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Felonious purpose or intent is seldom established upon these points, and they need not be discussed in
by direct evidence, but in the very great majority of detail.
cases is inferred from circumstances. Padgett v. State, It is true, as counsel assert, that the case against the
103 Iud. 550; S. C., 3 X. E. Rep. 377. Circumstantial accused depends in a great measure upon the testi-
evidence is mainly relied ou to prove this essential mouy of John Lynch, as a coufessed accomplice and a
elemeut in the crime of murder, but the character of man of bad character; but it is so strongly and fully
the evidence is never deemed to impair or impeach the corroborated upou all material points that we cannot
validity of the proof. It is likewise true of the ele- hold that the jury did wrong in giving it credit. A con-
ment of conspiracy, which is not uufrequently a coul- viction will be sustained upon the testimony of an ac.
stituent element of murder, that it is not usually complice where it is satisfactorily corroborated, and
proved by direct evidence, but is inferred from cir- that is the case here.
cumstances. Dr. Wharton says: “The actual fact of The first step in the offense of murder in the first
conspiring may be juferred, as bas been said, from cir-degree, the intermediate steps, and the final act con-
cumstances, and the concurring conduct of the defend-stitute but a single crime. There are indeed few
ants need not be directly proved." "Any joint action crimes that are not made up of many elements, or in
on a material point, or a collocation of independent which there are not many steps; but no matter how
but co-operative acts, by persons closely associated many elements or steps there are, there is but one
with each other, is held sufficient to enable the jury to crime. This is true of the present case. All the es-
infer concurrence of sentiment." 2 Whart. Crim. sential elements combined constitute but a single
Law (9th ed.), $ 1398; Whart. Crim. Ev., $ 698; 2 Bish. crime, and in legal contemplation that crime was per.
Crim. Proc., $ 227.

petrated where any one of the substantive and mate-
The circumstances developed by the evidence satis- rial parts of it were committed. If it were otherwise
factorily prove that the conspiracy wbich bound the a man in Martin county might deliberately conceive a
defendants together, as well as the purpose to kill, felonious purpose to commit a crime, send another
which constituted the boud of union between them, into Marion county to commit the overt act, and yet
was formed in the county of Martin; and these were go free, because it would not be said that all the ele-
undeniably parts, and very material parts, of the crime ments of the crime were present in either county. But
which was consummated in the adjoining county it is unnecessary to pursue this discussion, for it is
Suppose that two of the persons who assisted in the clear upon principle and authority tbat a crime is com-
seizure of Bunch bad not crossed the line dividing the mitted in the county where an act constituting an es-
two counties, is it not perfectly clear, upon principle sential element is done. Where the crime is com.
and authority, that they would nevertheless have been posed of several elements, and a material one exists in
guilty of murder? This conclusion canuot be success- either one of two counties, the courts of either county
fully controverted; and yet it can only be true on the may, under our statute, rightfully take jurisdiction of
theory that part of the crime was committed in Mar- the entire crime.
tin county, for unless this be so, it is clear that it We conclude therefore that the venue was well laid
could not be justly said that they participated in the in Martin county, and was satisfactorily proved.
crime. If what took place in Martin county was no Judgment affirmed.
part of the crime, those who did no more than con-
spire with the persons who fired the fatal shots, and
assist in placing deceased in their power, could not be NEW YORK COURT OF APPEALS ABSTRACT.
guilty; but it those acts should constitute part of the
crime, they are guilty, and the crime had its origin in APPEAL-UNDERTAKING-DISMISSAL OF COMPLAINT
Martin county, where the first steps toward the ac- -SUBSEQUENT REVERSAL-MISTAKE-AMENDMENT.
complishment of the common purpose was taken. (1) In an action of ejectment, defendants gave an un.
Our deliberate conclusion is that the acts done in dertaking that the plaintiff would account for and
Martin county did constitute part of the crime, and pay over the rent of the premises 'as the court may
that the court of that county had jurisdiction.

