Imágenes de páginas


COURT OF APPEALS ABSTRACT. "Goodtitle v. Tombs" is the name of a case in 3

SEPTEMBER DECISIONS, 1871. Wils. 118. Perhaps few things can be mentioned which

AGENCY. it is as well to have a good title against as — - tombs.

1. Claims for recruiting against supervisors: liability

of public agent. The Livingston county board of superA defendant, in a writ, was lately described as “now

visors, acting under authority of the act of 1864 (ch. 8, cormorant in said town,” “upon what meat does this laws of 1864), relating to raising money to pay bounties, our carriers, etc.

etc., passed a resolution appointing each supervisor

“ recruiting and disbursing agent” for his own town, Here is a newspaper clipping which has the taste of in order to procure volunteers to fill the quota required "London stout.” We are compelled to believe, how from such town, and authorized him to draw the requiever, it would hardly be accepted as authority in the site moneys for such purpose from the county treasury. court: "A London cabman has lately recovered dam- The defendant, who was a supervisor, in order to fill ages from a woman who delayed his business by being

the quota of his own town, employed the plaintiff, and too fat to get into his cab.”

agreed that he should receive $25 for each recruit he

might procure. This action was brought against the By the way, speaking of newspaper clippings, what defendant personally for the sum agreed to be paid. interesting items are constantly going the rounds, Held, that it was within the scope of the authority claiming to set forth something of a legal character, conferred upon the defendant to bind the county by a which is only too absurd upon its face. Here is one of contract with the plaintiff for his services in procurthe latest, which, as usual, is located far enough west

ing enlistments. Hall v. Lauderdale. Opinion by to give it, as some think, plausibility: “A man was Andrews, J. brought before an Illinois magistrate and fined $6.50 2. Where, in making a contract, the agency is disfor being drunk. He smiled blandly, and, drawing out closed, and the contract relates to the matter of the a dollar bill, said: 'All right, Mister Magistrate; I sup

agency, and is within the authority conferred, the pose you remember when I sold out my saloon in

agent will not be personally bound, unless upon clear Pekin I had $5.50 on the slate against you. With thi

and explicit evidence of an intention to substitute or dollar that will exactly pay my fine. You must excuse to superadd his personal liability for, or to that of, his me, 'squire, for this little spree of mine: but I didn't

principal, and, when the agent is acting as a public one, see any other way of collecting my bill against you much stronger evidence is required to rebut the prethan this.' Exit inebriate. Audible smiles among the

sumption that the parties did not contemplate the audience." We have heard of wilder attacks upon the

personal liability of the agent. Ib. doctrine of probabilities.

3. The agent does not warrant the capacity of his

principal to contract. If he acts within his instrucWe are told that the State of New Hampshire once tions and in good faith, especially when the facts are had a librarian of the State library who was not versed equally known to both parties, he is not personally resin books, except the almanac, and, we hope, the family ponsible, although it may happen that the authority Bible. He was, however, exceedingly anxious to make itself is void. Ib. what little he did know about them go a good ways, 4. The mere fact that the defendant had in his hands and was officious to appear thoroughly at home in the moneys belonging to the county did not render him duties of his office. His chief work was only to have liable to the plaintiff. The title to the money remained the room swept and to watch that no honorable gentle in the county, and it could at any time compel defendman stole any thing from the shelves.

ant to account for it. Ib. One day a senator came in and inquired, in a great hurry, for “Jefferson's Notes."

See Contracts. "Ah, yes, exactly, let's see if we have it;” and he darted about from one shelf to another, with extraordinary animation and bustle, but with no success whatever. He came back, shaking his head, and ex

1. Forged check: liability of drawees paying same. pressed his regret that they did not seem to have any

- The plaintiffs, a banking company, were the drawees thing of the kind. “The fact is, my friend, I rather

of certain checks, in which checks the genuine signa

ture of the drawer and the amounts had been erased think, Mr. Jefferson must have taken up those notes before he died.”

and rewritten, and the checks filled out for a larger amount. The checks were received from the defend

ants and paid by plaintiff. Held, that the erasure of Mr. Tappan, an old gentleman, speaking of the im

the genuine signature of the drawer from the check provement of manners in New England and the coun

totally destroyed it, and the re-insertion of his name try at large, remarks: “The late Governor Strong, of

was a forgery, whether the check was for the same or Massachusetts, informed my father that at a dinner

a different amount. National Park Bank v. Vinth given at his house in Boston by John Hancock, then

