Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volumes 1-12 online

. (page 22 of 51)
Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 22 of 51)
Font size
QR-code for this ebook


under the constitution and laws of G^rgia ; and an administrator, who pays
funds to persons at the time apparently entitled to such payment, but afterward
found to be not entitled, is protected under the said relief provisions. 1869.
Dcme V. BagUy (40 Oa. 181). n, 670. 8ee Tbust.

Z Interest on funds of estate. Where there is unnecessary delay in making
a final settlement of the funds in the hands of administrators, interest will be
required of them ; and where they use the funds so retained in private specu-
lation, they will be liable for compound interest. 1870. Johneon'e AdminU
traton v. Hedriek (88 Ind. 129), V, 191.

3. Debt due from executor to testator. In this country the liability of an
executor for a debt due his testator is not discharged, but the debt is, in his
hands, general assets of the estate for the benefit of creditors, legatees and
other parUes interested. 1869. Easter v. Piereon (27 Iowa, 90), I, 254.

4. Actions against. A guardian appointed in one State cannot maintain, as
such, a suit against an executor or administrator appointed in another State.
1871. Leonard v. PiUnam (61 N. H. 247), XII, 106.

6. Action on oorenant against incumbrance. The administrator and not
the heir is the proper party to bring action upon a covenant, against incum-
brance broken during the life of the ancestor. 1870. Frink v. BellU (88 Ind.
185), V, 198.

6. Attorney's foes. Administrators are jointly and personally liable for the
fees of an attorney employed by them in proceedings on their final accounting.
1871. IfygaU v. WUcox (45 N. Y. 806), VI, 90.

See JuDoicBNT; Limitation of Action.

BXEBiPTIONS.
1. Laws exempting homesteads from execution for debts " heretofore con-
tracted," are unconstitutionaL 1872. ffomeetead Caeee (22 Gratt Va.
XII,507.



Digitized by



Google



164 EXEMPTIONS— FEERT.

2. The homestead laws of North Carolina held oonetltatlonal as to prior
debts, as being restrictions oq former exemptions. 1878. Garrett v. Cheshire
(69 N. C. 896), Xn. 647.

3. Do not apply to State. Exemption laws do not apply to the State unless
by express words in the enactment. 1871. Oommomoealth v. Chok (8 Bush.
Ky. 220), Vm, 466.

4. An execution was issued on a judgment in favor of the State in an

action on a sheriff's bond. Held^ that the judgment debtors' homesteads were
not exempt under the homestead law. lb.

See Bankbuptct.

EXPRESS COMPANY— i^ Agbkot; Carbiebb.

EXTRADITION.

By the constitution of the United States, the Federal government has the
exclusive power to regulate, provide for and control the surrender of fugitives
from justice from foreign countries. Hence the provisions of the Revised
Statutes (1 R. S. 164, §$ 8-11) for such surrender are unconstitutional ; and a
warrant issued by the governor in pursuance thereof is void. 1872. People
V. ChirtU (60 N. T. 821), X, 488.

FACTOR— iS^AoBNCT; Bahkbuftot.

FALSE IMPRISONMENT.
In an action for false imprisonment, it is not necessary to allege in the com-
plaint that the imprisonment was malicious and without probable cause. 187L
CMt&r V. Lower (85 Ind. 286), IX, 786.



X



FALSE PRETENSES — )&« Pbaud.

FAMILY PHYSICIAN— /S^lNSUBANOB.

FENCE — See Railboadb.

FERRY.

1. Franchise not terminated by death of grantee. A ferry license, when
granted, becomes the property of the grantee, and is a private right, subje<^
only to the governmental control growing out of its other nature of publid
furis. When granted in an estate for years, the death of the grantee can no
more terminate it than the death of a tenant can terminate a like estate in
lands. 1869. Lippencott v. AUander (27 Iowa, 460), 1, 299.

2. A ferryman is responsible as insurer of all property committed to his
care ; but where the owner retains control of the property, the ferryman is
only responsible for due diligence. 1870. ffarvey v. Rose (26 Ark. 8), Vn,
595.