direct in the above entitled action." The complaint It is perhaps true that there is little direct testi- was dismissed, but on appeal the General Term remony that the purpose to kill was formed in Martin versed the judgment. On the second trial defendant county, or that the plan of seizing the deceased and was again successful, and on appeal it was again reconveying him to the cave in Orange county, was versed; and on the third trial, the undertaking har. there agreed upon; but the circumstances so strongly | ing been corrected on motion, the plaintiff was sucand directly point to this conclusion as to free the cessful, and judgment was given that the undertak. minds of all impartial men who give it study from ing be amended, and for the rental value of the premany doubt upon this point; and circumstantial evi- iseg. Held, no error; that the undertaking was valid dence, as we have seen, is all that is required. The and binding until a final judgment was reached. The evidence supplied by the circumstances leads to no appellants claim that the undertaking was merged in other reasonable conclusion, and we think that there and superseded by the first judgment which was renwas abundant support for the verdict of the jury upon dered dismissing the complaint. It is true that if that this point, and consequently ample evidence warrant- judgment had never been disturbed it would have ing the instructions of the court. Few cases can be been final, and would have absolved tbe obligors in more strongly made out tban is this one, for the evi. the undertaking from any liability. It was subsedeuce supplied by the circumstances and the testi- quently rerersed, and finally in the action a judgment mony given by the witnesses all unite in proving that was rendered in favor of the plaintiff, and then the unthe purpose to kill was conceived in Martin county; dertaking by its terms became operative. This was that the plan was there agreed upon, and there partly not a statutory, but a common-law undertaking, executed by making a captive of the deceased. The founded upon a sufficient consideration. There was a night journey across the line to the cave, and the final judgment in the action which directed the deshooting there, were but steps in the crime conceived fendant Emmerich to pay to the plaintiff certain rents, and partly carried into execution in Martin county, and that judgment was a direction and order of the and the court of that county committed no error in court within the meaning of the undertaking. It is assuming jurisdiction.

quite true that the dismissal of the complaint dissolves What we have said disposes of all questions as to the an injunction, and vacates and annuls an order of arjurisdiction, and as to the instructious of the court rest; but there is no analogy between such cases and


the case now before us. The uudertaking bound Em- manent aud durable, having no limitation except the merich to account for and pay over the rent of the future will of the Legislature. It will be a railroad premises as the court might direct, by any order or not less than a quarter of a mile, and may be made judgment which might be obtained in the action, and much longer, and serve, under the guise of an experiwhen a final judginent was obtained directing such ment, to fasten in the end a new road upon the city. payment the condition had arisen whicb rendered the Wherever the road runs it must necessarily take either obligors liable upon the undertaking. (2) Where by the fee of private owners or the property of abutters, mutual mistake the word “ plaintiff” was inserted for in all respects it is to be an elevated road. No prowhere “defendant" should have been, the court has vision is made for compensation to abutting owners or power to amend and enforce it. June 1, 1886. Clute owners of the fee. For these reasons we are of the v. Knies. Opinion by Earl, J.

opinion that the act under which the relator claims is

invalid. June 1, 1886. People v. Loew. Opinion by CONSTITUTIONAL LAW-PRIVATE OR LOCAL RAIL

Finch, J. ROAD ACT.-Chapter 554 of the Laws of 1885, providing for a new experimental section of elevated railroad

STREET RAILROAD-APPOINTMENT OF COMMISin the city of New York is a violation of the coustitu- SIONERS TO DECIDE AS TO NECESSITY OF.—The language tional provision that the Legislature shall not pass a of the Constitution that the court, upon application, private or local bill "granting to any corporation, as- may appoint commissioners to decide as to whether a sociation or individual the right to lay down railroad

street railroad shall be built where the propertytracks." The relator is authorized to build an experi- owners will not conseut, does not confer upon the montal section of elevated railway, not less than a

court a discretion to appoint or not as it shall deem quarter of a mile in length, upon some duly author- just or discreet. It confers authority to appoint when ized street of the city, with a view of inventing or dis