National Bank. Opinion by Allen, J. governor of the State, a remark was made by the host

2. It has been for more than a century settled that that induced the ladies to rise and leave the room,

the drawer of a bill is presumed to know the handamidst a roar of laughter from the gentlemen left

writing of his correspondent, and, if he accepts or pays behind;" and goes on to make an allegation which

a bill to which the drawer's name has been forged, he certainly to-day is not a just subject of complaint:

is bound by the act, and can neither repudiate the “Sixty or seventy years ago I heard lawyers, eminent

acceptance or recover the money paid. Ib. for their talents and social position, use language in court, in presence of female witnesses, that would be deemed intolerable at the present day.

See Contracts.





State.— The defendant was a stockholder in a bank in 1. For sale of corporate stock: refusal to deliver :

the State of Georgia. By the charter of the bank granted tender. — Under a contract for the sale of stock, where by act of legislature, it was provided that none but the seller is to hold the stock for the benefit of the pur

citizens of Georgia should subscribe for, own, or purchaser until a future time, and the purchaser is to pay

chase stock in the bank; that the private or individual interest on the amount due, the purchaser has a right property of each stockholder should be liable for the to all dividends declared on the stock after the sale redemption of the bills, etc., and, also, that the liaand before delivery. Currie v. White. Opinion by bility should be enforced and the property of stockRapallo, J.

holders subjected to payment of debts of the bank by 2. Where the plaintiff, having an option as to the an execution upon a judgment against the bank. Protime of the delivery of certain stock he had purchased,

vision was also made for the use of the same process to offered the defendant, in writing, to take and pay for do equity between the stockholders, and compel a the stock and demanded the dividends thereon, the ratable contribution, Held, that the charter having taking away of the written offer and the stock by the made the property of the stockholders liable on a defendant and not returning them was equivalent to a

judgment and execution against the bank, and in no refusal to perform the contract. A tender of money

other way, an independent action would not lie in was not necessary. A readiness to pay was sufficient,

Georgia against the stockholders, for the reason that and, by failing to respond to the offer, the defendant an adequate remedy was provided without action, dispensed with the necessity of a formal tender. Ib. and as an action would not lie there, it cannot be 3. Construction of: organization of stock company.

maintained elsewhere. Lowry v. Seaman. Opinion by The plaintiff agreed to convey his farm to defendant,

Allen, J. and was to receive as part of the consideration $3,000

6. The insertion in a bank bill of the words “indiin cash, $1,000 was to be paid within a few days after

vidual property of stockholder liable” does not the delivery of plaintiff's deed, and $2,000 when a cer

change the liability which the stockholder incurs tain company, which was to work a peat bed on the

under the terms of the charter of the bank. Every farm, should be organized. Held, that the deed having person dealing with the corporation, or receiving its been delivered, the organization of a company was not obligations, is supposed to be cognizant with the proa condition precedent to the defendants being obli

visions of its charter. Ib. gated to pay but a designation of a time when the obli

See Agency, gation already fully incurred should be enforceable; that the parties did not mean that the time of payment

FORGERY. should not arrive until there should be a corporate

See Bills and Notes. organization in accordance with the statute, but when

GUARANTY. there were such acts and doings among the associates as should form or set on foot in practical existence a Release of surety by change in terms of agreement. — body in which they should have rights and owe obliga The defendant guaranteed that B. and S. should tions. And the signing of a certificate of incorpora receive and pay $2,000 for a steam engine of a certain tion, election of officers, making of by-laws, and estab build and stroke, two cylinder boilers each thirty feet lishing a place of business, is a sufficient organization long, etc. By the subsequent agreement of the parties, to make payable the $2,000. Childs v. Smith. Opinion

without the assent of the surety, an engine with three by Folger, J.

cylinder boilers and of greater capacity and power 4. For sale of real estate: specific performance. — The was substituted, and an additional price agreed to be plaintiff purchased at auction certain real estate be paid. Held, that the new agreement released the surety longing to one of the defendants. The auctioneer and from all liability. He guaranteed the payment of plaintiff signed a contract of sale, plaintiff paid ten $2,000, for specified property, but did not agree to per cent of the purchase-money, and agreed to pay the pay that sum as a part of the purchase price of a differbalance at the office of the defendant's attorney, at a

ent article. Grant v. Smith. Opinion by Allen, J. certain hour upon a subsequent day, where the deeds

