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and the Missouri case of Life Asso. of America v. Googher, 3 Mo. App. 173. We do not regard the contrary decision in Croft v. Richardson, 59 How. Pr. 356, as of sufficient authority to counteract these cases, or to disturb what we consider to be the well established law on the subject. The law clearly is that the court of chancery will not interfere by injunction to restrain the publication of a libel, as was distinctly laid down by Lord Chancellor Cairus in the case of the Prudential Assurance Co. v. Knott, 10 Ch. App. 142, where he says, in reference to an application for an injunction to restrain a libel calculated to injure property: "Not merely is there no authority for this application, but the books afford repeated instances of the refusal to exercise jurisdiction," he referring to several authorities. If this decision has since been overruled, it is only because of the enlarged jurisdiction conferred upon the English Courts by the statutes referred to. It is a standing authority on the general law independent of legislation.
We do not think that the existence of malice in publishing a libel, or uttering slanderous words can make any difference in the jurisdiction of the court. Malice is charged in almost every case of libel, and no case of authority can be found, we think, independent of the statute, in which the power to issue an injunctially tion to restrain a libel or slanderous words, has ever been maintained whether malice was charged or not.
Charges of libel and slander are peculiarly adapted to, and require trial by jury; and exercising, as we do, authority under a system of government and law which by a fundamental article secures the right of trial by jury in all cases at common law, and which by express statute declares that suits in equity shall not be sustained in any case where a plain, adequate and complete remedy may be had at law, as has always
heretofore been considered the case in causes of libel and slander, we do not think that we would be justified in extending the remedy of injunction to such
The application for injunction must be denied, and the ancillary bill dismissed with costs.
confession is to be treated as evidence of the corpus delicti, in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction. Oct. 5, 1886. People v. Jaehne. Opinion by Andrews, J.
MANDAMUS-board of RAILROAD COMMISSIONERS -CONSOLIDATION OF RAILROADS-ABANDONMENT OF
PARALLEL LINE.-A peremptory writ of mandamus is only authorized when the applicant's right to a mandamus depends entirely upon questions of law. In determining therefore whether a peremptory writ was properly issued the courts will consider only such facts alleged in the petition as were not denied or put in issue, and the affirmative allegations of the affidavits presented in opposition to the writ. It must be assumed in the consideration of the writ applied for by the attorney general in behalf of the people, that it was issued only to subserve a public interest and to protect a public right. A decision of the board of railroad commissioners has no binding or conclusive authority. Its decisions are merely advisory or recommendatory, and a railroad company is at liberty to obey or disobey them. When a railroad company by consolidation becomes the owner of two lines of road
NEW YORK COURT OF APPEALS ABSTRACT. performed by the defendant.
running between the same points, so that it can substanaccommodate the public by operating one line, and without any serious detriment to any considerable number of people of the State, it will not be compelled to maintain both lines, at great expense, notwithstanding a few individuals are discommoded by
the discontinuance of one line. We have with great care examined and considered the numerous authorities cited on behalf of the people in support of this writ, but we find none which justify it. Several cases were cited in which it was held that a railroad company could be compelled by mandamus to operate its railroad to the terminus specified in its charter. Farmers' Loan &Trust Co. v. Henning, as Rec'r, etc., 17 Am. Law Reg. (N.S.) 266; State v. H. & N. H. R. Co., 29 Conn. 538; Union Pacific R. Co. v. Hall, 91 U. S. 343; King v. R. Co., 2 Barn. & Ald. 646; People v. Albany & Vermont R. Co., 24 N. Y. 261. But the principles of those cases 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 Oct. 5, 1886. People v. Opinion by Earl, J.