a case is presented contemplated by the Constitution. covering improvements in the system, which if adopted The court has not the discretion to grant or deny the will make the existing structure less offensive or in-application upon the question of the utility or necesconvenient. The section is to be not a model, but an sity of the proposed road. The determination as to actual operating railway, and yet is to be such wholly

whether the proposed road ought to be constructed for experimental purposes; not transporting passen- shall in the first instance be decided by commisgers or open for public use, but subject to the continu. sioners. Chapter 252, section 14, of the Laws of 1884, ous changes and trials born of new ideas, and made to is not unconstitutional on the ground that constitest their effectiveness and value. The length of this tutes a delegation of legislative power in requiring the experimental section beyond one-quarter of a mile is

consent of roads already occupying the street, before in the discretion of the relator. He may, if he

a street railroad can be built on such street. The opchooses, extend it to the exterior bounds of the posite view is urged upon two grounds: First, that city. Its size, character and mode of

the Constitution has prescribed the conditions upon struction are in like manner largely in his which street railroads may be constructed, and by imdiscretion, and he may thus obstruct an avenue of plication excludes the imposition by the Legislature of travel, or take away the property rights of abutters

conditions other that those prescribed therein; and without any provision for their compensation. No second, that a condition requiring the consent of extime is limited for its continuance. So long as the re-isting railroad companies to the construction or oplator is alive to invent and experiment he may test his

eration of another road is a grant of legislative power ideas upon the structure, build, or remodel, or change

to the company whose consent is required, and is it, unless the Legislature shall put an end to the en

therefore void. The first contention proceeds upon a terprise, or the relator determine that his improve- misconception of the object of the constitutional proment is complete. The law does not say to whom the vision, and of the rules governing the interpretation improvements shall belong, nor even that they shall

of constitutional restraints upon legislative power. be introduced on any existing or future elevated rail- The plain purpose of the Constitution requiring the way, and the result of the whole enterprise as planned

consent of the local authorities and of property. by the statute will only be that the city and the State owners to the construction of a street railroad was the will learn that some things in mechanical engineering protection of public and private interests against hoscan or cannot be successfully accomplished. Of course

tile and injurious legislation, and to prevent the apthe relator did not propose to thus educate himself propriation of highways to railroad uses by legislativo and the city, himself by experiment and the city by grant without consulting the interests of the locality. results, at his own expense or without compensation;

The consent of the local authorities and of propertybut the expense was to be defrayed out of a certain city

owners was therefore made necessary; but to meet the fund. That this arrangement was in fact an appro- contingency of an unreasonable opposition on the priation of the money of the city to the private bene- part of the property owners, a tribunal was authorfit of the relator, at least so far as the portion now

ized to be created to determine whether the public inclaimed to be payable is concerned, and that the ap

terests required the construction of the proposed pearance of a public purpose thrown about it is color

road, whose determination in its favor, when conable merely, is contended by the city, and has much of firmed by the court, was to stand as a substitute for probability to support it. The enactment violates such consent. But the Constitution, neither by ex. section 18 of article 3 of the Constitution which pro- press language nor by implication, abridges the legishibits the passing of a local or private bill “granting lative power over the subject outside of the matters to any corporation, association or individual the right particularly enumerated. It needs no citation of auto lay down railroad tracks.” The relator, if he be

thorities to sustain the postulate, thai except as retreated as a mere agent, the municipality itself, is au

strained by the Constitution, the legislative power is thorized by a bill, which is certainly “local,” if not

untrammelled and supreme, and that a constitutional " private," to build an elerated railroad in some street provision which withdraws from the cognizance of the of the city. Is is not a sufficient answer to say that

