« AnteriorContinuar »
and the Missouri case of Life A880. of America v. confession is to be treated as evidence of the corpus Googher, 3 Mo. App. 173. We do not regard the con delicti, in other words, as competent proof of the body trary decision in Croft v. Richardson, 59 How. Pr. of the crime, though insufficient without corrobora356, as of sufficient authority to counteract these tion to warrant a conviction. Oot. 5, 1886. People v. cases, or to disturb what we consider to be the well Juehne. Opinion by Andrews, J. established law on the subject. The law clearly is MANDAMUS-BOARD OF RAILROAD COMMISSIONERS that the court of chancery will not interfere by in
-CONSOLIDATION OF RAILROADS-ABANDONMENT OF junction to restrain the publication of a libel, as was
PARALLEL LINE.-A peremptory writ of mandamus is distinctly laid down by Lord Chancellor Cairus in the
only authorized when the applicant's right to a mancaso of the Prudential Assurance Co. v. Knott, 10 Ch.
damus depends entirely upon questions of law. In deApp. 142, wbere he says, in reference to an application termining therefore whether a peremptory writ was for an injunction to restrain a libel calculated to injure
properly issued the courts will consider only such property: “Not merely is there no authority for
facts alleged in the petition as were not devied or put this application, but the books afford repeated instan
in issue, and the affirmative allegations of the affidaces of the refusal to exercise jurisdiction,” he refer
vits presented in opposition to the writ. It must be ring to several authorities. If this decision has since
assumed in the consideration of the writ applied for been overruled, it is only because of the enlarged ju
by the attorney general in behalf of the people, that it risdiction conferred upon the English Courts by the
was issued only to subserve a public interest and to statutes referred to. It is a standing authority on the
protect a publio right. A decision of the board of railgeneral law independent of legislation.
road commissioners has no binding or conclusive au. We do not think that the existence of malice in
thority. Its decisions are merely advisory or recompublishing a libel, or uttering slanderous words can
mendatory, and a railroad company is at liberty to make any difference in the jurisdiction of the court.
obey or disobey them. When & railroad company by Malice is charged in almost every case of libel, and no
consolidation becomes the owner of two lines of road case of authority can be found, we think, iudependent
running between the same points,so that it can substanof the statute, in which the power to issue an injunc
tially accommodate the publio by operating one line, tion to restrain a libel or slanderous words, has ever been maintained whether malice was charged or
and without any serious detriment to any cousiderable
number of people of the State, it will not be comnot.
pelled to maintain both lines, at great expense, notCharges of libel and slander are peculiarly adapted
withstandiug a few individuals are discommoded by to, aud require trial by jury; and exercising, as we do,
the discontinuance of one line. We have with great care authority under a system of government and law
examined and considered the numerous authorities which by a fundamental article secures the right of
cited on behalf of the people in support of this writ, but trial by jury in all cases at common law, and which by
we find none which justify it. Several cases were cited express statute declares that suits in equity shall not
in which it was held that a railroad company could be be sustained in any case wbere a plain, adequate and
compelled by mandamus to operate its railroad to the complete remedy may be had at law, as bas always
terminus specified in its charter. Farmers' Loan &Trust heretofore been considered the case in causes of libel
Co. v. Henning, as Rec'r, eto., 17 Am. Law Reg. (N.S.) and blander, we do not think that we would be jus
266; State v. H. & N. H. R. Co., 29 Conn. 538; Union tified in extending the remedy of injunotion to such
Pacific R. Co. v. Hall, 91 U, S. 343; King v. R. Co., 2 cases.
Barı. & Ald. 646; People v. Albany & Vermont R. The application for injunctiou must be denied, and
Co., 24 N. Y. 261. But the principles of those cases the ancillary bill dismissed with costs.
are not controling in this, because here the railroad service is kept up, and the public duty which devolved
upon it at its organization is fully and substantially NEW YORK COURT OF APPEALS ABSTRACT. performed by the defendant. Oct. 5, 1886. People v.