HUSBAND AND WIFE. would be ready for the delivery. A few moments before the time agreed, plaintiff called at the place of

1. Dealings between, as to wife's property.— Where the payment and tendered his check for the amount due.

husband, who has received certain personal property The check was refused, on the ground that it was not

from his wife, carries on business upon her real estate, certified, and plaintiff left to get it certified, defend

and makes certain expenditures thereon, necessary for ant's attorney informing him that he would be in the

the benefit of the business, his creditors can only comoffice all day. At a subsequent hour, plaintiff called

plain of such expenditures if they exceed in amount with the certified check, when the attorney refused to

the value of the personal estate received from his wife, complete the bargain, on the ground that the stipulated after paying existing liabilities. Hamilton v. Douglass. hour for so doing had already passed. This action was

Opinion by Church, C. J. brought for the purpose of enforcing specific perform

2. Formerly, the husband had the legal right to take ance. Held, that plaintiff was entitled to such relief;

possession of the personal estate of his wife and approthat no objection having been made to the completion

priate it to his own use, and there is nothing to prevent of the sale, except the non-certification of the check,

his doing so now, with her consent, express or imand an extension of time for the purpose of certifica

plied. Ib.

MUNICIPAL CORPORATIONS. tion having been acquiesced in by defendant's agent, defendant was precluded from raising the objection 1. New York city: neglect to publish reports as required that it was too late to complete the contract when the by law : void assessments.— The seventh section of the certified check was tendered. Duffy v. O'Donovan. act to amend the charter of the city of New York Opinion by Allen, J.

(Laws of 1857, chap. 416), which provides that "all 5. Liability of bank stockholders : laws of another reports of committees which shall recommend any


specific improvement, involving the appropriation of ment roll made two years since, this court will not, as public money, or taxing or assessing the citizens of the they may, under the act of 1871 (

), remand city, shall be published immediately after the adjourn the proceedings to the county judge for correction, but ment of the board, under the authority of the board, will reverse. Ib. in all the newspapers employed by the corporation, and

TAXATION. See Railroads; also Municipal Corporshall not be passed until after notice has been pub

ations. lished, at least, two days," is not directory, but mandatory, and compliance therewith is essential to the

TOWNS. See Railroads. legal exercise, by the corporate authorities, of the power to authorize and direct local improvements or to subject the property of the citizens to taxation. DIGEST OF RECENT AMERICAN DECISIONS. Petition of Douglass to vacate assessment. Opinion by


2. Accordingly where a resolution for grading Sixtyfourth street, in New York city, was published in but 1. Taking judgment by confession from his client. two of the four papers which were designated, under Where an attorney agrees to prosecute an action of the law, as in which city advertisements should be ejectment, in the name of his client, to final judgment, inserted, all of which were employed by the corpora and to put him in possession of the property, for a tion council for advertising purposes, the passage of specified sum, and takes a judgment against his client, such resolution was in violation of law, and void. Ib. by confession, to receive the payment of the sum men

tioned, but, before trial of the ejectment suit, the parNEGLIGENCE.

ties thereto compromise their differences, the attorney 1. Liability of master for wrongful act of servant. cannot enforce his judgment for the full amount; the A conductor in the employ of the defendants, and in work contracted for not having been performed in full. charge of one of their street cars, ejected the plaintiff,

Carey v. Grant. a passenger, who was disorderly, from the car. In so 2. But as such a judgment is, at any rate, security doing he used unnecessary force, whereby the plaintiff

for whatever sum is due to the plaintiff, it is not proper was injured. Held, that the defendants were liable for

to set it aside. Proceedings under it will be stayed, the injury. Higgins v. Wa ervliet H. R. R. Co. Opin- | however, until the amount due to the plaintiff shall be ion by Andrews, J.

ascertained, either by a reference or in an action upon 2. A master's liability for negligence or tort of his the agreement. Ib.