3. Plaintiff applied to cross a river with his wagon and a team of six

mules, at defendant's ferry. Defendant directed the front span of mules to be
detached from the wagon and left upon the bank until the next trip. As the



Digitized by



Google



FERRY— FIBE. 166

boat was about leaving the bank with the wagon and four mules, a servant of
a person crossing at the time, ftt plaintiff's request, brought the two mules
which had been detached and hitched to a stake on the bank, into the after
part of the boat, behind the wagon, and held them. One of the detached mules
fell overboard on the passage and was drowned. Held, that plaintiff was not
entitled to recover unless the cause of the loss was the omission of defendant,
after becoming aware of what plaintiff had done, to use a proper degree of care
to avoid the consequences. lb,

4. Ferrymen do not assume all the responsibility of common carriers.

Property carried upon a ferryboat, in the custody and control of the owner, a
passenger, is not at the sole risk either of the ferryman or of the owner. If
lost or damaged by the neglect of the ferryman, he must respond to the owner.
But the latter cannot recover if he is guilty of negligence on his part, contribu-
ting to the loss. 1878. Wyekoff v. Ths Queens County F&rry Go. (52 N. T.
82), XI, 650, and note, 656.

6. When the only possession and custody by a ferryman, of a horse

and carriage, is that which necessarily results from the owner's driving the
same on board the boat and paying the ferriage, the ferryman is not chargeable
with the full liabilities of a common carrier. lb.

6. In an action against a ferry company to recover the value of a horse

and carriage, alleged to have been lost through its negligence, the evidence
tended to show that the chain which was provided to be put up as a guard or
barrier at the end of the boat, to prevent casualties to horses, etc., was either
not up or was entirely insufficient for the purpose. Held, that if either fitct
was established, and the loss resulted from that cause, the defendant was
liable, lb,

7. Ftivate fory. One who keeps a ferry for his own use and for the ao-
oommodation of customers at his mill, but who charges no ferriage, is not
a common carrier. 1871. BeHf v. Dunn (42 Qa. 528), V, 544.

FIDUCIARY CHARACTER— 5^ Bankbuftot.

FIRE.

1. Action against one on whose pramises fire begins. The statute 6 Anne,
chap. 8, § 6, providing that " no action shall be maintained against any person
in whose house or chamber any fire shall accidentally begin," is part of the com-
mon law of this country; otherwise of the statute 14 Geo. Ill, chap 78, § 86,
which exempts from liability persons '* in whose house, chamber, stable, bam
or other building, or on whoee estate any fire shall accidentally begin." 1873.
Bpaulding v. Chicago and Northwestern Railway Company (80 Wis. 110), XI, 550.

2. Severing fire hose. The servants of a railroad company ran over and
severed a hose laid across the railroad track to supply water to extinguish a
fire in plaintiffs house. As a probable result of such act plaintiff's house was
destroyed. HM, that the company was liable. 1872. Metdmc Oompreaion
Co. V. FUehburg B, R Co. (109 Mass. 277), Xn, 689.

See Nbolioknob.



Digitized by



Google



166 FISHW AT — FIXTTTBES.

FIRE OOMMUNICATED BY NEGLIGENCE— /Sm Ntoliqenob.
FIREMEN — 8ee MxmiciPAL (Jobfobation.

FISHWAT

1. Bwy leglslatiTe grant of a right to maintain a dam across a stream where
fish are accustomed to pass is subject to the condition that a sufficient way
shall be allowed for the fish, unless, by express provision or obvious implica-
tion in the grant, the maintenance of a fish way is dispensed with. 1870. Com-
mi99io7Mr$ v. Edyoke Water Patcer Company (104 Mass. 446), VI, 247.

2. The maintenance of dams without fishways in an unnavigable river,
which is the outlet to a large inland lake, thereby obstructing the passage of
migratory fish from the sea to the lake, constitutes an indictable ofiense at
oonunon law. 1870. Stats v. Franklin Falls Company et al. (49 N. H. d40),
VI, 618.

