenoe, If It appears that
tbe declarant had the slightest hope of recovery, althoagh he dies within
an hoar afterward. People v. Hodgdon (Cal.), 80.
lOr — ^.] The admissibilitj in evidence of dying declarations is a blended
qaeetion of law and of fact. Dying declarations are not incompetent be-
eaoae made in answer to questions by the wife and the physician of the
deceased. State v. Tmae (La. Ann.), 298.

IL -— » Ibnner orosa-ezamination of prisoner.] If a prisoner testifies on
his own behalf, his answers on his cross^xamination on a former trial of
the same case may be ased against him. 8UUe v. Eddings (Mo.), 496.

12. insanity — burden of prooL] Where insanity is set ap as a defense

in a criminal case, the defendant is bound to satisfy the jury of the in-
sanity by a preponderance of evidence. Stat^ v. Bedemeier (Mo.), 402.

13. .] Where insanity is set up as a defense in a criminal action, the bur-
den is on the defendant to prove it beyond a reasonable doubt. Baeei-
galupo V. CommonweaUh (Gratt.), 795.

1^ intozioation.] Intoxication may be shown to negative malice or pre«

meditation, in the absence of evidence showing premeditation. State v.
Triwu (La. Ann.), 298.

15* marriage.] In a trial for bigamy, marriage may be proved by admis.

sions and evidence of marital cohabitation and holding out HcUbrook
V. State (Ark.), 17.

16i. >] A decree of divorce, g^ranted upon notice to the defendant, is evidence
of the marriage. Id.

1% preliminary examination of prisoner.] Under a statute which per-
mits the defendant in a criminal proceeding to be a witness in his own
behalf, at his own request, but not otherwise, and provides that his omis-
sion or refusal to testify shall create no presumption against him, the
State may put in evidence his own testimony voluntarily given on his
preliminary examination. State ▼. Olass (Wis.), 845.

18. Ckand Jmry — challenge.] An objection to a grand juror on account of
bis expression of an opinion cannot be pleaded In abatement. State v.
Bamtin (Conn.), 54.

19. Homicide — presumption of malice.] A charge that malice Is presumed
from homicide is error. State v. T7if>as (La. Ann.), 298.

flOL .»— during robbery — intent] One who unintentionally kills another
In an attempt at robbery is guilty of murder in the first degree, under a
statute making it murder in the first degree to kill any person in an
attempt to commit robbery. Moynifian v. State (Ind.), 178.

Ai» Infiuioy — assault in sport — charge as to law.] An infant, of an age to
be responsible for crime, is liable to criminal prosecution for an injury
caused to another by throwing a stone In sport and without malice ; and a
diarge by the court that if the Jury believe that the defendant Intention-

Vol. XXXVI— 111



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882 INDEX

CRIMINAL LAW— C^iniMd.
ally hit the complainant with a stone, and there was ao legal Jastifieatkiii,
he was gailty of assault and hattenr, and it was their dntj so to find, is
not error. HiU v. State (Ga.). 120

22, capacity of ln£uKt to oommit crime.] A charge of felony can be

established against an infant of eleven years of age only by the strongest
and clearest proof of his capacity to entertain a criminal intent. AngeU
V. People (111), 183.

23. Indictment — laroeny — description of goods.] An indictment alleging
larceny of '^twenty-five cords of wood" is valid without alleging that
the wood was ** goods and chattels/' 8t€Ue v. Parker (Ark ), 5.

24. .] An objection that an indictment was found by less than twelve

jurors is not maintainable. State v. ffanUin (Conn.). 54.

26. Jurisdiction — amendment of Judgment] On a trial for murder, a verdict
was rendered of involuntary manslaughter, and the jury assessed a fine.
The court thereupon discharged the prisoner. Afterward, at the same
term, the court set aside the judgment, in the absence of the prisoner, and
entered j udgment for the fine assessed, and for Imprisonment. HM, valid.
Price V. Commonwealth (Gratt.). ."97.

26. Laroeny — intent — drunkenness.] One wrongfully taking the property
of anotlier, but too drunk to entertain a felonious intent, cannot be oon^
victed of larceny. Wood v. State (Ark.), 13.

27. of goods of several at one time.] For larceny of the goods of

several at tlie same time there can be conviction and sentence bat for a
siugle offense. HoUee v. United States (MacArthur), 106.

28. Trial — conmients on omission of prisoner to testify.] If the counsel for
the people, in a criminal trial, comment on the omission of the defendant to
testify in his own l>ehalf, it is ground for a new trial, although the counsel
was stopped by the court and the jury were instructed to disregard iboee
comments. Angelo v. People (111.), 133.

29. presence of officer in Jury-room.] A criminal conviction will be set

aside, if the officer in charge of the jury remained in their room during
tbeir deliberations, although he did not speak to them. People v. Knapp
(Mich.), 438.

30. polling Jury.] The defendant in a criminal case has no right to poll

tlie jury. Slate v. Hof/t (Conn.), 89.

oi. restricting argument.] The restriction of the argument in a mnrder

case to four hours on each side is valid. Id,

32. right of counsel to take notes.] Where a stenographer is supplied,

it is not error to refuse to give time for counsel to take full notes. H.

33. Sentence — allocution.] In sentencing for murder, U eeeme, it is not neesf*
sary to ask tlie prisoner if he has any thing to say against sentence. At all
events, a motion in arrest of judgment, in which the omission b not set op
as error, is a waiver of such right. Id,



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INDEX. 883

CRIMINAL LAW - Continued.