NEGLIGENCE FERRY-BOAT STRIKING BRIDGE-REQUESTS TO CHARGE-CONTRIBUTORY NEGLIGENCEDAMAGES.-The ferry-boat of plaintiffs, while on one of her regular trips across the Hudson river, encountered a quantity of floating ice, and was carried and lodged against the bridge of the defendant. Whilst the boat was resting against the bridge, the defendant, by its servants, undertook to remove the same, and in doing so, pulled the boat under the bridge,
CRIMINAL LAW-BRIBERY-PENAL CODE, §§ 72 CONFESSION-CODE CRIM. PROC., § 395-CORPUS DELICTI.-Section 72 of title 8 of the Penal Code, relating to the crime of bribery, applies generally to municipal officers. Section 58 of the New York Consolidation Act, relating to the bribery of municipal officers, is superseded by the Penal Code, and the crime of bribery committed by a member of the Common Council of the city of New York is punishable under the Penal Code. A later statute covering the same subject-causing a part of that structure to fall upon the boat, matter, and embracing new provisions, operates to repeal thr prior act, although the two acts are not in express terms repugnant. See Norris v. Crocker, 13 How. (U. 8.) 429: Bartlet v. King, 12 Mass. 545; United States v. Tyner, 11 Wall. 88; Heckmann v. Pinkney, 81 N. Y. 215; People v. Gold and Stock Telegraph Co., 98 id. 78. When in addition to the confession of a defendant, there is proof of circumstances which although they have an innocent construction, are nevertheless calculated to suggest the commission of the crime charged, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the statute which declares that a defendant's confession is not sufficient to warrant a conviction without ad ditional proof that the crime charged has been committed." The words quoted seem to imply that the
doing her great injury. The boat was sunk and swept by the current to the lower part of the city, where she remained sunken for several weeks, and was finally raised by plaintiffs. In an action to recover damages evidence was conflicting, and the plaintiff had a ver dict. Held, that the court committed no error in refusing to charge the jury that the plaintiffs, upon the evidence in the case, were not entitled to any recovery against the defendant, as there was evidence sufficient to authorize the submission to the jury as to negligence or fault on the part of the plaintiff. The trial judge charged the jury that if T., the superintendent of defendant, and his men proceeded to remove the boat, either upon the request of Mark-who represented the plaintiffs-or with his consent, expressly or impliedly given, by a failure to object to their proceedings, the defendant was not liable; that
the men who did the work, although generally in the employ of the defendant, became for that service the servants of the plaintiffs, and for their conduct the defendant was not responsible. Held, that upon the evidence it was a fair question for the jury whether T. and his men were acting at the request of Mark and as his agents, or in the exercise of the right of the defendant to free the bringe from the obstruction. Exception was taken to the refusal of the judge to charge the jury, at the defendant's request, "that the defendant was not liable in his action unless there was gross negligence on the part of its servants in the removal of the boat." It was repeatedly charged that the defendant was not liable for want of skill in the persons engaged in the removal of the boat, but only for the commission or omission of some act which an ordinarily prudent man would not have committed or omitted, and for reckless conduct on their part. Held, that the jury were correctly instructed as to the rule of liability. Under the circumstances the exercise of such ordinary prudence as would be expected even of unskilled persons was not too stringent a requirement in view of the serious consequences liable to ensue from a reckless performance of the work in which the defendant's servants were engaged. The evidence was conflicting as to what was done after the span of the bridge had been brought down upon the boat. Defendant claimed that it removed the debris and made the boat fast to the wharf, and that she afterward drifted away and sank, and that it is not liable for the damages accruing after the falling of the span; while, according to the plaintiff's testimony, defendant took no measures to remove the span, but left it on the boat, and she was sunk thereby and in the night drifted down the river. The court charged that if the facts were as claimed by the defendant, it was not responsible for the subsequent damages, but only for those which flowed directly from the fall of the bridge, but that if the span was permitted to rest upon the boat until it sank by the weight of the structure and then drifted down the stream, the plaintiffs could recover for the subsequently-accruing damages, provided that they themselves, by the use of ordinary diligence, could not have relieved the boat. Defendant accepted to the portion of the charge relating to the degree of diligence which the plaintiffs were bound to exercise for the purpose of freeing the boat from the span of the bridge after it had fallen upon the boat, claiming that the plaintiffs were bound to use extraordinary diligence for that purpose. Held, that the charge was correct. Defendant requested the court to charge that plaintiffs could not recover for any damage done to the boat after a portion of the bridge was pulled upon her, for the reason that such damage, on the uncontradicted evidence in the case, might have been prevented by the plaintiff. Held, that an instruction to the jury, that if they found that with the exercise of ordinary care and diligence plaintiff could have removed the debris from the boat and saved her from subsequent injuries, defendant was not liable, properly disposed of the question. Defendant requested the court to charge that the burden of proof was upon the plaintiffs as well upon the question of damages as upon the question of negligence, and that if plaintiffs had failed to show what damages resulted from the alleged negligent acts of the defendant, and to distinguish them from damages for which defendant was not responsible, they could recover only nominal damages. The court refused so to charge. Held, no error. Oct. 5, 1886. Mark v. Hudson River Bridge Co. Opinion by Rapallo, J.
