« AnteriorContinuar »
vice, or duty which he may be assigned to as afore-parture from that rule in the computation of time. said," or which he may assume or undertake for or on Cook v. Gray, 6 Ind. 3:35; Brown v. Buzan, 24 id. 191; behalf of said trustees, and shall and will well and Newby v. Rogers, 40 id. 9. In the case last above truly “account for and to the said trustees for all cited it was held that where property is contracted to moneys, goods, chattels, rights,credits, property,and es- be delivered from the 15th to the 28th of a specified tate which may or shall come into his possession, power, month, both the 15th and 28th are to be excluded. See custody, or control by reason or on account of the also Fox v. Allenville, etc., Turnpike Co., 46 Ind. 31, said employment, work, service, or duty, or otherwise where it was held that in giving notice thirty days howsoever." All the parol evidence giren is insuffi- previous to the time when payments were to be made cient to limit or qualify the clear and expressive on gravel-road assessments, the first day of publicalangnage of the bond. It is not sufficient that the tion should be counted. See also IIill v. l'ressley, 96 principal and co-obligee may have represented its pur- Ind. 447, where a like ruling was made in relation to a pose to be otherwise than its language declares. No published notice of a sheriff's sale. In the case of one authorized to bind the trustees or the city of Phil- Tucker v. White, 19 Ind. 253, it was held that in deadelphia said or did any thing which will change the termining the expiration of the stay of execution legal effect of the obligation. The principal was not “from the time of signing the judgment,” the day on an officer for any specific term designated by law. He which the judgment was signed should be counted, was merely an employee, without limitation as to because execution might hare been issued on that day time. His term was co-extensive in time with his but for the entering of replerin bail. That was a case employment. The one continued as long as the other. “ where the reason of the thing,'' as stated in the case He was to perform all work to which he might be as- of Cook v. Gray, supra, controlled. Ind. Sup. C't., signed, from time to time, by his employers. His Sept. 14, 1886. Vogel v. Slate. Opinion by Zollars, J. duty and obligation were to account for and par over
TRESPASS-QUARE CLAUSUM-MEASUREOF DAMAGES. all moneys which came into his hands, possession, or control. He failed to so account and pay over. The
--In trespass quare clausum for felling the defendant's learned judge committed wo error in refusing to open
trees across the line feuce, and covering the plaintiff's
land with brush, the measure of damages is not cone the judgment which was entered on the boud. Penn.
fined to the expense of removing the brush, nor is it Sup. Ct., Apr. 12, 1886. Lane's Appeal. Opinion by
limited to the value of the land incumbered. The exMercur, C. J.
pense is a fact to be considered in connectiou with TIME-COMPUTATION.--Appellant and M. were op
other evidence; such as the value of the land before posing candidates for the office of township trustee.
and since the cutting, the uses to which it was adapted, M. held a commission as justice of the peace for a
and the extent to which the plaintiff had been determ of four years from April 17, 1882. The term of
prived of the use. The damages may be more, and trustee began April 16, 1886. Ileld, that M.'s term as
they may be less, than the cost of removing the brush. justice of the peace did not expire until midnight of
The plaintiff is not obliged to remove it. The defendApril 16, 1886; that he was therefore ineligible, and
aut may, with the plaintiff's license, remove it. In appellant having received the next highest number of
the assessment of damages for land taken for a highvotes, was entitled to the office. The two material
way, the question is not what the value of the land and controlling inquiries are, when did M.'s term as
taken is, but what is the damage to the whole tract by justice of the peace expire? and when did the term of
the taking of a part ? Special benefits to the owner township trustee begin? The record shows nothing
from the construction of the way, not shared by as to the beginning of M.'s term as justice of the
others, may be considered; also the increased expense peace, except wbat is shown by his commission from
of fencing, and any injury to the rest of the land the governor. That commission, as we have seen,
from the taking of a part. Adden v. R. Co., 53 N. H. fixed his term at four years from the 17th day of April,
413. In this case the injury may not have been con1882. If the 17th day of April was a part of the term,
fined to the strip covered by the brush, but may bave the term ended at midnight of the 16th day of April,
extended to the whole tract. 16 A. cuts down my 1886. If the 17th is to be excluded, the term ended at
sbade trees, my damages are not necessarily limited midnight of the 17th day of April, 1986. Wells y.
to their value for wood or timber. If he cuts and carWells, 6 Ind. 447. The general rule may be said to be,
ries away my timber trees, if they were worth more to that when time is to be computed from a day upon
grow than to him as timber, my damages are not ne. which an act is done, that day will be excluded. Hath
cessarily measured by their value as timber. Foote v. away v. Hathaway, 2 Ind. 513; Swift v. Tousey, 5 id.