Legislature a particular subject, or which qualifies or the track thus to be laid down” is merely experia regulates the exercise of legislative power in respect mental and temporary, for the language of the funda- to a particular incident of that subject, leaves all other mental law is purposely very broad, and draws no

matters and incidents under its control. Nothing is such distinction. But this track, although experi

subtracted from the sum of legislative power except mental, is not temporary. As we have seen, it is per

that which is expressly or by necessary implication

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withdrawn. The Legislature is prohibited from grant- were not higher than 110, but interest was to continue
ing a franchise to construct a street railroad, except to be paid on such bonds by the ouna pany and added
upon certain specified conditions. But it is not pro- to the fund; but if the bonds could not be purchased
hibited from annexing further conditions not incon- at that price “no further payments shall be payable
sistent therewith, and whether other conditions are to said sinking fund "until it could be so used. Held,
necessary or proper is a matter resting in the wisdom that when said bonds rose above 110 the semi-annual
and discretion of the Legislature. The claim that the payments of $12,500 ceased, but the interest payments
provision in the act of 1884, requiring a company or- on the sinking fund must continue until the maturity
ganized thereunder, whose route is coincident with of such bonds. June 1, 1886. Wilds v. St. Louis, A. &
that of another road, to obtaiv the consent of the lat- T. H. R. Co. Opinion by Finch, J.; Rapallo, J., dis-
ter to the construction of the new road, before it can senting
proceed to construct or operate the same, constitutes

NEGOTIABLE INSTRUMENT-CONSIDERATION-COMa delegation of legislative power, is not, we think, well

POUNDING FELONY-DURESS.- The plaintiff seeks to founded. The act of 1884 was complete and operative

recover back the amount of a promissory note, given from the moment of its passage. The franchise ac

upon the settlement of a claim by defendant that quired by a company organized under its provisions

plaintiff's son, who was in defendant's employ, had at is perfect, according to the nature of the frauohise in

different times stolen his money. The complaint altended to be giveu from the moment the corporation

leged that the note was given in order to compound comes into existence. The legislative grant was con

and settle a supposed felony or misdemeanor, and that stitutional, and not absolute. The consent of another

the said note was extorted from the plaintiff and his company in a case where such consent is required con

wife by threats of public charges against the character fers no franchise upon the company by whom it is ob

of their son, and that the note was executed in fear of tained. The consent simply meets one of the condi

the same.

The plaintiff insists that.the facts in this tions prescribed by the statute upon which the right

case establish that the parties to this action did not of the company to construct and operate its road de

stand in pari delicto; that the defendant took undue pends. If consent is refused the law is not defeated,

advantage of the plaintiff and his wife--advantage of but remains perfect and complete as before. The com

the circumstances in which the plaintiff stood, surpany, upon consent being refused, is not deprived of

rounded as he was by his family; that this operated its franchise. A failure to obtain such consent simply

as duress and undue influence to coerce, and as the puts in abeyance its right to proceed with the con.

jury found, did coerce the plaintiff's will, and destruction of the proposed road until the obstruction is

stroyed the equality between the parties and induced removed; and this precise situation was within the

the plaintiff to give the note in question. While fraud, contemplation of the Legislature when the act was

duress and undue influence, employed in procuring a passed. The Legislature imposed the condition in its

contract for the payment of money, may vitiate and discretion for the protection of existing companies.

destroy the obligation created, and render it of no efIt may hereafter in its discretion remove the restric

fect, and the party who has been compelled to pay tion and abrogate the condition. But its right to im

money on account thereof may maintain an action to pose it is unquestionable. June 1, 1886. In ie Appli

recover the same, such a right does not exist, and cancation of Thirty-fourth Street Ry. Co. Opinion by

not be enforced where the consideration of the conAndrews, J.