3. No light will be acquired as against the State by the obstruction of a
public fishery, though continued for more than twenty years under a claim of
right, if such obstruction in fact originated without right. Ih.

See Constitutional Law.

FIXTURES.
I
L How determined. The question of fixture does not depend upon whether

or not the foundation is let into the soU, but in the nature and character of the

act by which the structure is put in place, the policy of the law connected with

its purpose, and the intentions of those concerned in the act. 18fi9. Msiff^

Afpsai (62 Penn. St. 28), 1, 872.

2. Buildings erected by the goremment for war purposes. The United
States erected in the borough of York, upon ground dedicated as a public com-
mon, buildings for use during the war. HMt that the circumstances showed
that these buildings were intended for temporary use and not as permanent
structures, and that the borough, by lying by and suffering them to be erected
upon a public common, where, as permanent structures, they would be nui-
sances, is estopped from declaring that the United States intended to annex
their chattels to the freehold. lb,

9. Machinery in machine shop. The owner of a machine shop gave a chat-
tel mortgage on the machinery therein, before it was set up, but in contempla-
tion that it should be set up and attached to the building. He afterward, and
after it was set up, gave a mortgage on the land and building. Hdd, that the
second mortgagee could hold the machinery against the first mortgagee. 1871.
Pi§rcs V. Gscrgs (108 Mass. 78), XI, 810, and noU, 814

4. A mortgage of a machine shop covers machines, pulleys and shaft-
ing, bolted or screwed to the building, or to blocks bolted to the building : also
essential parts of the machinery, although they can be detached therefrom
without injury. But it does not cover machines which are not fastened to the
fioor, but are supported by their own weight ; nor machines which are fastened



Digitized by



Google



FIXTUEES — FOBGBBY. 167

to benches, although ran from the Bhafting ; nor vises screwed to benches
although the benches are nailed to the building. Jb,

6. Portable hot^dr famaoes used for warming a dwelling-house, set in pits
prepared for them in the cellar, and kept in place by their own weight, are
part of the realtj; as also are the pipes leading from the furnaces to the chim-
ney. 1872. 8U>eku)eUY,CfcmpbeU(9» Conn. m2),JJl,9&9.

6. Railroad bridges. Where a railroad company entered upon lands, having
acquired the right of way, and built thereon stone piers and abutments for a
bridge, and subsequently abandoned that portion of its road, held, that the piers
and abutments were not fixtures, and did not pass to the land owner. 1872.
Wagn&r ▼. Clweiand, etc., B. R Oo. (22 Ohio St. 568), X, 770.

7. The zoUing stook of a railroad company is personal property. 1878.
BandaU v. mweU (62 N. Y. 621), XI, 747, eontra, note, 751.

8. Cotton gin-stand. As between the vendor and vendee of lands used in
growing cotton, a cotton gin-stand, put up after the usual manner for use on
the place, is a fixture, and passes with the land. 1868. lUehardicm v. Borden
(42 Miss. 71), n, 605.

9. A tenant at will removed a substantially constracted house from another
place, on to the land of which he was a tenant, put it upon a stone foundation,
with a cellar under it, without the land owner's consent, or any contract that
the tenant should hold it as personal property. BM, that it became a part of
the realty, and could not afterward become personal property by the mors
assent of the land owner without an actual severance of it from the land. 4871.
Madigan v. McCarthy (108 Mass. 876), XI, 871.

FOREIGN JUDGMENT— /8^ JuDeiCBNTB.

FOREIGN LAW— /S^BviDBNCfB.

FORFEITURE.
A forfeiture without notice to the owner of the property, and without an
opportunity of being heard on the question of the owner's culpability, is con«
trary to the provision in the bill of rights, that no one shall be deprived of his
property unless by the judgment of his peers, or the laws of the land. 1870
Oraig v. EUne (65 Penn. St. 899), III, 686.

FORGERY.
L What ib— IUtijication.

n. RSOOYSBT OF MOmST PAID ON — Aitf BAHKS AND BaNXINO.