Merrill, 54 N. 11. 490, 494. “The owner may some196; Womack v. McAbren, 9 id. 6; Martin v. Reed, id.
times be entitled to greater damages for the destruc. 180; Blair v. Davis, id. 236; see also Ilill v. Pressley, 96
tion or conversion of property than its market value; id. 447; Benson v. Adams, 69 id. 333; Best v. Polk, 18
he may be entitled to damages for the consequential Wall. 112. There is a section of the Code which pro
injury to other property, or to his feelings, for intervides that “the time within which an act is to be done
ruption of business, or loss of comfort and health." as herein provided shall be computed by excluding
Cocheco Co. v. Strafford, 61 N. II. 455), 481. See also the first day, and including the last." Rev. Stat. 1881,
Holt v. Sargent, 15 Gray, 102; Mayo r. Springfield, 138 $ 1280; Faure y. U. S. Exp. Co., 23 Ind. 48; Noble v.
Mass. 70; Jones v. Gooday, 8 Mees. & W. 146; Day v. Murphy, 27 id. 502; State v. Thorn, 28 id. 306; Byers
Woodworth, 13 How. 368; and Mayne Dam. (Wood's v. Hickman, 36 id. 339. The above section of the stat
ed.), S 569. N. II. Sup. Ct., July 30, 1886. Hutchinson ute evidently has reference to matters properly falling
v. Parker. Opinion by Smith, J. within the Code of Civil Procedure, and not to matters in no way connected therewith, although some of WILL- TRUST FOR CHARITY - UNCERTAINTY.-This the cases seem to give it a broader application. See case involves the coustruction of the following clause Towll v. Hollweg, 81 Ind. 154. It must be apparent of a will: “I hereby authorize and empower my exthat the above section of the Code bas no application ecutris to disburse and give (in furtherance of my to the office of justice of the peace.
Neither the wishes expressed to her at sundry times) from my esoffice, nor any thing relating to it, is provided for in tate, to such worthy persons and objects as she may the ('ode. The circumstances and reason of particu- deem proper, such sums as it is her pleasure thus to lar cases may be such as to require that they shall not appropriate, not to exceed in all the total sum of five be governed by the general rule as above stated. The thousand dollars." Is this a valid gift? It clearly is terms of a contract may be such as to require a de- not a trust. There is no person or object named, or
even hinted, as the cestui que trust. There is no person who could claim in a court of equity an enforcement of the trust. It is a case where, if the $5,000 bad been given to the executrix to be disposed of at her pleasure, the law would regard the property given as vested in her, while the direction for its use was merely precatory and of vo legal force. In such a case the law regards the legatee as taking the gift absolutely, and with no enforceable duty as to its use. But there is no gift to the executrix. She has merely a power of distribution. Nothing vests in her. It is precisely as it no disposition whatever of the fund had been suggested, but the executrix had been empowered to direct how $5,000 of the estate should go. It is, in other words, an authority given to a third person to direct how a part of the testator's property should be disposed of. If good for a part of the estate, it would be good for the whole. Would then a will in the following words be a valid one: “I direct that A. B. shall declare how all my property shall be disposed of." The supporters of this will say that such a will would be valid, and quote in support of their claim a dictum of Judge Seymour in Wait v. Huntington, 40 ('oum. 11, as follows: “It is familiar law that a testator may confer on executors and on others an absolute power of appointment and disposition over his property.” But the case itself did not call for this remark, nor involve the question of its correctness, and it seems hardly probable that the learned judge intended that it should have the wide application given it. There is a singular absence of all reference to this question in the text-books, and we have found no decisions that bear with any directness upon it. In the absence of such authority we should regard such a will as of no legal effect. We think the law never intended to accept as a valid will 80 vague and indefinite a direction, such a mere authority. It is in no proper sense a will. It indicates no intent whatever on the part of the testator as to the disposition of his property. It is really & public declaration that he has no such intent. It is a traresty of terms to call such an instrument a will. The bequest being inoperative, the $5,000 appropriated by it falls into the residue. This is the well-settled rule in the case of void bequests of personal property. Greene v. Dennis, 6 Conn. 29:2; Thayer v. Wellington, 9 Allen, 295; James V. James, 4 Paige, 115. Coun. Sup. Ct., Dec. 14, 1885. Bristol v. Bristol. Opinion by Loomis, J.