Rome, Watertown, etc., R. Co. Opinion by Earl, J. CRIMINAL LAW-BRIBERY-PENAL CODE, SS 72 - NEGLIGENCE - FERRY-BOAT STRIKING BRIDGE-RECONFESSION_CODE CRIM. PROC., § 395-CORPUS DE
QUESTS TO CHARGR-CONTRIBUTORY NEGLIGENCELICTI.-Section 72 of title 8 of the Penal Code, relating | DAMAGES.--The ferry-boat of plaiutiffs, while on one to the crime of bribery, applies generally to municipal of her regular trips across the Hudson river, encounofficers. Section 58 of the New York Consolidation tered a quantity of floating ice, and was carried and Act, relatiug to the bribery of municipal officers, is lodged against the bridge of the defeudant. Whilst superseded by the Penal Code, and the crime of bri- the boat was resting against the bridge, the defendbery committed by a member of the Common Council ant, by its servants, undertook to remove the same, of the city of New York is punishable under the Pe. and in doing so, pulled the boat under the bridge, nal Code. A later statute covering the same subject- causing a part of that structure to fall upon the boat, matter, and embracing now provisions, operates to re- doing her great injury. The boat was sunk and swept peal thr prior act, although the two acts are not in ex- by the current to the lower part of the city, where she press terms repugnant. See Norris v. Crocker, 13 remained sunken for several weeks, and was finally How. (U. 8.) 429: Bartlet v. King, 12 Mass. 545; raised by plaiutiffs. Iu an action to recover damages United States v. Tyner, 11 Wall. 88; Heckmann v. evidence was conflicting, and the plaintiff had a ver Pinkney, 81 N. Y. 215; People v. Gold and Stock Tele- dict. Held, that the court committed no error in regraph Co., 98 id. 78. Wheu in addition to the confes- fusing to charge the jury that the plaintiffs, upon the sion of a defendant, there is proof of circumstances evidence in the case, were not entitled to any recorwhich although they bave an innocent construction, ery against the defendant, as there was evidence suffiare nevertheless calculated to suggest the commission cient to authorize the submission to the jury as to of the crime charged, and for the explanation of which negligence or fault on the part of the plaintiff. The the confession furnishes the key, the case cannot be trial judge charged the jury that if T., the superintaken from the jury for a non-compliance with the
tendent of defendant, and his men proceeded to restatute which declares that a defendant's confession
move the boat, either upon the request of Mark-who “is not suficient to warrant a conviction without ad. represeuted the plaintiffsmor with his consent, exditional proof that the crime charged has been com- pressly or impliedly given, by a failure to object to mitted." The words quoted seem to imply that the their proceedings, the defendant was not liable; that
the men who did the work, although generally in the tion against any one, except the true owner, or one
ABSTRACTS OF VARIOUS RECENT DEfendant to free the bringe from the obstruction. Ex
CHATTEL MORTGAGE-VOID FOR USURY-CONSTRUCnegligence on the part of its servants in the removal TIVE DELIVERY-TROVER AND CONVERSION.-S. held of the boat.” It was repeatedly charged that the de- a chattel mortgage upon wheat and other personal fendant was not liable for want of skill in the persovs property belonging to W. admitted to be usurious. It engaged in the removal of the boat, but ouly for the also contained a clause authorizing the mortgagee to commission or omission of some act which an ordi- take possession of the mortgaged property before it narily prudent man would not have committed or
became due. A few days before it matured he proomitted, and for reckless conduct on their part.
cured of W., the mortgagor, a writing by which the Held, that the jury were correctly instructed as to the latter, in terms, “turned the property" described in rule of liability. Under the circumstances the exer
the mortgage to S. The wheat was not however recise of such ordinary prudence as would be expected moved, but still remained in the granary of W., ud even of unskilled persous was not too stringent a re
under his control. Subsequently S. came to W.'s quirement in view of the serious consequences liable premises, and without his consent, and against his to ensue from a reckless performance of the work in will, took and carried away the wheat, and thereafter which the defendant's servants were engaged. The
sold the same. Held, that the mortgage was void, and evidence was conflicting as to what was done after the
that the property was not actually applied in payspan of the bridge had been brought down upon the
ment of the same, through the constructive possession boat. Defendant claimed that it removed the debris obtained under the writing referred to, and that W. and made the boat fast to the wharf, and that she af.