CERTIORARI. servant does not depend upon the existence of an authority to do the particular act from which the Under the common-law writ of certiorari, courts injury resulted. The master is responsible, civiliter, if have always reviewed and examined the acts, proceedthe wrongful act of the servant is committed in the ings and determinations of the inferior tribunals or business of the master, and within the scope of his

bodies to whom the writ was sent, so far as to see employment, and this although the servant, in doing

whether they had kept within their powers, or within it, departed from the instructions of his master. Ib.

the law under which they acted, in the matter com

plained of. If they have acted contrary to their powRAILWAYS,

ers, altogether, or exceeded them in any material 1. Bonding towns for: what necessary to give jurisdic- particular, the writ furnishes a sufficient ground for tion to county judge: rights of tax payers. — The author the reversal of their acts or determinations. The Peoity of a majority of the tax payers of a town to mort- | ple ex rel. The Erie and Genesee Valley R. R. Co. v. gage the whole property of its citizens against the will Tubbs et al.

COMPLAINT. of the minority, for the purpose of investinent in a railroad or other corporation, is derived solely from 1. Joinder of causes of action. — Causes of action for legislative enactment, and has no countenance in the deceit in the sale of a canal boat and horses by the deprinciples of the common law. People ex rel. White v. fendant to the plaintiff, and for taking certain personal Merrill. Opinion by Church, C. J.

property of the plaintiff's from such canal boat, and 2. When private property is sought to be affected converting the same, may, under subdivision 3 of secunder statutory proceedings, every step required to tion 107 of the code, be united in the same complaint. confer the power must be shown to have been taken in Cleveland v. Barrows. strict conformity to the statute. This principle is ap 2. Fraud belongs to the class of injuries denominated plicable in this class of cases. People v. Smith, 4 Alb. injuries to property. And such having been the estabLaw J. 64. Ib.

lished legal definition and classification of frauds prior 3. It is incumbent upon the petitioners, under the to the code, it is to be presumed that it was intended act in question, to show, by legal evidence before the to be, and was, embraced in the classification of “incounty judge, that a majority of the tax payers of the juries to property,” in subdivision 3 of section 167 of town owning or representing a majority of the taxable the code, when adopted by the legislature. Ib. property upon the last assessment roll signed the petition for bonding the town, as a condition precedent to the appointment of commissioners. Ib.

1. Judgment against: conclusiveness upon stockhold4. The power must be exercised by the tax payer him

ers. — The settled principle is, that a creditor, having self. He must either be present when his name is

once established his claim against a corporation, by signed, or the authority to sign must be in writing. Ib.

judgment, shall not be compelled, in seeking a remedy 5. Where the tax payer does not so sign the petition, against stockholders or trustees, to re-establish the he does not waive his rights by neglecting to appear at

fact of original indebtedness. Jliller v. White et ul. the hearing before the county judge. Ib.

* From Hon. O. L. Barbour, and to appear in vol. 53 of his 6. Where the proceedings were founded on an assess reports.


arising from the fact that the premises were out of repair. Ib.


2. The judgment a creditor obtains against a corporation may be impeached for fraud or collusion, but not otherwise. And both stockholder and trustee may relinquish their positions and escape liability for future obligations; but they cannot thereby change the course of proceedings, or the rules of evidence, or their liability, as to obligations previously incurred by the corporation. Ib.

3. Liability of stockholders. — Where the omission of a corporation to make the report required by law, and the trusteeship of the defendants were concurrent in point of time, and the plaintiff's claim, for which he had previously recovered judgment against the corporation, accrued while the defendants were trustees, held, that the plaintiff was entitled to recover of the defendants the amount of such former judgment. Ib.

1. Actions by and against.—Where a husband absconds from his wife and family, ceases to provide for them, and, so far as he can, renounces his marital relations, and goes to California, where he has ever since remained, this is equivalent to abjuring the realm, by a husband, at common law: so as to enable the wife to sue and be sued as a feme sole. Osborn v. Nelson,

2. A claim for the services of her infant son, which has been assigned to her, is the separate estate of the wife, in such a case; and, under our statutes for the better protection of the rights of married women, it is competent for her to maintain an action for the recoyery thereof, in her own name. Ib.

3. Without any reference to the question whether the plaintiff in such an action is, under the circumstances, entitled to the services of her minor son, as her child and servant, the fact that she is assigned of the claim is enough to enable her to maintain the action in her own name and right. Ib.