would be absurd to read this will as giving bequests over in case his daughter died after eighteen, as she did. Then again the very fact that he made no disposition over in case she died after eighteen is a circumstance of 10 little weight to show that he intended his estate to vest in her at all events on her becoming eighteen. 2 Redf. Wills, 606. In England a gift over in one event is generally regarded as favoring vesting in all other events, on the ground that the gift over being made to depend upon particular events, the presumption is that in every other event the estate was intended to remain in the first taker. But we think, as said by Judge Redfield, that this form of argument is more forcible when there is no disposition over, for then it may well be said that the testator intended the estate to vest in the last named donee. The trustees were the brothers and a brother-in-law of the testator. He made them his executors, and reposing confidence in them, was willing to leave it to them as trustees to say when and to what extent his daughter, after, after becoming eighteen or marrying, should be permitted to come into the actual possession and enjoyment of bis estate; but we do not think he intended to leave it to them to say whether she should ever have it at all or not in interest. He had willed “in trust for her," and the discretionary clausetreating it as valid, and as to which see Gray Perp., $ 120-was inserted for her supposed benefit, and more by way of giving directions to the trustees as to the time and manner of payment than as importing con dition or contingency. And this idea of a trust is im. portant, and well nigh decisive of the case. The remarks of Lord Justice Turner on this subject in Oddie v. Brown, 4 De G. & J. 179, 193, are exceedingly perti. nent. He says: “When, as in this case, funds are given to trustees to be held by them upon trust, directions must of course be given to them as to the time and manner in which they are to deal with the funds in favor of the persons for whose benefit they are intended. Words therefore that in other cases might import condition or contingency may in such cases be used for a wholly different purpose, namely, for the purpose of conveying the necessary directions to the trusteess. The court therefore in such cases looks, I apprehend, more to the substance of the gift than to the words in which it is expressed. It considers for whose benefit it was made-who were intended to be the cestuis que trust." See also Saunders v. Vantier, 1 Cr. & Ph. 240. (2) It is not enough to say that the Court of Chancery would not have controlled the judgment and discretion of these trustees further than to bare compelled an honest exercise thereof, according to Bacon v. Bacon, 55 Vt. 243; Sharon v. Simons, 30 id. 458; French v, Davidson, 3 Mad. 396, and Walker v. Walker, 5 id. 424; for that is quite another question from saying whether this legacy vested, and is not at all determinative of it, for the legacy might have vested and yet the legatee not have been entitled to the possession and full enjoyment of it. Citing Churchill v. Lady Speake, 1 Vern. 251; Hone v. Van Schaick, 20 Wend. 564; Leeming v. Sherratt, 2 Hare, 418; Millard's Appeal, 87 Peun. St. 457; Fox v. Fox, L. R., 19 Eq. 286; Watson v. Hayes, 5 Myl. & Craig, 125; Harrison F. Greenwood, 12 Beav. 192; Rouse's Estate, 9 Hare, 649; Wynch v. Wynch, 1 Ax. 433; Pink v. De Thrusey, 2 Mad. 157; Malcolm v. O'Callaghan, id. 317; Atkins v. Hiccocks, 1 Atk. 500. Vt. Sup. Ct., Aug. 2, 1886. Weatherhead v. Stoddard. Opinion by Rowell, J.