was eutitled to recover the value of the wheat so terward drifted away and sauk, and that it is not lia
taken in an action for the conversion thereof. Minn. ble for the damages accruing after the falling of the Sup. Ct., Sept. 7, 1886. Wilherell v. Stewart. Opiniou span; while, according to the plaintiff's testimony, by Vanderburgh, J. defendant took no measures to remove the span, but
OF PROPERTY left it on the boat, and she was sunk thereby and in
BY STRANGER. the night drifted down the river. The court charged (1) A chattel mortgage of “all that certain stock that if the facts were as claimed by the defendant, it of one-inch seasoned lumber, being one car-load of was mot responsible for the subsequent damages, but about 12,000 feet," and further describing the proponly for those which flowed directly from the fall oferty as being at a particular place in the city of M., the bridge, but that if the span was permitted to rest may, as between the parties, or as to a subsequent upon the boat until it sank by the weight of the purchaser with notice, or a stranger, be shown by structure and then drifted down the stream, the evidence to be applicable to a car-load of such Jumber plaintiffs could recover for the subsequently-accruing standing at a different place in the city from that damages, provided that they themselves, by the use of named in the mortgage. (2) Evidence showing that ordinary diligence, could not have relieved the boat. the property was to be removed to the place designaDefendant accepted to the portion of the charge re- ted in the mortgage would be admissible to apply the lating to the degree of diligence which the plaintiff's mortgage to property otherwise correctly described. were bound to exercise for the purpose of freeing the (3) A mortgagee, having the right of possession, may boat from the span of the bridge after it had fallen recover the full value of the property, even in excess upon the boat, claiming that the plaintiffs were bound of his debt, in an action against a stranger who shows to use extraordinary diligence for that purpose. Held, no right to the property. Mim. Sup. Ct., Oct. 1, 1886. that the charge was correct. Defendant requested the Adamson v. Peterson. Opinion by Dickinson, J. court to charge that plaintiff's could not recover for any damage done to the boat after a portion of the
CONVERSION-WHAT CONSTITUTES. - Mere delay by bridge was pulled upon her, for the reason that sucb
the bailee of a horse hired to drive to and from a damage, on the uncontradicted evidence
place named without stopping is not sufficient evimight have been prevented by the plaintiff. Held,
dence of a conversion. To constitute a conversion of that an instruction to the jury, that if they found that
chattels there must be some exercise of dominion with the exercise of ordinary care and diligence plain
over the property in repudiation of or inconsistent tiff could have removed the debris from the boat and
with the owner's rights. Heald v. Carey, 11 (. B. 977; saved her from subsequent injuries, defendant was
Cooley Torts, 448; Hyde v. Noble, 12 N. H. 499; Jobunot liable, properly disposed of the question. De
son v. Farr, 60 id. 426. It is not every wrongful infendant requested the court to charge that the burden termeddling with asportation or detention of another's of proof was
upon the plaintiffs as well upon the goods that amounts to a conversion. Acts which of . question of damages as upon the question of negli. | dominion over another's proverty as a sale, letting or
themselves imply an assertion of title to or a right of gence, and that if plaintiffs had failed to show what damages resulted from the alleged negligent acts of
destruction of it may be a conversion although the the defendant, and to distinguish them from damages
defendant has honestly mistaken his rights; but acts for which defendant was not responsible, they could
which do not of themselves imply such assertion of recover only nominal damages. The court refused so
title or right of dominion will not sustain an action of to charge. Held, no error. Oct. 5, 1886. Mark v.
trorer unless they are done with the intention of deHudson River Bridge Co. Opinion by Rapallo, J.
priving the owner permanently or temporarily of the
property. Spooner v. Manchester, 133 Mass. 273; TRESPASS-POSSESSION EVIDENCE OF TITLE.- Actual
Willoughby, 8 M. & W. 510. Non-feasance possession of personal property is enough, without any acts of negligence, or the breach of a contract, standevidence of title, to enable a party to maintain an ac
ing alone, will not in general effect a conversion.