tract thus made arises entirely upon or is in any way INDEBTEDNESS-STOCK OF NEW affected by the compounding of a felony. When this YORK CITY HELD COMMISSIONERS OF SINKING element enters into the contract, it becomes tainted FUND. - Plaintiffs ask that the defendants be enjoined with a corrupt consideration, and cannot be enforced. from issuing bonds of the city of New York for the The judge was requested to charge as follows: "That purpose of raising money for the dock department, on if the compounding of a felony entered into and the ground that the funded indebtedness of the city is formed a part of the consideration of the note, the in excess of that allowed by law; but it appears that plaintiff could not recover," and also “that if the mo. $34,000,000 of this is held by the commissioners of the tive of the plaintiff in giving the note was in part for sinking fund for the redemption of New York city the purpose of compounding a felony, he would not stock, making the balance of the indebtedness less be entitled to recover." Both of these requests were than ten per cent of the value of real estate. Held, refused. We think there was error in each of the rethat the stock so held by the commissioners of the fusals. Within the rule already laid down, if the consinking fund was not a deht against the city within sideration of the note was in any way affected by the the meaning of the constitutional prohibition (Const., compounding of a felony, or it entered into the same, art. 8, $ 11, as amended in 1884) forbidding a city of or such a motive actuated the plaintiff in any respect, over 100,000 inhabitants from increasing its indebted- then the contract was illegal, and should not be upness to more than ten per cent of its taxable real es- held. In such a case the contract was vicious and cor

Held also, that the amount required to pay the rupt, and in violation of law, as much as if compoundcity debt, if it all came presently to maturity, was so ing a felony had been the entire consideration. The much as is equal to its bonds or stock, not including element of illegality constituted a part of the contract, that held by the sinking fund. Laws of 1878, ch. 383, thus vitiating the whole, and it could not be rejected $ 4, relates to the funds and revenues of the city, and because duress, undue influence or threats were also to the management of the sinking fund itself, and not blended with it. We cannot agree with the doctrine to the effect of purchase upon the city stock bought by that if the plaintiff was influenced by the duress of the its moneys. April 30, 1886. Bank for Savings in the defendant, and at the same time both parties intended ('ity of New York v. Grace. Opinion by Danforth, S. the compounding of a felony, that they were not in MORTGAGE -- BY RAILROAD CONSTRUCTION

pari delicto. It is enough that the vice of compoundFUND – PROVISION. - The defendant, in

ing a felony was a part of the contract, operating upon order to gradually pay a first mortgage, included in

the minds of both parties, and thus placing them upon it certain provisions by which twice a year, out of the

an equality, to render the contract nugatory and of no net earnings of the road, $12,500 should be paid to

effect. June 1, 1886. Haynes y. Rudd. Opinion by trustees of the mortgage as a sinking fund for redemp

Miller, J. tion of the bonds; this to be deposited in a trust com- PARTNERSHIP-FIRM OBLIGATION IN INDIVIDUAL pany, and outstanding bonds bought so long as they TRANSACTION OF PARTNER-NOTICE OF PURPOSE-DEC.



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LARATIONS OF PARTNER.-(1) It was clearly established really without the scope of the partnership business,
that the notes in suit were made by defendant Cheney and hence, for reasons already stated, were incompe-
in the name of the firm, without the knowledge or con- tent as against Underhill. (3) The plaintiff did not
sent of his partner, and were delivered to plaintiff for take these notes as assiguee of Vail, or from Vail, in
the purpose of paying the individual debt of Cheney; such a sense that it can stand in his shoes; but the
that the plaintiff knew that Cheney was using his part- notes were made and delivered to Vail, and by him
nership paper to pay his individual debt, aud it was delivered, for Cheney, to the bank, to satisfy Cheney's
bound to know that he had no right to use it for that debt to the bank, and they had no inception until de-
purpose without the consent of his partner; and was livery to the bank. The mere fact that Cheney could
chargeable with knowledge that the notes were not testify that some small portion of the money ob.
wrongfully made and issued. Each member of a firm tained by him of the plaintiff was not used for the
is the general agent of a firm in relation to all the busi- firm was of no importance. They debt was in
ness of the firm, and can bind the firm in what he form the debt of Cheney, and if plaintiff claimed that
says and does in such business; but when one partner it, or any part of it, was created for the benefit of the
has a transaction with a third person, which is neither firm, it was incumbent upon it to prove that. The
apparently nor really within the scope of the partner- mere inability of Cheney to testify that no part of the
ship business, the partnership is not bound by his dec- money was used for the firm proved nothing. June 1,
larations or acts in the transaction. He cannot by his 1886. Union Nat. Bank v. Underhill. Opinion by
declarations make that a partnership transaction which Earl, J.
does not appear to be such, and which is apparently