VESTED OR CONTINGENT ESTATE.-No estate will be held contingent unless very decided terms are used in the will, or is it necessary to hold the same contingent in order to carry out the other provisions or implications of the will. Thus the testator bequeathed his estate to trustees in trust for his daughter. They were directed to apply if necessary the whole income to ber education and maintenance, and when she should arrive at eighteen or be married, it was discretionary with them whether or not to deliver to her the whole estate. In case the legatee died before eighteen the estate was disposed of by bequests
She was never married, and died at twentythree, with the funds in the possession of the trustees. Held, that the daughter took a vested estate at least when she was eighteen, which upon her decease passe to her devisees. When a man sits down to dispose of his property by will, it is fair to presume that he does not intend to die intestate nor to become intestate after death, and so courts lean against intestacy. Now here the testator made no bequests over except in the single erent of his daughter dying before eighteen. If then she did not take a vested interest at least at eighteen, the testator became intestate at her death, and his estate is left to be distributed by law; for it
NEW BOOKS AND NEW EDITIONS.
SHIRLEY'S LEADING CASES. The third edition of this well-known work is an improvement upon the former editions, in that “the tone
of flippancy and jocularity, modified to some extent sive and accurate. It should prove a useful hand-
RANDOLPH ON COMMERCIAL PAPER.
A Treatise on the Law of Commercial Paper, containing a
full statement of existing American and foreign statutes,
together with the text of the Commercial Codes of Great MAXWELL'S RIGHTS AND OBLIGATIONS OF MAR
Britain, France, Germany and Spain. By Joseph F.RanRIAGE.
dolph, of the New Jersey bar. In three volumes, with apThis is a small-paged, limp book of 114 pages, pub
pendix. Jersey City, N. J. F. D. Linn & Co. lished by L. K. Strouse & Co. of New York. The rea- This is a very serious and important undertaking. son of its being is hard to guess, unless it may be to If anybody had asked us, with a view to the publi. air certain rhetorical and ethical observations on cation of such a work, whether there is room and woman. It seems to be addressed more to the laity would probably be a demand for it, we should have than the legal profession. But the authors ought said no. In view of the recent great work of Daniel, to be more exact than to tell them that husband and and other works on the subject, we should have supwife, by the New York Code, may “testify for and posed the field pretty thoroughly occupied. We cannot against each other in all cases of a criminal nature. until this work shall be completed give any thing more But in such cases they are admitted solely to prore than an impression of what it so far is-not even a the fact of marriage in case of bigamy.”
prophecy as to what is to be forthcoming. We have formed a favorable idea of the present volume. It is
certainly exhaustive, concise, and well arranged. The BindLE AND BULLARD ON SUPPLEMENTAL PROCEED
table of cases cited covers forty-five double-column
pages, and the index covers 150. The text covers 612 The third edition of this work has grown to more
pages in large type. These facts sbow that there is no than 600 pages, and is a handsomely printed work, padding, and erince a vast amount of hard work. So published by L. K. Strouse & Co., New York. It pur
far, we should judge that the author is less apt to exports to be adapted to all States having a practice sim. press his own opinions than Mr. Daniel. He refers ilar to that of this State, and it appears to be well ar
constantly to Chitty, Story, Byles and Daniel. giving ranged. Certainly it is large enough to be exhaustive. their respective views when they disagree. The notes It has forms.
are copious, and the text is not overloaded. Judging from this installment, we should expect that the work
would prove a useful addition, if not a substitute for BREWER AND LAUBSCHER'S Ohio CORPORATIONS. the ponderous volumes already weighing down our
This volume of some 408 pages, published by Robert groaning shelves. The inclusion of the statutes and
codes is a valuable and distinctive feature.
COURT OF APPEALS DECISIONS.
'HE following decisions were handed down Fricorporations. It seems to be exceedingly well executed.
day, Oct. 29, 1886: The authors state in the preface that in 1883, 1334 com- Judgment reversed, new trial granted--People, repanies were found in Ohio, with a capital of 3:209,000,- spondents, v. Lipman Arensberg, appellant.-Judg000, and since 1851 over 10,000 have been formed, with ment affirmed with costs-In re petition of Cyrus W. a capital of more that $2,000,000,000.