Bowlin v. Nye, 10 Cush. 416; Heald v. ('arey, 11 C. B. 977; Wentworth v. McDuffie, 48 N. H. 402; Eaton v. Hill, 50 id. 235; Woodman v. Hubbard, 25 id. 67. The only misconduct of the defendant here complained of is bis delay or pon-action. This of itself was not inconsistent with a full recognition by the defendant of the plaintiff's title avd right of dominion, and it is accompanied with no evidence tending to show an intention on the part of the defendant to deprive the plaintiff of his title or dominion either permanently or temporarily. It was at most a mere breach of the contract. Standing alone it no more tends to prove a purpose to deprive the plaintiff of his property tban would a neglect to feed the horse, as he had agreed, or a refusal to pay the contract price for its use. The delay cannot be declared as a matter of law to be eren a breach of the contract. The language of the agreement must be so construed as to effectuate the understanding and intention of the parties. They did not understand that stopping to water or feed the horse, to mend the broken wagon or horuess, or a stopping required by reasonable necessity for any purpose would be a violation of the contract. Whether a delay of half an bour awaiting the arrival of a friend was, uuder all the circumstances reasonably unnecessary is a question of fact. N. II. Sup. Ct., July 29, 1886. Evans v. Jason. Opinion by Carpenter, J.
COPYRIGHT-IN PICTURES IN ILLUSTRATED NEWSPAPERS.-The defendant made an electroty pe copy of "au important, substantial, and material part" of the plaintiffs' copyrighted illustrated newspaper, and sold tbe plate to the proprietor of another illustrated newspaper published in the same city where the plaiutiffs' newspaper is published, the defendant kuowing at the time of selling the plate that it would be used by the purchaser for printing and publishing in such newspaper the matter copied by defendaut. Under such circumstances the defendant is in no better position than he would be if he had himself printed and published the copyrighted matter in the purchaser's newspaper, because as was stated in Harper v. Shoppell, 26 Fed. Rep. 519, 521, he is to regarded as having sanctioned the appropriation of the plaintiffs' copyrighted matter, and occupies the position of a party acting in concert with the purchaser who printed and published it, and is responsible with him as a joint tort-feasor. Wallace v. Holmes, 9 Blatchf. 65; De Kuyper v. Witteman, 23 Fed. Rep. 871; Travers v. Beyer, 26 id. 450. U. S. Cir. Ct., S. D. N. Y., Sept. 8, 1886. Harper v. Shoppell. Opinion by Wallace, J.
CORPORATION-LEGAL EXISTENCE HOW QUESTIONED -QUO WARRANTO.-Where parties in good faith attempt to organize as a corporation under a law authorizing such incorporation, and hold property and perform acts as a corporation, its legal existence can only be questioned at the suit of the State, instituted by the proper prosecuting attorney, and by a private in dividual. Iu Hasselman v. United States Mortg. Co., 97 Iud. 365, the court said: “Where the law authorizes a corporation, and there is au effort in good faith to organize a corporation under the law, and thereupon, as a result of such effort, corporate functions are assumed and exercised, the organization becomes a corporation de facto, and as a general rule, the legal existence of such a corporation cannot be inquired into collaterally, although some of the required legal formalities may not have been complied with. Ordinarily such an inquiry can only be made in a direct proceeding brought in the name of the State.
See State v. Bailey, 19 Ind. 432; White'v. State, 69 id. 273; State v. Gordon, 87 id. 171. No private person, having dealings with a de facto corporation, can be permitted to say that it is not also a corporation de jure.” Baker v. Neff, 73 Ind. 68;
Hon v. State, 89 id. 249; Williamson v. Kokomo, etc., Ass'n, id. 389. In support of the sufficiency of the re. lators' information, and of their right to maintain this suit, their counsel cites and relies upon the case of Albert v. State, 65 Ind. 413. The case cited is readily distinguishable-as will be seen from an examination of the opinion therein-from the case in band. It was in form au information in the nature of a quo warranto, but in reality it was a suit in equity by cestuis que trust against their trustee to obtain the appointment of a receiver to take possession of the ansets of a bank, which had abandoned business for many years, and to compel & distribution of such assets among the parties interested therein. Whatever may be said in the case last cited, if any thing, in seeming conflict with our present holding, must be regarded as modified in accordance with this opinion. Ind. Sup. Ct., Sept. 14, 1886. North v. State. Opinion by Howk, C. J.