In cases of negligence, corsisting of mere omission of duty, where no affirmative fault, misfeasance or affirmative wrong was committed by the defendant, or is imputed to him, it is essential, to sustain a recovery, to establish that the defendant owed some clear, specific legal duty to the party injured, which was violated. O'Brien v. Casswell.


1. Books of account. — In an action for goods sold and delivered, and to recover the balance of an account, daybooks and books of original entries, not kept by the plaintiffs themselves, but by book-keepers employed for that purpose, and who did not make the sales charged by them, but only entered the sales reported to them by the salesmen, are not admissible in evidence for the purpose of proving the entries of sales, on proof of handwriting; which sales are not remembered by the persons making the same, and where the sales have not been proven apart from the books. Gould v. Conway.

2. Such books, as books of account, are incompetent witnesses for any purpose. Of themselves, they can neither prove nor tend to prove any thing. The entries, being all made by third persons, are mere written statements of others no better than hearsay. Ib.

3. Nor can such entries be properly received in evidence as original memoranda, to aid in establishing the defendant's indebtedness. Ib.

4. Yet it seems that in such a case if it appears that the salesman who reported a sale saw the charge made by the book-keeper, and knew then that it was correctly made, it may be introduced as a memorandum in connection with the testimony of the salesman, either with or without the testimony of the book-keeper, the salesman having forgotten the fact that such sale was made by him. Ib.

JUSTICES' COURTS. Pleadings. — Greater latitude of construction is always allowable in regard to pleadings in actions commenced in justices' courts, than in actions commenced in courts of record. Osborn v. Nelson.

Setting aside judgments. — Where a judgment was recovered against the defendant after his death, every step in the cause, except the service of the summons three years before, having been taken after the defendant was dead, the judgment was set aside, on motion, by his administrator. Livingston v. Rendall.



1. Duty of landlord to repair. — As between landlord and tenant the law is well settled when there is no fraud or false representations or deceit, and in the absence of an express warranty or covenant to repair, that there is no implied covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use. O'Brien v. Casswell.

2. Liabilily of landlord for injuries accruing from want of repairs. — When a lessor is under no obligation to repair the premises, and their condition is equally as well known to the tenant as to him, there is no basis for an action against him for negligence, by the tenant or any servant of his or person standing in his place

1. Made in consideration of marriage. — A promissory note given by a man to a woman, in consideration of her promise to marry him, is made upon and for a sufficient and valuable consideration. Wright v.Wright.

2. How affected by marriage of parties. — The subsequent marriage of the parties will not affect or destroy such a note. It is a contract to pay, made in contemplation of marriage, and by force of the statute (laws of 1849, ch. 379) remains in full force after the marriage. Ib.

3. It seems the payee can sue upon such note at law. But, whether she can or not, the supreme court, having the case before it, in an action on the law side, showing that the note was the wife's separate property, ought, in some shape, to apply a remedy. Ib.

4. Nature of indorser's engagement. - An indorser's engagement is a conditional one, to be made absolute upon the observance of such formula as are prescribed by law, unless waived or rendered unnecessary by facts and circumstances attending the maturity, demand and refusal of payment, recognized by commercial law. Harden v. Boyce.

5. Notice of protest during a civil war. – Where a promissory note, payable in the city of New York, matured during the civil war, there being no pretense that notice of dishonor had been waived or was unnecessary, it was held that an indorser residing in the State of South Carolina was entitled to notice; but that the


holder was under no obligation to send it as long as the the enemies of the other and all its citizens or subjects. impediment occasioned by war existed. Ib.

Harden v. Boyce. 6. That it was his duty, however, to send it when the 3. These results of war inter gentes were substantially interruption of intercourse ceased. Ib.

applied to the citizens of the Confederate States during 7. That it was not a sufficient performance of his the late conflict. Ib. duty to the indorser to deposit in the post-office at 4. In the late rebellion there existed, between the New York a notice of protest addressed to him at his governments of the United States and the Confederate residence in Greenville, South Carolina, on the 4th of States, a state of civil war, in the sense of international October, 1861, when open war prevailed between the law, which brought with it the common incidents of government of the United States and the Confederate war, and arrested all commercial intercourse and comStates, and there was no longer any actual mail com munication between the citizens of those States remunication between New York and South Carolina, spectively. Ib. and all intercourse or communication between the

See Promissory Notes. citizens of those States, respectively, was unlawful and prohibited. Ib.