Swan et al., for draining, etc.; Rose F. Langlois, adm'x, respondent, v. President Delaware and Hud
son Caval Co., appellant; Mary J. Dewey v. Same; GIBBON'S AMERICAN CRIMINAL REPORTS.
John A. Deraismes, executor, respondent, v. LauThe fifth volume of this series is published by Calla- rence Emis, appellant; Henry A. Weeks, ind, and as ghan & Co., Chicago, contains some 700 pages, and is a
adm'r, respondent, v. Charles H. (strander et al., exfair selection of cases, with some notes.
ecutors, appellants.--Judgment of Supreme Court reversed, and that entered on report of referee af
firmed with costs-John Hone, ex'r, respondent, v. POMEROY'S CONSTITUTIONAL LAW.
John Watts de Peyster, ind. and as ex'r, appellant. This is the ninth edition of this excellent introduc- -Orders of Special and General Terms reversed and tory work, revised and enlarged by Edmund H. Ben- motion denied-Alfred N. Beadleston, appellant, v. nett, and published by Houghton, Mifflin & Co. It is Mary E. Beadleston, respondent. —Order affirmed perhaps ihe best introductory work for the law stu
with costs-John S. Stubbs and another, ex'rs, v. Eddent.
ward C. Ripley, impleaded, etc.
The court took a recess until November 22, 1886.
PATTERSON'S RAILWAY ACCIDENT LAW.
preme Court of the United States; and as is tbeir cus- said the other. "Wait till the lawyer comes out.
“I passed some .queer,' and here I am in prison, tive mansion and filed into the blue room, they were
all on accounterfeit,” he sighed.-Life. the observed of all observers. The attorney-general A physician's startling views of utilizing capital was with them, and he too is a good sized man. When prisoners are thus told by the Chicago Journal: the President joined the group in the blue room the What we need now," he said, “is a legal enactment party of big men was complete, The judges did not turning over criminals convicted of heinous capital remain long. They simply paid their respects and offenses to the medical fraternity for experimentation drove off again to the capitol.
on the vital forces. Of course I never expect to see
this done. The sentimentalists would rather see a "Not long ago a lawyer from one of the western States, who had never visited Washington before,
million good people languish and die for want of med. came here to argue a case before the Supreme Court," subjected to surgical operations which would prove
ical skill than to see one cut-throat like Frank Raud writes the Washington correspondent of the Boston
fatal. The truth is that this would be less liable to Traveller. “He created a sensation which made the
the charge of inhumanity than the vivisection of the chills creep up and down the backs of the venerable
lower avinals. It would pain me exceedingly to have justices who bad to listen to him. When he came into court he wore a red flannel shirt, coarse woolen
a dog subjected to torture, because the dog is an in
nocent and affectionate animal, whereas some of the clothes and cowhide boots. His hair hadn't seen the
men we now hang deserve a worse fate. Then, too, scissors for several seasons, and the razor was a stranger to bis face. At first he was taken for a crank, but if there were only a law turning over the worst capital
we would not have to keep up the practice for years. when the case was called the court soon found out
criminals of the year 1886 to us for the purpose, the that he was a man of great ability. The question at issue was involved in a patent suit, and was quite in
benefit to suffering humanity could not be estimated. tricate and complicated. It took the country lawyer the brain and nerves.”
The chief subjects that we wish to elucidate concern two days to argue the case, and he finally won it. After adjournment ou the first day one of the court Recently in Kern county, California, a man charged officers suggested that a white shirt, collar, cuffs, and with murder was held by the Superior Court in $500 cravat would make an improvement in bis personal bail. A few days after a prisoner was before a justice appearance. The lawyer told him that he didn't own charged with stealing a suit of clothes. He was held
The next day however he wore a paper collar to answer, and when the question of bail came up the about the width of an ordinary cuff pinned on to his justice said, after figuring awbile: “The judge of the red shirt."