CRIMINAL LAW-HOMICIDE-JUSTIFIABLE – TECH. NICAL TRESPASSER - TEST OK SELF-DEFENSE. - - Α person, who being on the land of another, is ordered off by the land-owner, and assaulted and threatened with death by him as he is obey. ing, may, if he kill the land-owner, prove the circumstances to sustain the plea of self-defense, notwithstanding that he was technically a trespasser, unless it is shown by the prosecution that he knew previously that the trespass would provoke a violent couflict with the land-owner. (2) The question whether a reasouable man, in the situation of defendant at the time of the killing, would have conceived his life in dauger at the hands of deceased, is no test of justifiable homicide. Iowa Sup. Ct., Oct. 6, 1886. State v. Archer. Opinion by Reed, J.
EVIDENCE-PAROL-AMBIGUITY IN BUILDING CONTRACT.-Where a clause in the specificatious, the basis of a building contract, recites that "the entire walls of the building, inside and outside, are to be painted," and it is claimed and denied that the meaving is tbat the plaster as well as the wood-work is to be painted, and an expert testifies that the meaning of the clause would " depend on the conversation," the language of the clause is sufficiently ambiguous to warrant the admission of extraneous evidence to explain its mean. ing. Wis. Sup. Ct., Sept. 21, 1886. Beason v. Kurz. Opinion by Lyon, J.
IN CASH-BOOK.- One of the suits is a bill in chancery for an accounting between the parties as copartners, and the referee allowed in evidence the private cash-book of the defendant to show that he had accounted for debts due the firm and collected by him on his private account. The defendant being a witness, might, for the purpose of refreshing his recollection, refer to and read the items in his cash-book as memoranda of payments made at the time of the transactions. Webster v. Clark, 30 N. H. 245; Putnam v. Goodall, 31 id. 419. And the case does not show that any use was made of the book beyond enabling the defendant, who testified to refresh and verify his recollection. The cash entries in the book were themselves evidence of the payment of sums of money not exceeding $6.67 at one time. Bailey F. Ilarvey, CO N. H. 152. And in equity proceedings, by the English practice, in chancery, and by the rules of the Federal courts in this country, the master, before whom the account is taken, may examine the parties upon oath and require the production vf any books, papers, or other documents applicable to the items of the account. 3 Greenl. Ev., &$ 332, 333. If the legislation of this state enabling parties to testify has to some extent removed the necessity for the production of books and papers in evidence, the common
law rule, by which their production for examination record in New York, merely from the fact that the might be required, has not been abolished, the legisla- debtor happened, for the time being, to reside in Caltive intent being to enlarge and not to narrow the ifornia. If the debtor went back to New York or bad field of evidence. Page v. Whidden, 59 N. H. 507. In property there, it is clear that the California adminisstating the account between the parties there was no trator could not collect the money. If he collected error of law in the admission of the defendant's cash- anywhere, it would not be by virtue of the judgment book in evidence. N. H. Sup. Ct., July 29, 1880. Con- in New York vesting in him any title to it, but merely verse v. Hobbs. Opinion by Allen, J.