8. And that the holder, when he deposited such 1. Rights and liabilities of land owners in respect notice, did not put it in such a course of transportation

thereto. - It is well settled that every person, through and delivery as would accomplish the duty imposed on

whose land a stream of water flows, may construct him by law. Ib.

embankments and other guards on the bank to pre

vent the stream washing the bank away and overflowRAILROADS.

ing and injuring his land. But in doing this he must 1. Application for appointment of commissioners. be careful so to construct them as not to throw the No person is authorized to apply to a justice of the water upon his neighbor's lands, where it would not supreme court, under section 22 of the general railroad otherwise go in ordinary floods, otherwise he will be act of 1850, for the appointment of commissioners to liable for the injury. But this rule does not apply to examine the proposed route of a railroad, and to affirm floods altogether extraordinary and unusual. Wallace or alter the same, except one whose lands have not v. Drew et al. been acquired by the company, and after the service 2. Where it appeared that, although certain banks on him of the written notice required by said section to and erections, made by the defendants on their own be given by such company, and he must feel aggrieved premises to guard the bank, had caused the waters of by the proposed location over or through his land, and a creek to flow in a new direction upon the plaintiff's set forth his objections to the route designated through land, where they would not have gone but for those his land, in his petition. The People ex rel. The Erie erections; yet, as all the water thus flowing upon the and Genesee Valley R. R. Co. v. Tubbs et al.

plaintiff's premises did not come from the branch of 2. Duty of commissioners. — The commissioners thus the creek which flowed through the defendant's lands, appointed are to examine the proposed route, and hear or by means of their guards and erections, but that an the parties, before deciding; that is, the parties to the obstruction placed by M. in the channel of another proceeding - the petitioner on the one side, and the branch of the same stream had caused the waters of company on the other, and the decision must be con that branch also to flow at the same time upon the fined to the rights of the parties heard, and consistent plaintiff's land, and both streams had contributed to with the rights of the public. Ib.

the injury complained of. It was held, that it would 3. Hearing before commissioners: notice of. — Tho be unjust to hold the defendants responsible for the statute provides, in terms, for a hearing before the portion of the injury and damage occasioned by the commissioners of the parties, which, of course, includes act of M., who was in no way connected with them, in the railroad company as one of the principal parties to act or interest, and whose obstruction was wholly upon the proceeding. Ib.

his own land, and upon another stream. Ib. 4. A copy of the petition for the appointment of commissioners, under the 22d section of the general railroad act, should be served upon the railroad company as a part of the notice of hearing before the com

THE DECLINE OF THE BAR. missioners, so that the company may be advised of I. “The Bar of New York is going to the dogs, sir! what it is to meet. Ib.

It is growing rotten, corrupt, undignified, grasping,

avaricious; its dignity is gone, sir, gone! Why, sir, WAR.

when I was admitted to practice 1 Effect upon agencies. — Where a New York life

And then my venerable friend Temporis Acti, his insurance company, at the commencement of the late honest countenance glowing with indignation and civil war, had an agent residing at Mobile, in the State strong ale (this is after lunch), tells us what a wonderof Alabama, to whom a person insured had been in the ful , body that was of which he was a member, the babit of paying the premiums for several years; it was chivalry, the learning, the courtesy, the generous disheld, that the war did not suspend the agency, and that regard of money, the esprit du corps which animated the payment of a premium to such agent, during the it, etc., etc. war, was binding upon the company, and had the effect (Here I open a parenthesis, while my friend T. A. to continue the policy in force. Sands v. The New York puffs his post-luncheon cigar and noisily blows off some Life Insurance Company.

of his steam. Why do people, trying to say in a lan2. Legal effects of. – When a war is commenced be guage which they know nothing about that which they tween nations it arrests, ex instanti, all commercial might correctly state in their own, invariably get intercourse and voluntary communication with the things wrong? Why say esprit du corps when it is enemy, without the permission of the government, just as easy to say esprit de corps ? Why rob bouquet of and the citizens or subjects of one belligerent become its honest u, and insert it irrelevantly into soubriquet ?

[ocr errors]
[ocr errors]
« AnteriorContinuar »