Superior Court releases a man who is charged with
murder on $500 bail. I think, after comparing the de. In Mullin v. Insurance Co., 58 Vt. 113, the court
grees of crime, I will give you a chromo and let you said: “It is easy to see that respecting an inventory go." of household effects destroyed by fire the wife would, in most cases, be much better informed as to articles In the Circuit Court Monday, Judge Logan presidlost than her husband. What man of us, under such ing, an incident occurred of more than usual interest. circumstances, could inventory the linen, bedding,
A case involving a small amount (an appeal from a jus. crockery, and a thousand and one articles in his house, tice), in which Mr. Harvey, a well-known operator in if they were burned, without the aid of his wife? But marble in this county, was a defendant, was on trial. if the plaintiff was compelled to get the aid of his wife
When Mr. Harvey was called to the witness stand, Mr. he assumes all respousibility for her errors as he would Green, of counsel for the plaintiff, asked to put bim for his owu.''
on his voir dire, when the following substantially oc
curred: Counsel-Mr. Harvey, do you believe in the That must be a pious firm of lawyers in St. Louis- existence of a God? Witness—(Evidently surprised Thoroughman, Christiau & Priest.
and thinking a moment)-I do not believe in God, but In Sawyer v. Hebard, 58 Vt. 375, it was held that a
I do believe in God, the power that controls the unison-in-law cannot recover for boarding bis mother-in-rewards and punishments? Witness-I beliere that
Counsel-Do you believe in a future state of law twenty-six and a half weeks in all, on five different occasions during four years, the stays or visits be
every human being suffers in this life for every viola. ing made sometimes at the suggestion of her daughter,
tion of natural and moral laws. Not accepting the sometimes of the physician, when the auditor was un
Bible as a divine revelation, I know nothing about the able to find that she expected to pay. It was neces
future. I do not know whence I came or whither I
am going. Therefore I cannot say that I have any be. sary to prove either an express contract or a mutual expectation of the parties that the board should be
lief as to my future state. Counsel-Do you believe paid for. The court said: “It would be a crime
in a conscience? Witness-Most certainly I do. I against nature and humanity, to give to all the cour
believe that every sane man has an innate sense of tesies, favors, and visits that are exchanged between
right and wrong to guide his conduct. The Courtparents and children, the mercenary quality of dol
Mr. Harvey, do you believe in the binding obligation lars and cents. The courts have universally refused
of an oath in a court of justice requiring a witness to to give such a quality to such transactions, and have deliberation, held, that the witness was not competent
tell the truth? Witness—I do. The court, after some especially guarded against allowing the surviving party to change such transactions into one of dollars
to testify, and he was directed to stand aside. Exand certs against the estate of the deceased party."
ception was taken by Capt. Kain, counsel for defeud
ant, and an appeal taken to the Supreme Court. We Two pick pockets saw a gentleman receive a large understand there are several old decisions regarding sum at the bank, and followed him for some time to the competency of “atheists," "infidels," and "free get a chance at it. Finally the watched turned into a thinkers" as witnesses, but that we have po Supreme lawyer's office, and one of the watchers said: “That Court decision covering precisely the state of facts setiles it. He's gone. Come along.” “No! no!" presented in this case.- Knoxville (Teun.) Journal.
Cockburn, Lush, Quain, Archibald, Kelly, Cleasby The Albany Law Journal.
Willes, Byles, Martin, James, Mellish, Thesiger,
Holker, Amphlett, Hall, Hatherley, Malins, Cairns, ALBANY, NOVEMBER 13, 1886. Jessel, Phillimore, Watkin Williams; and of Kars
lake and Benjamin, who were not judges. This is CURRENT TOPICS.
a very entertaining book, written in a light, rapid,
vivid style, evincing strong powers of discriminaTHE judicial scramble is over for a few days, and tion, and the greatest boldness and independence. Judge Peckham is successful by a majority of The author's favorites are Cockburn, James, Cairns
The sketches are enlivened by many
“The Somersetshire Poacher?—
" It is my delight on a shiny night,"
day went to take a "view" in elaborate boots and
gaiters, and how he left a million dollars; how Ben“A Generation of Judges, by their Reporter," is jamin tied up his papers, dropped his argument, the title of a little book of biographical sketches of I and left the House because Selborne said "non