III. Dkfbnbb of— iSM Bills and Notbs.

I. What is — Ratification.
1. Dstaohment of condition from note. The fraudulent detachment of a
condition, made at the same time and on the same paper, from a promissory
note, is forgery. 1869. State v. Stratum (27 Iowa, 420), 1, 282.



Digitized by



Google



168 FORGERY — FRAUD.

2. Forged ohaok — ratifioatioii. In thia caee, the eTidenoe bIiowb that ptaui-
tiff kept a bank account with defendant ; that the book-keeper of plaintiff kept
the cash account, made the deposits, etc, and that his relations toward the
plaintiff were well understood in the hank ; that the book-keeper of plaintiff
drew a check on the bank for (3,600,) to which he forged plaintiff's signa-
ture, which was an amount above the account to the credit of plaintiff in the
bank ; that notice was given hy the bank that plaintiff had overdrawn his
account, who, on being shown the check for (S/KK), said he had not signed it,
but did not say that it was a forgery. On seeing his book-keeper, he reported
back to the bank that it was all right. Subsequently the book-keeper drew
another check on the bank for $1,700, and again forged the signature of the
plaintiff thereto, which the bank paid on t>resentation. On discovering the
second forgery by the book-keeper, six months after the first, plaintiff denounced
the act. EM, that the act of the plaintiff, in ratifying the first act of forgery
made by his book keeper, exonerated the bank from all liability for having
paid it ; that his afterward keeping the book-keeper in his confidential employ
misled the bank and threw it off its guard ; that, having approved and ratified
the first forgery, the bank was excused for paying subsequent checks similarly
drawn ; that the plaintiff had by his own acts caused the injury, and he must
therefore bear the loss. 1871. De Feriet v. Bank of Am&rica (28 La. An.
810), Vm, 597.

3. One whose name has been forged to a bond cannot ratify the act so as to
bind himself, without a new consideration. MeEugh v. County of'SohujflkiU
(67 Penn. St. 891), V, 445, and note, 447.

FORGED DEED— See Estoppel.

FORMER ACQUITTAL — /8^ Criminal Law.

FRAUD.

1. False representations as to matters material to a contract, and upon which
the party to whom they are made relies to his damage, constitute a defense to
an action upon the contract, although their falsity was unknown to the party
making them. 1871. Fr&nttel v. Miller (87 Ind. 1), X, ^.

X To sustain a defense of fraudulent representation it is insuffident to

show that the representations made were simply false. Fraudulent intent in
the party making them must be shown. 1871. Orinoold v. Sabin (51 N. H.
167), XII, 76.

3. Blisrepresentation by ▼sudor as to quantity of land. A vendor of land*
to induce the sale, stated the quantity cu of hie own knowledge, and the vendee
relying on such statement, purchased. The statement was untrue, though
believed by the vendor to be true. EM, that the vendor, in representing as a
fact that as to which he only had a belief, was guilty of fraud, and liable to
the vendee for the damage sustained. 1869. Cabot v. Chrietie (42 Vt 121),
1, 818.



Digitized by



Google



FRAUD, 169

4. tti to price paid. Fraadolent niisrepresentatioziB of ayendor of real

estate as to the price which he paid therefor are not actionable. 1872. Hd-
brook y. Connor (60 Me. 578), XI, 212, and note, 218.

6. Fraadolent oonTe3ranoei Plaintiff and defendant entered into an arrange-
ment whereby plaintiff, for the parpoae of defrauding his creditors, was to con-
vey to defendant, without consideration, a certain tract of land, defendant
agreeing to reconvey the same on request. By the fraud of defendant and
without the knowledge of plaintiff, the deed was made to include certain other
land of plaintiff. In a suit to cancel the deed for fraud and mistake, Jield, that
the deed should be set aside as to the land included through defendant's fraud.
1871. ClemeM v. OlemenB (28 Wis. 687), IX, 520.