because the transcript of the judgment gave him evi
dence upon which he might sue. The judgment is a EXECUTORS AND ADMINISTRATORS-JUDGMENT OB
record; and for any use to be made of it, or any power TAINED BY FOREIGN ADMINISTRATOR-ACTION ON.-A to enforce it, by execution or other process, must bejudgment obtained by an administrator is a debt at
long to the administrator in New York, or this anom. law due him personally, on which he can sue as an in- aly would result: That the administrator in Califordividual in a foreign State. That the local adminis. nia would own the judgment for the purpose of suing trator could not maintain an action on a judgment on it in California, and the administrator in New recovered by a foreign administrator as such in
York would own it for the purpose of collecting it by another State was decided in Talmage v. Chapel, 16 issuing execution on it in New York. We thiuk no Mass. 71. There the court held: First, the judgment such doctrine can be maintained." According to the debt was at law due to the foreign administrator, he principles recognized by all the authorities, the judge being answerable to the estate of the intestate; sec- ment debt herein sued was a debt at law due to the ond, that the ancillary administrator, appointed in plaintiff personally, and she was fully authorized to Massachusetts, could not maintain an action on the bring and prosecute this action. Cal. Sup. Ct., Aug. judgment, not being privy to it. Counsel for respond- 16, 1886. Lewis r. Adams. Opinion by MoKinent herein criticises that decision, saying: “ It is ab- stry, J. surd to say that by recovering a judgment the administrator becomes chargeable with it." And counsel INSURANCE
ASSIGNMENT PAROL TO claim that an executor or administrator appointed MOTHER OF ILLEGITIMATE CHILD.-One who has rehere could sue here on the judgment, because the forceived a certificate of life insurance on his life, payeign judgment is in favor of the estate which such an able to his heirs, may assign the same by parol to the executor or administrator would represent. But the mother of his illegitimate child for its support, when Supreme Court of Massachusetts did not hold that the the company does not object. The certificate is a foreign administrator was chargeable with the judg-chose in action assignable by parol. The fact that it ment in the sense that he was bound absolutely to provides that it may be assigned with the consent of satisfy and pay it, but that he was answerable to the the association, and an action maintained thereon by estate to the extent of using all reasonable efforts to the assignee, is simply an adoption of the common collect the judgment. It would seem sufficiently plain law. Boyd v. Webster, 58 N. I. 336; 1 Bouv. Law that the Massachusetts administrator was not in priv- | Dict. 265, $ 2; Foss v. Bank, 111 Mass. 285, 287. At ity with the title of the foreign administrator to the common law, also the assignee becomes the equitable judgment, or with that of the person who had recov- owner, and without the consent of the debtor to the ered the judgment, and to whom at law the judgment assignment of a chose in action, may maintain a suit debt was personally due. In Bidule v. Wilkins, 1 in the name of the assignor, or bis legal representaPet. 686, the plaintiff, as administrater of one W., bad tive, and after notice to him of the assignment, the recovered a judgment against the defendant in the equitable interest of the assignee will be protected in District ('ourt of the United States for Pennsylvania. courts of law against all interference of the original He instituted a suit on the judgment in the District parties. Duncklee v. Steam Mill Co., 23 N. H. 243, Court of the United States for Mississippi. The de- 250 ; Thompson v. Emery, 27 id. 269, 272; Cameron v. fendant pleaded that he had been appointed adminis- | Little, 13 id. 23, 25; Gordon v. Drury, 20 id. 353. The trator of the estate of W. by the Orphans' Court of assignment need not be in writing or in any particuAdams county. The Supreme Court of the United
lar form of words, if a consideration is proved, and States held that the debt due upon the judgment ob- the meaning of the parties appears. The assignment tained in Pennsylvania by the plaintiff, as adminis- was not void on account of its immorality. It was trator of W.'s estate, was due to him in his personal not immoral for the mother to provide for the maincapacity, and it was immaterial whether the defend.