94, BApe — Ittdiotaimit — raqniidtM.] In an indictment for abetting a rape
actually oommitted bj " a person unknown/* it is not necessary to allege
tbat such person was a male, or capable of committing rape ; the use of
the word " violently " instead of *' forcibly " does not yitiate it ; and the
omission of the words "against the form of the statute/' etc., cannot be
urged on motion in arrest. Slate v. WUlianis (La. Ann.), 272.

36. •^— oonMnt.] If a woman finally consents to sexual intercourse,
although such consent is reluctant, and is obtained through fear, duress,
and fraud, or partly through fear and partly by force, the offense is not
tape. WhiUaker v. State (Wis.), 856.

CRIMINAL CONVICTION.
See Evidence, 186.

DAMAGES.

1. Measure of — assatilt and battery.] Exemplary damages cannot be recov-

ered in a civil action for an assault and battery which is also punishable

by a criminal prosecution. Huhcr v. letiber (MacArthur), 110.

«

2. action for injury by blasting — mental anxiety.] In an action

of damages for injury to real estate by blasting, the mental anx-
iety of the plaintiff for the personal safety of himself and his family is
not a proper element of damages. Wyman v. LeavUt (Me.), 808.

3. n^ligenoe.] In an action of damages for negligence producing

death, the measure of damages is the pecuniary loss, measured
by the probable earnings of the deceased, without considering the oppor.
tunities of acquiring wealth by change of circumstances in his life.
MamfieM Coal and Coke Company v. McEnery (Penn.), 662.

4. mental pain.] In an action brought by a person for a personal

injury, sustained by him through the negligence of another, hia mental
suffering is a proper element of damage. Porter v. Hannibal db St.
Joseph Bailroad Company (Mo.), 454.

6. -^— logs taken by mistake.] In trespass and trover for logs cut and
carried away in the mistaken but honest belief that the defendant's
employer was the owner, the measure of damages is the value in the
woods whence they were taken, and not at the mill where they were car-
ried to be sawed. TUden v. Johnson (Vt.), 769.

6. Ckmaeqnential — iqjunction.] In an action on a bond given on an injunction
restraining the erection of a stable, it was held that injury done to th«
plaintiff's cows, by exposure to the weather, and the consequential diminU'^
Hon of their flow of milk, was a proper item of damage. Lang$ ▼•
Wagner (Md.), 880.

Bee Animals, 751 ; Evidence, 186, 624; Librl, 450.



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884 INDEX.

DECLARATION.
Of gnuilor.] 8$e Byiden cs, 74(1
Of Mrraat.] 8u Bviobkob, 895.

DEBD.

1. OmgmdlSbf — monomania.] A deed cannot be Impeached on the groanA thai

the gnmtor at the time of execution was a monomaniac on the aobjeet of
religion. Burge$$ ▼. PoUoek (Iowa), 2ia

2, Bzeontion — algnlng by christened name.] A mortgage is well execnted

by a married woman, signing by her christened name alone, her fall
name appearing in the body of the instrament and the acknowied^ment
Z<mn T. Waller (Ind.), 198

DELIVERY.
OoBStmoltirew] ^8m8aui,462.

DISCHARGE.
iSiM SURBTT, 866.

DISSOLUTION.
IMioe o^ to pnnriana dealers.] See Pabthbbshep, Ml

DISTRIBUTION.
See Wni^, 716.

DIVORCE,
Marbiaob, 240, 762, 848.

DURESS.
Tkiwil of lawlal amat] A threat of lawful arrest of a hasband for a crime
actually committed by him does not oonstitate such duress as will relioTe
the wife from her contract to indemnify the person injured. Oomfian ▼.
Bunker HiU Bank (111.). 147.

See Reward, 129.

DYING DECLARATIONS.
See Criminal Law, 80, 267, 288.

EASEMENT.

Way «• when not implied — severance of estate — naoee ai ty . ] In 1889
the owner of a lot built two houses on it, one fifteen feet front, the
other twelve and one-half feet front in the first story, and fifteen feel
in the upper stories, leaving an alley of two and one-half feet in width
between them, open to the street, thirty feet deep, and communicating it



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INDEX. 886

EASEMENT — Continued.
the inner end by gates with the rear yards of both houses, the timbers of
the latter hoase extending across the allej from the apper stories, and rest-
ing in the wall of the first house. The alley was oaed as aoommon passage-
way by the occupants of both houses. At the inner end of the alley a fence
at right angles with the street, extending to the rear of the lot, di^ded it
into equal parts of fifteen feet each. Access could be had to the yard
through the house or from a lane in the rear of the premises. The builder
and his widow owned both houses until 1865, when the property was sold
under decree to W., who in that year sold the second house to C. by a deed
including the alley, without reservation of any right in it to the occupants
of the other house. In 1868 W. sold the first house to S. by a deed embrac
ing no part of the alley, nor any right in it. Held^ that the owners of the
first house got no right to the use of the alley. MUeheU v. Seipd (fid.%
401

ELECTION.
8$e CosmrxmoHKi. Law, 771; Offiob, 825.

ESCAPE.
ifiteCBOfiNAL Law. 82,374.

ESTOPPEL.
8es Insurancb, 617.

EVIDENCE.

1. Bre a c h of promiae of marriage — sodaotion — defendant's paooniary

standing — offer to marry after action.] In an action for breach of
promise to marry, evidence of the defendant's financial standing is ad-
missible, also evidence of seduction ; but evidence of an offer to marry,



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