TRESPASS-POSSESSION EVIDENCE OF TITLE.-Actual possession of personal property is enough, without any evidence of title, to enable a party to maintain an ac
tion against any one, except the true owner, or one connecting himself in some way with the true owner, for forcibly taking the same from his possession. Oct. 5, 1886. Wheeler v. Lawson. Opinion by Danforth, J.
ABSTRACTS OF VARIOUS RECENT DECISIONS.
CHATTEL MORTGAGE-VOID FOR USURY-CONSTRUCTIVE DELIVERY-TROVER AND CONVERSION.-S. held a chattel mortgage upon wheat and other personal property belonging to W. admitted to be usurious. It also contained a clause authorizing the mortgagee to take possession of the mortgaged property before it became due. A few days before it matured he procured of W., the mortgagor, a writing by which the latter, in terms, "turned the property" described in the mortgage to S. The wheat was not however removed, but still remained in the granary of W., and under his control. Subsequently S. came to W.'s premises, and without his consent, and against his will, took and carried away the wheat, and thereafter sold the same. Held, that the mortgage was void, and that the property was not actually applied in payment of the same, through the constructive possession obtained under the writing referred to, and that W. was entitled to recover the value of the wheat so taken in an action for the conversion thereof. Minn. Sup. Ct., Sept. 7, 1886. Witherell v. Stewart. Opiniou by Vanderburgh, J.
DESCRIPTION OF PROPERTY
IDENTIFICA EVIDENCE- CONVERSION BY STRANGER. —
(1) A chattel mortgage of "all that certain stock of one-inch seasoned lumber, being one car-load of about 12,000 feet," and further describing the property as being at a particular place in the city of M., may, as between the parties, or as to a subsequent purchaser with notice, or a stranger, be shown by evidence to be applicable to a car-load of such lumber standing at a different place in the city from that named in the mortgage. (2) Evidence showing that the property was to be removed to the place designated in the mortgage would be admissible to apply the mortgage to property otherwise correctly described. (3) A mortgagee, having the right of possession, may recover the full value of the property, even in excess of his debt, in an action against a stranger who shows no right to the property. Minn. Sup. Ct., Oct. 1, 1886. Adamson v. Peterson. Opinion by Dickinson, J.
CONVERSION-WHAT CONSTITUTES.-Mere delay by the bailee of a horse hired to drive to and from a place named without stopping is not sufficient evidence of a conversion. To constitute a conversion of chattels there must be some exercise of dominion over the property in repudiation of or inconsistent with the owner's rights. Heald v. Carey, 11 C. B. 977; Cooley Torts, 448; Hyde v. Noble, 12 N. H. 499; Johnson v. Farr, 60 id. 426. It is not every wrongful intermeddling with asportation or detention of another's goods that amounts to a conversion. Acts which of themselves imply an assertion of title to or a right of dominion over another's proverty as a sale, letting or destruction of it may be a conversion although the defendant has honestly mistaken his rights; but acts which do not of themselves imply such assertion of title or right of dominion will not sustain an action of trover unless they are done with the intention of depriving the owner permanently or temporarily of the property. Spooner v. Manchester, 133 Mass. 273; Fouldes v. Willoughby, 8 M. & W. 510. Non-feasance acts of negligence, or the breach of a contract, standing alone, will not in general effect a conversion.
Bowlin v. Nye, 10 Cush. 416; Heald v. Carey, 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 his delay or non-action. This of itself was not inconsistent with a full recognition by the defendant of the plaintiff's title and 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 than 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 even 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 horness, or a stopping required by reasonable necessity for any purpose would be a violation of the contract. Whether a delay of half an hour awaiting the arrival of a friend was, under all the circumstances reasonably unnecessary is a question of fact. N. H. Sup. Ct., July 29, 1886. Evans v. Mason. Opinion by Carpenter, J.