tenance of the child, whatever may have been her ant was or was not appointed administrator of the es- previous conduct, and its support was a good considtate of W. in the State of Mississippi. In Low v. Bur. eration for the assignment of the certificate. Parker rows, 12 Cal. 188, the Supreme Court of this State v. Way, 15 N. H. 45, 51; Hoit v. Cooper, 41 id. 111; said: “The second objection is equally untenable. Haven v. Hobbs, 1 Vt. 238; Holcomb v. Stimpson, 8 We concede that the administrator has power over id. 111; Jennings v. Brown), 9 Mees. & W. 495; Hicks only those assets within the State where letters are v. Gregory, 8 Man., G. & S. 378; Smith v. Roche, 6 (. granted; and we might concede that in case of notes, B. (N. S.) 223. If Green had not voluntarily paid the bonds, etc., of debtors who live and have their prop- expense of the child, and provided for its future superty beyond the jurisdiction, the administrator has port, he might have been compelled to do so. Gen. no jurisdiction or dominion. But this is not the case Laws, ch. 81, $S 1, 4, 6, 7. The question in this case is in respect to judgments. There can be no doubt if a between the legal representatives of Charles C. Green debtor against whom the intestate in his life-time ob- and the defendant. The association having paid the tained judgment, tb at the time of the death of money without objection to the equitable right of the the intestate the debtor was beyond the jurisdiction, defendant, the representatives of Green cannot insist afterward came within the jurisdiction, the adminis- upon any objection which the association has waived. trator might proceed to collect the money from him. N. H. Sup. Ct., July 30, 1886. Brown v. Jansus. Opiu. The effect of a judgment, as such, unlike a note, is ion by Bingham, J. confined to the State where rendered. It is therefore record evidence of a debt. It may be sued on, it is JUDGMENT--CONCLUSIVENESS — TITLE IN REPLEVIN. true, out of the State. But it is not easy to see how -The proposition that the judgment of a court bav. an administrator of the creditor in Calitornia could ing jurisdiction of the parties and the subject-matter take to himself as assets a judgment remaining on is conclusive has become a settled maxim of the law.
This however means nothing more than that such execution of the note as his accomplice. That there judgment is conclusive upon all questions which were, was concerted action between them is very evident. or might have been, litigated and determined, within | The foundation of the transaction and also the conthe issues before the court. Neither reason nor au- sideration of the note both rested on the one gambling thority lend any support to the view, that because operation. Such being the case although the note be suitors have submitted certain designated matters to negotiable in form, it is void even in the hands of a the consideration of a court, the tribunal is thereby good faith and innocent holder for value. Penn. Sup. authorized to determine any other matter in which Ct., April 5, 1886. Harper v. Young. Opinion per the parties may be interested, whether it be involved Curiam. in the pending litigation or not. “ Persons, by be
STOCK CAPITAL OR INCOME - TENANT FOR LIFE coming suitors, do not place themselves, for all pur
AND REMAINDERMAN. --The testator, by his will, gare poses, under the control of the court, and it is only
to his wife for life his freehold house in the Strand over those particular interests which they choose to and thirty-five shares in a gas compar.y, and subject draw in question that a power of judicial decision thereto, he directed that the same should fall into the arises." Munday v. Vail, 34 N. J. Law, 418; Fair.
residue. What occurred was this: The surviving child v. Lynch, 99 N. Y. 359; King v. Chase, 15 N. H.
trustee, being resident abroad, gave a power of attor. 9; 8. C., 41 Am. Dec. 675; Wood v. Jackson, 8 Wend.
ney to certain persons to act for him in the adminis9; S. C., 22 Am. Dec. 603; Smith v. McCool, 16 Wall. tration of the trust. Ju 1876 the gas company issued a 560; Bigelow Estop. 92. Primarily, the action of re
notice to its shareholders that it was about to issue plevin is possessory in its character, and unless the
fresh stock, and offered some of it to the trustee. title to property is distinctly put in issue, a judgment There was no power in the will to make this investin such action determines nothing beyond the right of
ment. One of the persons to whom the power of atpossessio!. Eutsminger V. Jackson, 53 Ind. 144;
torney was given, by arrangement with his cc-attorHighnote v. White, 67 id. 596; Hoke v. Applegate, 9.2
neys, accepted the offer of the company, and took up id. 570; Van Gorder v. Smith, 99 id. 404; Wells Repl.,
some of the new stock in his own diame and with his 9 39. The general rule is that the issuable facts or
own money. He was not however allowed to hold matters upon which the plaintiff's case proceded, de- such stock for himself, but the stock was directed by termine what was in issue, uuless it appears, from an
the court to be sold. It was accordingly sold, and examination of all the pleadings in a given case, that the amount representing the original purchase-money other matters were brought forward, and thus became and interest, after deducting the dividends, was renecessarily involved and determined in the suit. paid and the balance paid into court. The question Goble v. Dillon, 86 Ind 3:37; Grillin v. Wallace, 66 id.