RAILROAD-IN STREET-USED BY INDIVIDUAL FOR and really an individual transaction. In such a case the

PRIVATE PURPOSE-NUISANCE.-Defendants, under a third person has notice that the transaction is outside

contract with a street railroad corporation, took a of the partnership business, and he cannot rely upon

branch road abandoned by it, having flat rails, and rethe partnership credit. Byles Bills (7th ed.), 48; Far

constructed it with T rails, and used it exclusively for mers', etc., Bank v. Butchers', etc., Bank, 16 N. Y.

carrying their machines, etc., to their factory. Aeld, 125. Cheney, for some time prior to the giving of these

a nuisance for which plaintiff, an adjoining lot-owner, notes, had been dealing with the plaintiff. He drew

sustaining special injury, might restrain its use.

The checks on the East River Bank of New York, aud pro

right to construct and operate a street railway is a cured them to be cashed by the plaintiff, and these

franchise which must have its source in the sovereign checks, for the security of the bank, were indorsed by

power. The legislative power over the subject is also Vail. At one of the times when he procured the

subject to the limitation that the franchise must be plaintiff to cash a check, he said to its president: "My

granted for public, and not for private purposes, or at partner has, or should have, the money for this to-day;

least public considerations must enter into every valid but he has not got it, or cannot get it, and we want

grant of a right to appropriate a public street for railthis amount.” Subsequently other checks were drawn

road uses. The construction and maintenance of a by ('heney, and cashed by the plaintiff, and paid by

street railway by any individual, or association of inthe bank upon which they were drawn. Finally a

dividuals, without legislative authority, would consticheck for upward of $5,000 was drawn by Cheney, in

tute a public nuisance, and subject the persons maindorsed by Vail, and cashed by the plaintiff, which was

taining it not only to indictment, but also to a private protested for non-payment, and these notes were

action in favor of any person sustaining special injury. given to take up that check. What was said by

The contract furnishes no defense to this action. It Cheney to the plaintiff's president did not under the

was a scarcely undisguised attempt by the railroad circumstances authorize an inference that he was pro

company to transfer to an individual, or to the firm curing the money for the firm or in its business. All

for which he was acting, its franchise as common carof the checks were his individual checks, and not the

rier over the part of its route specified in its confirm checks, and the bank had no reason to infer that

tract, with a view and for the purpose of enabling the he was drawing his individual obecks in the firm busi

grantee to operate the road thereon as private propness, or to procure money on the firm account or firm

erty, and exclusively for the purpose of his private credit. The money was loaned on his individual

business. The contract was void as against public check, and on the credit of Cheney and the indorser,

policy; and assuming that the corporation defendant and not on the credit of the firm. It was in form and

has succeeded to all the rights of D. M. Osborne, or in fact Cheney's check, and the president of the bank

the firm of D. M. Osborne & Co., nevertheless the testified that he cashed the check on the responsi

contract constitutes no defense to the action. It bility of Vail, the indorser. We do not think that it

is plainly contrary to public policy that a franchise is a just inference, from the language said to have

granted for public purposes should be used as a mere been used by Cheney, that the checks were made in

cover for a private enterprise. The defendant corpo the business of the firm. But the declaration of Che

ration is in the situation of assuming to maintain and ney, made in a transaction which was really as well 18

operate a street railroad without legal authority, to apparently bis individual transaction, outside of the

the injury of the plaintiff; and the judgment below, firm business, could not make evidence against the

enjoining and restraining such use, was proper. June firm or his partner. Hickman v. Reiueking, 6 Blackf.