COPYRIGHT-IN PICTURES IN ILLUSTRATED NEWSPAPERS.-The defendant made an electrotype copy of "an important, substantial, and material part of the plaintiffs' copyrighted illustrated newspaper, and sold the plate to the proprietor of another illustrated newspaper published in the same city where the plaintiffs' 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 defendant. 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 be 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 individual. In Hasselman v. United States Mortg. Co., 97 Ind. 365, the court said: "Where the law authorizes a corporation, and there is an 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. 452; 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 relators' 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 thereiu-from the case in band. It was in form an 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 assets of a bank, which had abandoned business for many years, and to compel a 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. TRESPASSER TEST OF SELF-DEFENSE. A 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 cir cumstances 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 conflict with the land-owner. (2) The question whether a reasonable man, in the situation of defendant at the time of the killing, would have conceived his life in danger 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 meaning is that 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 meaning. 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 v. Harvey, 60 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 of any books, papers, or other documents applicable to the items of the account. 3 Greenl. Ev., §§ 332, 333. If the legisla tion 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 debtor happened, for the time being, to reside in California. If the debtor went back to New York or had property there, it is clear that the California administrator could not collect the money. If he collected anywhere, it would not be by virtue of the judgment in New York vesting in him any title to it, but merely because the transcript of the judgment gave him evidence upon which he might sue. The judgment is a record; and for any use to be made of it, or any power to enforce it, by execution or other process, must belong to the administrator in New York, or this anomaly would result: That the administrator in California would own the judgment for the purpose of suing on it in California, and the administrator in New York would own it for the purpose of collecting it by issuing execution on it in New York. We think no such doctrine can be maintained." According to the principles recognized by all the authorities, the judgment debt herein sued was a debt at law due to the
INSURANCE -LIFE ASSIGNMENT PAROL TO MOTHER OF ILLEGITIMATE CHILD.-One who has received a certificate of life insurance on his life, payable to his heirs, may assign the same by parol to the mother of his illegitimate child for its support, when the company does not object. The certificate is a
EXECUTORS AND ADMINISTRATORS-JUDGMENT OBTAINED BY FOREIGN ADMINISTRATOR-ACTION ON.-A judgment obtained by an administrator is a debt at law due him personally, on which he can sue as an individual in a foreign State. That the local administrator could not maintain an action on a judgment recovered by a foreign administrator as such in another State was decided in Talmage v. Chapel, 16 Mass. 71. There the court held: First, the judgment debt was at law due to the foreign administrator, he being answerable to the estate of the intestate; second, that the ancillary administrator, appointed in Massachusetts, could not maintain an action on the judgment, not being privy to it. Counsel for respondent herein criticises that decision, saying: "It is absurd to say that by recovering a judgment the administrator becomes chargeable with it." And counsel claim that an executor or administrator appointed here could sue here on the judgment, because the foreign judgment is in favor of the estate which such an executor or administrator would represent. But the Supreme Court of Massachusetts did not hold that the 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 satisfy and pay it, but that he was answerable to the estate to the extent of using all reasonable efforts to collect the judgment. It would seem sufficiently plain that the Massachusetts administrator was not in priv-| ity with the title of the foreign administrator to the judgment, or with that of the person who had recovered the judgment, and to whom at law the judgment debt was personally due. In Biddle v. Wilkins, 1 Pet. 686, the plaintiff, as administrater of one W., had recovered a judgment against the defendant in the District Court of the United States for Pennsylvania. He instituted a suit on the judgment in the District Court of the United States for Mississippi. The defendant pleaded that he had been appointed administrator of the estate of W. by the Orphans' Court of Adams county. The Supreme Court of the United States held that the debt due upon the judgment obtained in Pennsylvania by the plaintiff, as administrator of W.'s estate, was due to him in his personal capacity, and it was immaterial whether the defendant was or was not appointed administrator of the estate 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 said: "The second objection is equally untenable. We concede that the administrator has power over only those assets within the State where letters are granted; and we might concede that in case of notes, bonds, etc., of debtors who live and have their property beyond the jurisdiction, the administrator has no jurisdiction or dominion. But this is not the case in respect to judgments. There can be no doubt if a debtor against whom the intestate in his life-time obtained judgment, though at the time of the death of the intestate the debtor was beyond the jurisdiction, afterward came within the jurisdiction, the administrator might proceed to collect the money from him. The effect of a judgment, as such, unlike a note, is confined to the State where rendered. It is therefore record evidence of a debt. It may be sued on, it is true, out of the State. But it is not easy to see how an administrator of the creditor in California could take to himself as assets a judgment remaining on
provides that it may be assigned with the consent of the association, and an action maintained thereon by the assignee, is simply an adoption of the common law. Boyd v. Webster, 58 N. II. 336; 1 Bouv. Law Dict. 265, § 2; Foss v. Bank, 111 Mass. 285, 287. At common law, also the assignee becomes the equitable owner, and without the consent of the debtor to the assignment of a chose in action, may maintain a suit in the name of the assignor, or bis legal representative, and after notice to him of the assignment, the equitable interest of the assignee will be protected in courts of law against all interference of the original parties. Duncklee v. Steam Mill Co., 23 N. H. 245, 250; Thompson v. Emery, 27 id. 269, 272; Cameron v. Little, 13 id. 23, 25; Gordon v. Drury, 20 id. 353. The assignment need not be in writing or in any particular form of words, if a consideration is proved, and the meaning of the parties appears. The assignment was not void on account of its immorality. It was not immoral for the mother to provide for the maintenance of the child, whatever may have been her previous conduct, and its support was a good consid
plaintiff personally, and she was fully authorized to bring and prosecute this action. Cal. Sup. Ct., Aug. 16, 1886. Lewis v. Adams. Opinion by McKinstry, J.