6. A fraudulent grantee of land conveyed it to a bona fide purchaser for value ,
without notice of the fraud, after a creditor of the fraudulent grantor had
obtained a judgment against him, but before the land was sold under an exe-
cution issued on such judgment and tested of the term where it was obtained.
Held, that the title of the bona fide purchaser from the fraudulent grantee was
to be preferred to that of the purchaser under the execution of the creditor of
the fraudulent grantor. 1872. Toung v. Lathrop (67 N. C. 68), XII, 608.

7. As to orediton. The sale upon credit, at a fair price, to a responsible
vendee, of the entire effects of an insolvent copartnership, is not per ee fraudu-
lent as to creditors, although the vendee has knowledge of the insolvency.
There is a distinction in this respect between a sale and an assignment. In the
case of a sale there is a consideration passing to the vendor from the vendee,
who becomes the owner of the property in his own right ; and the vendor,
while parting with the property, obtains the purchase*money, which, whether
paid in cash or in notes, Is liable to the claims of creditors, and can be reached
by an appropriate action. And, although such a sale may be made on the pan
of the vendor with the intent to " hinder, delay or defraud his creditors," the
titJe of the vendee is not affected thereby, unless he had previous notice or
knowledge of the fraudulent intention of the vendor. 1871. Buhl v. PkilUpe
(48 N. Y. 125), Vm, 522.

8. In proonrlng emeo uU on of bond. An illiterate man signed a paper, which
was falsely represented to be a petition, but which was really a bond. Held^
that he was not liable thereon, the plea of nan est factum being good, although
the obligee was not aware of the fraud, before accepting the bond. 1871.
SehuyUciU County v. Copley (67 Penn. St. 886), V. 441. See Bills aito Notes.

9. The director of a company is not liable for representations, false in fact
but not known by him to be so, made in published circulars Of the company on
which his name appears only as one of the list of directors. 1872. Wakeman
V. DaiUy (61 N. Y. 27), X, 551.

10. Bridenoe of oontemporaneons frauds. In replevin of goods alleged to
have been procured by the defendant of the plaintiff, on credit, by means of
false and fraudulent representations as to his pecuniary condition, and also
with intent not to pay for them. Held, that evidence of another act of fraud
eommitted, about the same time, by the defendant, was not admissible to prove
the fraud charged, unless there was evidence that the two were parts of one

22



Digitized by



Google



170 FRAUD- GIFT.

icheme of fraud committed in paraaanoe of a common purpose. 1873. Jordan
V. O$good (109 Mass. 457), XII, 781.

11. HMy also, that the books of the bank, where the defendant kept

his deposit, supported by the oath of the book-keeper, were admissible to show
what money he had in the bank at the time, lb,

12. Pleading. Where the complaint in an action is for ^fraud, the plain-
tiff cannot recover for a breach of contract. 1872. Bon ▼. Mather (51 N. Y.
108), X, 563.

866 Ck>NYETANOB ; JUBIBDICTIOK ; RBOOUPKHNT.

FRAUD (Statuth of)— iSsd Statutb <» Frauds.

FRAUDULENT REPRESENTATIONS— /8^ Payment.

FRUIT — 866 Real Bbtatb.

NAMING— 866 Bbttdcoahd G amino.

GENERAL AVERAGE— iS^ Ships A2n> SHippora.

GIFT.

1. Oausa mortis. The requisites of a gift cofusa mortU are : 1. It must be
made with a yiew to donor's death from present illness or from external and
apprehended peril ; 3. The donor must die of that ailment or peril ; 8. There
must be a delivery. 1873. Orym68 ▼. Son6 (49 N. T. 17), X, 818.

2. The defendant's testator, being about eighty years of age and in

failing health, made an absolute assignment of twenty shares of bank stock to
his grand-daughter, and handed the assignment to his wife, with instructions to
give it to his grand-daughter in case of his death. Five months after he died.
Held, (1) that it was a valid gift causa mortis; and (3) that the court could en-
force it, notwithstanding the fact tliat the stock had not been transferred upon
the books of the bank. lb.

3. A gift *' causa mortis " cannot be sustained when there has been no

delivery of the subject of the gift so claimed, although at the time it was
sought to be made, it was out of the reach of the would-be donor, so that the
delivery was impossible. 1868. Cass v. Denmson (9 R. I. 88), XI, 333.