1, 1886. Fanning v. D. M. Osborne & Co. Opinion by 387; Thorn v. Smith, 21 Wend. 365. (2) During the trial

Finch, J.
Vail, called as a witness for the plaiutiff, was asked
this question: "Did you ever have any conversation
with Mr. Cheney in reference to his partnership in

ABSTRACTS OF VARIOUS RECENT DEconnection with indorsing checks on paper?" Then

CISIONS. this question was asked: “Was ang representation made by Mr. Cheney to you that any of this money AGENT - BROKERS - COMPENSATION WAGERING which was to be raised on checks indorsed by you was CONTRACTS-MARGINS.-In the buying and selling of for the purpose of the business of the house? It is stocks upon marging, the brokers employed to conNow claimed that the rejection of this evidence is duct such transactions (under the law of Pennsylerror. What Cheney said to Vail, not communicated vania) are regarded as being engaged in wagering conto plaintiff, was not competent or material. The dec-tracts, which the law of that State does not recognize, larations sought to be proved were made when Che- and they cannot recover in assumpsit for services renney was engaged in a transaction, apparently and dered, or excess over the margin. While the testi

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mony of the plaintiffs tends to show that the dealings the facts in this case. In the first case no vested
between them and defendant were bona fide, and that rights were interfered with. In the second case the
an actual delivery of the articles bought and sold by act of 1879, which was claimed to cure the defect com-
them for defendant was intended, and there were ac- plained of, was passed before the ejectment was
tual purchases and sales made, and actual delivery to brought. The last case only applies the doctrine held
the defeudant was not made because waived by him, by this court, that unless probibited by the Constitu-
or an equivalent under the rules of exchange was ac- tion, the Legislature has the power, when its action
cepted by him, the proof also shows that in the nu- will interfere with no vested rights, to enact curativo
merous transactions there was no actual delivery but statutes retroactive in their effect, for the purpose of
in a single instance; and the defendant testifies ex- validating proceedings taken in this class of cases,
plicitly that it was the express understanding between which would be otherwise irregular, when it has an-
him and plaintiffs that the stocks and grain were not tecedent power to authorize the tax. The difficulty
to be bought outright, and no delivery was to be in this case is, there has been a sale of property levied
made, but that he was simply to deal with them on upon, and the rights of parties became vested before
margins. If the market was in his favor, he would the curative legislation took effect, and such rights
gain: if it went against him, he would lose. That the cannot be interfered with in this manner. Mich. Sup.
total amount of margins put up by him, outside of Ct., June 10, 1886. Daniells v. Watertown Township.
mere profits from the fluctuations of the market was Opinion by Sherwood, J.
$1,700. He further testified, that while the transac-

CORPORATION LIBEL AND SLANDER OFFICER tions carried on within his margins of 5 and 10 per

KNOWLEDGE LIABILITY.- Where a newspaper is cent aggregated $800,000, some of the items of pur- owned by a corporation, one who is merely an officer chase and sale amounting to over $17,000, he was

thereof cannot be held responsible individually for a worth only $3,500; that he was a lawyer by occupa- libellous publication made without bis knowledge or tion, and resided next door to plaintiffs, who knew direction, but if he was engaged in the general_manhim well. This and similar testimony from him was

agement he would be liable. Penn. Sup. Ct., Feb. 1, competent to go to the jury. In cases like this, it is

1886. Nevin v. Spieckemann. Opinion per Curiam. competent to show that although in form the contract

CRIMINAL CONVERSATION PLAINTIFF'S is perfectly legal, it is in fact a mere guise under which a gambling transaction may be conducted. The

EDGE AND CONSENT.-A party may maintain an action true nature of a fraud upon the law and public morals

for criminal conversation against one who has had could not otherwise be exposed, and the evil of wagers

illicit intercourse with his wife, though subsequently, under the guise of a legitimate enterprise be pre- and with full knowledge of that intercourse, and bevented. This principle is well settled, apart from lieving it would continue, he agreed with the defend what the law in Pennsylvania may be. Grizewood v.

ant that his wife should remain with and keep house Blane, 11 C. B. 536; Benj. Sales, 542; Irwin v. Williar,

for him. N. H. Sup. Ct., March 12, 1886. Brown v.