v. Way, 15 N. H. 45, 51; Hoit v. Cooper, 41 id. 111; Haven v. Hobbs, 1 Vt. 238; Holcomb v. Stimpson, 8 id. 141; Jennings v. Brown, 9 Mees. & W. 495; Hicks v. Gregory, 8 Man., G. & S. 378; Smith v. Roche, 6 C. B. (N. S.) 223. If Green had not voluntarily paid the expense of the child, and provided for its future support, he might have been compelled to do so. Gen. Laws, ch. 84, §§ 1, 4, 6, 7. The question in this case is between the legal representatives of Charles C. Green and the defendant. The association having paid the money without objection to the equitable right of the defendant, the representatives of Green cannot insist upon any objection which the association has waived. N. H. Sup. Ct., July 30, 1886. Brown v. Mansus. Opinion by Bingham, J.
- TITLE IN REPLEVIN.
JUDGMENT-CONCLUSIVENESS -The proposition that the judgment of a court hav ing jurisdiction of the parties and the subject-matter is conclusive has become a settled maxim of the law.
This however means nothing more than that such judgment is conclusive upon all questions which were, or might have been, litigated and determined, within the issues before the court. Neither reason nor authority lend any support to the view, that because suitors have submitted certain designated matters to the consideration of a court, the tribunal is thereby authorized to determine any other matter in which the parties may be interested, whether it be involved in the pending litigation or not. 'Persons, by becoming suitors, do not place themselves, for all purposes, under the control of the court, and it is only over those particular interests which they choose to draw in question that a power of judicial decision arises." Munday v. Vail, 34 N. J. Law, 418; Fairchild v. Lynch, 99 N. Y. 359; King v. Chase, 15 N. H. 9; S. C., 41 Am. Dec. 675; Wood v. Jackson, 8 Wend. 9; S. C., 22 Am. Dec. 603; Smith v. McCool, 16 Wall. 560; Bigelow Estop. 92. Primarily, the action of replevin is possessory in its character, and unless the title to property is distinctly put in issue, a judgment in such action determines nothing beyond the right of possession. Entsminger v. Jackson, 73 Ind. 144; Highnote v. White, 67 id. 596; Hoke v. Applegate, 92 id. 570; Van Gorder v. Smith, 99 id. 404; Wells Repl., $39. The general rule is that the issuable facts or matters upon which the plaintiff's case proceded, determine what was in issue, unless it appears, from an examination of all the pleadings in a given case, that other matters were brought forward, and thus became necessarily involved and determined in the suit. Goble v. Dillon, 86 Ind 327; Griffin v. Wallace, 66 id. 410; Davis v. Brown, 94 U. S. 423; Russell v. Place, id. 606. A judgment upon matters not thus in issue is not conclusive, and subjects adjudicated which were not in issue may be inquired into collaterally, notwithstanding the judgment. Munday v. Vail, supra; Campbell v. Consalus, 25 N. Y. 613, and cases cited. An examination of the complaint and the pleadings in the replevin suit makes it apparent that no question of title could have been conclusively determined by the judgment in that case. In so far as the court assumed to settle the question of the ownership of the property in controversy, it acted upon a matter not before it, and its finding and judgment were in that respect not only irregular, but coram non judice, and void. Munday v. Vail, supra. Ind. Sup. Ct., Sept. 4, 1886. M'Fadden v. Ross. Opinion by Mitchell, J.