4. Plaintiffs intestate entered the military service during the late war,

and just before starting for the army, said to defendant, to whom he had loaned
a gun, '^ If I never return, you may keep the gun as a present from me." He
never returned, but died in the service. In an action, by his administrator,
to recover the gun, hsLd, that the facts did not constitute a gift, ^ther inkir
vivos or coma mortis, 1873. 8mith v. Dorssy (88 Ind. 451), X, 118.

6. Of saivlngs bank-book. N. gave his savings bank-book to C, with aai
intention to give him the deposits represented by the book. HM, that this
was a valid gift to C. of the deposits. 1869. Camf^s Apfoat (86 Oona. 88),
IV, 89.



Digitized by



Google



GIFT — GOOD-WILL. 171

6. The deli^erj of a sayingB bank pmsd-book contaiiiliig the entries by

ihe officers of the bank of the moneys deposited bj a deceased wife, with a
parol gift of the same bj surviving husband when in Mtremii, is a valid donatio
cau$a morttB of the money deposited in the bank. 1867. TUUnghaH v. WTuaton
(8 R. I. 586). V, 621.

7. The daolaration of an Intcntioii to give, followed by delivery of the sub-
ject-matter of the intended gift to a bailee, for the benefit of the donee, con-
stitutes a perfected gift. 1860. G^ordrMT V. JTarriM (82 Md. 78), m, 115.

8. A grand-mother of several grand-children having stated that " she

was going to put money in the bank for her grand-children/' deposited various
sums of money in the savings bank to the credit of the grand-children, and, in
accordance with the by-laws of the bank relative to deposits by parents and
guardians, caused them to be made subject to her own order, or that of her
daughter. On the death of the grand-uiother, her own daughter became exec-
utrix of the estate, and withdrew said sums of money from the savings bank
and administered them as part of the estate. In a suit to obtain an accountings
of the moneys so withdrawn and administered, hM, tha^ the deposits were
perfected gifts, only liable to be withdrawn for the exclusive benefit of the
donees, the grand-children, lb.

See VOLUHTABT Agrbbmbmt.

eOLD CONTRACTS.

1. Aooeptliig payment under protest The holders of certain gold warrants
accepted payment thereof in treasury notes under protest, and surrendered the
warrants. Held, that the payees could not afterward recover the difference
between the value of the notes and gold coin. 1870. CHlman v. County oj
Douglae (6 Nev. 27), HI, 287.

2. A promissory note exeontad sabseqnant to the passage of the legal ten-
der act of congress of 1862, payable, in terms, in American gold, is not dis-
charged by a tender of United States treasury notes. 1870. McGoon v. Skkrk
(54 m. 408), V, 122.

3. Pa3rment of In legal tend«r notes. A promissory note payable in " gold
coin or the equivalent thereof, in United States legal tender notes,'' is com-
pletely discliarged by a payment in legal tender notes, dollar for dollar. 1870.
KiUough V. Alford (82 Tex. 457), V, 249.

4. Judgment on gold oontraot In an action on a promissory note, payable
in gold or silver, the judgment, in case of recovery, must be for coin to the
amount found due on the note and interest. The judgment for costs
must be general, so that it may be satisfied by payments of either kind of
Uwful money. 1871. PMUipe v. Dugcm (21 Ohio St. 466) VIU, 66.

See Lboal Tkndbb Aot; State Bokds.

GOODS — iS^ Salb.

GOODWILL— £to Pabtnsbship.



Digitized by



Google



172 GOVERNOR — GUAEDIAN AND WARD.

OOVERNOR.

1. Bfandamns agalnit. Courts have no jurisdiction to iBsne & mandamiis to
compel a governor to perform an act required of him bj law. 1870. State t.
Warmoth (23 La. An. 1). U, 712; Mauran v. Smith (8 R. L 192), V, 664. and
note, 572.

2. Where a bill has become a law by reason of the failure of the gov

ernor to return it with his objections to the legislature within the prescribed



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 22 of 51)