now is, what is to be done with that balance? It 410; Davis v. Brown, 94 U. S. 423; Russell v. Place, id.
seems to me that the trust must be treated as if there 006. A judgment upon matters Bot thus in issue is
were no other trust existing except this one, because not conclusive, and subjects adjudicated which were
it was in respect of this particular trust that the not in issue may be inquired into collaterally, not
trustee obtained the power which he has used in this withstanding the judgment. Munday v. Vail, supra;
particular manner. Assuming the trustee to bare Campbell v. Consalus, 25 N. Y. 613, and cases cited.
taken up the shares with his own money, it is clear Au examination of the complaint and the pleadings that he could not have been indemnified out of the esin the rcplerin suit makes it apparent that no ques- tate in the event of a loss. If he made a profit he tion of title could have been conclusively determined
must hand it over to the estate. The benefit, if there by the judgment in that case. In so far as the court
be one, must be treated as belonging to the particular assumed to settle the question of the ownership of the trust. But how can a tenant for life claim this balproperty in controversy, it acted upon a matter not
ance? It is not like the case of Paris v. Paris, uti before it, and its finding and judgment were in that
supra, where there was an extraordinary division of a respect not only irregular, but coram non judice, and
sum of money by the bank of England among the void. Munday v. Vail, supra. Ind. Sur. Ct., Sept. 4, proprietors of bank stock, beyond the usual dividend, 1886. M'Fadden v. Ross. Opinion by Mitchell, J.
and Lord Eldon there decided that it must be considNEGOTIABLE INSTRUMENT-GIVEN FOR GAMBLING
ered as capital. This is not a question of profits in re
spect of old shares, but of a new investment which IXXOCENT HOLDER.-A., from Reading, Pen., was approached in Waukesha, Wis., hy B., who falsely rep
the old shareholders get by the company's act of Parresented himself as a son of a friend of A. They went
liament. It is a sort of good will. The tenant for together to an establishment kept by (., where B.
life could not have compelled the trustees to take up (who was in point of fact on accomplice of C.) entered
this new stock, for the will did not authorize such an into a gambling transaction. In the end he was de
investment, and they would thereby bave been comclared indebted to C., to whom he gave his check for mitting a breach of trust. How is it possible then to $2,000. He then asked A. to give his note for $1,500,
treat it as income? I must consider the case as if the payable in seventy days, to enable him to lift his
trustees had taken up this stock in their own pames, check that he might avoid the disgrace of an expos
and had been compelled by the court to give it up. It ure, B. promising to give A. his note for a like sum
seems impossible to consider the whole amount of payable in sixty days. A. gave a note as requested,
money obtained by the sale as profit belonging to the making it payable to C. or bearer, which note was
tenant for life. I must therefore hold that it is capsold in Chicago, Ill., for value to D., an innocent pur
ital, but that the widow is entitled to the income chaser without notice, who in course of time brought
thereof for life. Re Bromley; Sanders v. Bromley. assumpsit upon it to recover in Philadelphia, Penn. | Opinion by Kay, J. (Ch. Div. 55 L. T. Rep. (N. S.) Ileld, that as the foundation of the transaction and
145.] the consideration of the note both rested on a gamb- SURETY-FOR GOOD CONDUCT-CHANGE OF EMPLOY: ling operation, there could be no recovery. The fact MENT.-The bond recites that Hooper has been emthat a fraudulent device was superadded to induce the ployed by the trustees of the Philadelphia Gas works giving of the note did not destroy the gambling na- "to do and perform whatever kind of work, service, ture of the scheme, The note was made payable to or duty which he may be assigned to by the said the order of the person who won the money in gamb- trustees or those in their employment.” The condiling, and in payment of the debt thereby incurred. It tions are that he shall well and truly perform, execute, matters not that he was not as active in procuring the and discharge “all and every employment, work, ser