NEGOTIABLE INSTRUMENT-GIVEN FOR GAMBLINGINNOCENT HOLDER.-A., from Reading, Pen., was approached in Waukesha, Wis., by B., who falsely represented himself as a son of a friend of A. They went together to an establishment kept by C., where B. (who was in point of fact on accomplice of C.) entered into a gambling transaction. In the end he was declared indebted to C., to whom he gave his check for $2,000. He then asked A. to give his note for $1,500, payable in seventy days, to enable him to lift his check that he might avoid the disgrace of an exposure, B. promising to give A. his note for a like sum payable in sixty days. A. gave a note as requested, making it payable to C. or bearer, which note was sold in Chicago, Ill., for value to D., an innocent purchaser without notice, who in course of time brought assumpsit upon it to recover in Philadelphia, Penu. Held, that as the foundation of the transaction and the consideration of the note both rested on a gambling operation, there could be no recovery. The fact that a fraudulent device was superadded to induce the giving of the note did not destroy the gambling nature of the scheme, The note was made payable to the order of the person who won the money in gambling, and in payment of the debt thereby incurred. It matters not that he was not as active in procuring the
execution of the note as his accomplice. That there was concerted action between them is very evident. The foundation of the transaction and also the consideration of the note both rested on the one gambling operation. Such being the case although the note be negotiable in form, it is void even in the hands of a good faith and innocent holder for value. Penn. Sup. Ct., April 5, 1886. Harper v. Young. Opinion per Curiam.
STOCK -CAPITAL OR INCOME - TENANT FOR LIFE AND REMAINDERMAN. -The testator, by his will, gave to his wife for life his freehold house in the Strand and thirty-five shares in a gas company, and subject thereto, he directed that the same should fall into the residue. What occurred was this: The surviving trustee, being resident abroad, gave a power of attor ney to certain persons to act for him in the administration of the trust. In 1876 the gas company issued a notice to its shareholders that it was about to issue fresh stock, and offered some of it to the trustee. There was no power in the will to make this investment. One of the persons to whom the power of attorney was given, by arrangement with his co-attor neys, accepted the offer of the company, and took up some of the new stock in his own name and with his own money. He was not however allowed to hold such stock for himself, but the stock was directed by the court to be sold. It was accordingly sold, and the amount representing the original purchase-money and interest, after deducting the dividends, was repaid and the balance paid into court. The question now is, what is to be done with that balance? It seems to me that the trust must be treated as if there were no other trust existing except this one, because it was in respect of this particular trust that the trustee obtained the power which he has used in this particular manner. Assuming the trustee to have taken up the shares with his own money, it is clear that he could not have been indemnified out of the estate in the event of a loss. If he made a profit he must hand it over to the estate. The benefit, if there be one, must be treated as belonging to the particular trust. But how can a tenant for life claim this balance? It is not like the case of Paris v. Paris, ulí supra, where there was an extraordinary division of a sum of money by the bank of England among the proprietors of bank stock, beyond the usual dividend, and Lord Eldon there decided that it must be considered as capital. This is not a question of profits in respect of old shares, but of a new investment which the old shareholders get by the company's act of Parliament. It is a sort of good will. The tenant for life could not have compelled the trustees to take up this new stock, for the will did not authorize such an investment, and they would thereby have been committing a breach of trust. How is it possible then to treat it as income? I must consider the case as if the trustees had taken up this stock in their own names, and had been compelled by the court to give it up. It seems impossible to consider the whole amount of money obtained by the sale as profit belonging to the tenant for life. I must therefore hold that it is capital, but that the widow is entitled to the income Opinion by Kay, J. [Ch. Div. 55 L. T. Rep. (N. S.) thereof for life. Re Bromley; Sanders v. Bromley.
SURETY-FOR GOOD CONDUCT-CHANGE OF EMPLOY MENT. The bond recites that Hooper has been employed by the trustees of the Philadelphia Gas-works "to do and perform whatever kind of work, service, or duty which he may be assigned to by the said trustees or those in their employment." The conditions are that he shall well and truly perform, execute, and discharge "all and every employment, work, ser