[4 Atl. Rep. 110 U. S. 499. The plaintiffs seem to assume that if Spaulding. Opinion by Doe, C. j.

394.] the plaintiffs acted merely as defendant's broker in negotiating the contract, and as they are suing, not on CRIMINAL LAW-RAPE-DECLARATIONS the contracts themselves, but for services performed in a prosecution for attempted rape, it is error to and money advanced for the defendant, they do not admit in evidence the letter of the prosecutrix iu stand in the same position as if seeking to enforce the which she details the facts. In 3 Greenl. Ev., $ 213, it original agreement. But as laid down in Irwin v. is said: “Though the prosecutrix may be asked Williar, 110 U. S. 499, “where a broker is privy to a whether she made complaint of the injury, and when wagering contract, and brings the parties together for and to whom, and the person to whom she the very purpose of entering into an illegal agreement, complained is usually called to provo

that he is particeps criminis, and cannot recover for ser- fact, yet the particular facts which she stated are vices rendered or losses incurred by himself in for- not admissible in evidence, except when elicited on warding the transaction.” Md. Ct. App., May 14, 1886. cross-examination, or by way of confirming her testiStewart v. Garrett. Opinion by Ritchie, J. [4 Atl. Rep. mony after it has been impeached. On the direct ex399.]

amination the practice has been merely to ask her

whether she has made complaint that such an outrage CONSTITUTIONAL LAW - JRREGULAR ASSESSMENT

has been perpetrated upon her, and to receive only a CURATIVE ACT-VESTED RIGHTS.- Where property, simple “Yes' or 'No.' Indeed the complaint conlevied upon under an assessment irregularly made has

stitutes no part of the res gestæ; it is only a fact corbeen sold, aud the rights of parties have become vested

roborative of the testimony of the complainant; and before any curative legislation took effect, such rights cannot be interfered with by a sale under the levy. admissible.” This court has adopted the rule above

where she is not a witness in the case, it is wholly inThis court has already held in this curative legislation

announced. State v. Richards, 32 Iowa, 420. lowa to support tax proceedings, that if the Legislature has

Sup. Ct., June 21, 1986. State v. Clarke. Opinion by antecedent power to authorize a tax, it can cure, by a

Seevers, J. retroactive law, an irregularity or want of authority in leaving it intrusted to the officer to perform that

DEED - CONSIDERATION ANTECEDENT INDEBTEDduty; and that whatever the Legislature can NESS— EVIDENCE TO CONTRADICT RECITALS-VENDOR'S dispense with in advance it can dispense with LIEN--VOLUNTARY CONVEYANCE-RIGHTS OF CREDITretroactively, by enacting that the omission shall ORS.-(1) An antecedent indebtedness constitutes a not in validate or prejudice. People v. Ingham Co.

valuable consideration for a deed of conveyance from Sup’rs, 20 Mich. 95: Hart v. Henderson, 17 id. 218; a debtor to his creditor, Busey v. Reese, 38 Md. 270; Albany & Boston Min. Co. v. Auditor General, 37 id. Swift v. Tyson, 16 Pet. 19. But it is a settled princi391; Sinclair v. Learned, 51 id. 335. It is claimed by ple that when a sum of money is named as the considcounsel for the defendant that the decision of the C'ir- eration in a deed, proof of a consideration, different cuit judge is supported by the cases of Sinclair v. in kind, is inadmissible. Hurn's Lessee v. Soper, 6 H. Learued, supra, and People v. Ingham Co. Sup'rs, & J. 276; Betts v. Union Bank of Maryland, H. & G. supra; also by the late case of Anderson v. Santa 175; Cole v. Albers, 1 Gill, 412; Thompson v. Corrie, Anna, 33 Alb. L. J. 207. We do not think those cases

57 Md. 200. The doctrine enunciated by the Lord support the doctrine contended for, when applied to | Chancellor in Clarkson v. Hanway, 2 P. Wm. 204, and


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