Imágenes de páginas

default.Van Buren v. Peterson, Wash., 185 Pac. for injuries at crossing.-Langley y. Southern 572,

Ry. Co., S. C., 101 S. E. 286. 61. Judicial Sales-Validity.-Neglect of an 73.- Trespasser.-One taking a lunch to an officer making a sale directed by a judgment to employe of a corporation working on its premgive notice required by law does not affect the ises becomes a trespasser if, on his return, he validity of the sale, but the party aggrieved has enters on grounds without occasion for doing so. his remedy against the officer for any injury --Southwestern Portland Cement Co. v. Bustilsustained by reason of such neglect.-Williams los, Tex., 216 S. W. 268. v, Reed, Cal., 185 Pac. 515.

74. Parent and Child-Interest of Child. The 62. Landlord and Tenant_Annexation to

law places the parents of a married child on a Freehold.-As between landlord and tenant,

much more favorable basis than that of a strangmanure produced upon the premises is the prop

er to the family relations, in actions for aliena. erty of the landlord, in which the tenant has no

tion of affections, and all presumptions must be interest, and for removal or sale of which, with

that the parents will act only for the best interout the lessor's consent, the tenant is liable,

ests of the child.---Bourne v. Bourne, Cal., 185 unless custom or usage of the neighborhood,

Pac. 489. known to the parties previous to the agreement, 75. Partnership-Partnership Assets. renders the contract otherwise.Stuart v.

itors of a partnership have the first claim on Clements, Ky., 216 S. W. 136.

collections or assets of the firm.- Kreutzer & 63.- Attornment.--Where the landlord parts

Wasem v. Reese, Ia., 174 N. W. 935. with his title pending the lease, the tenant

76. Principal and Agent-Scope of Agency.thereupon and by operation of law, in the ab

That an agent of a building contractor was sent ence of any reservation to the contrary, becomes to a town to superintend the construction there the tenant of purchaser.- Stewart Bros. v. Cook,

of buildings for a client of the contractor, and Ga., 101 S. E. 304.

to purchase the labor and material therefor, did 64. Limitations of Action-Tolling Statute.

not give him authority, actual or apparent, to Statute of limitations, having commenced run

enter into a contract for the construction of ning against a claim during the lifetime of the

another building of a different character and for maker, is interrupted only from the date of his

another person.Arkadelphia Milling Co. v. death until the appointment and qualification of

Campbell, Ark., 216 S. W. 20. a legal representative, and then continues its

77. Rape Attempt. The intent is an essenonward course, unless stayed by statute.-Davis

tial element of the crime of an attempt to comV. Davis' Estate. Mont., 185 Pac. 559.

mit rape, Broaddus y. Commonwealth, Va., 101 65. Malicious Prosecution-Advice of Coun

S. E. 321. sel.-That the prosecution was instituted on the

78. Reformation of Instruments-Mistake. advice of counsel may be considered by the jury

A written contract will not be reformed in on passing on cases of malice.-Thornton V.

equity because of a mistake, in the absence of Story, Ga., 101 S. E. 309.

fraud, unless it is mutual, that is, common to 66. Master and Servant-Fellow Servant.-

both parties, and each under the same mistake The negligent act of a fellow servant becomes

as to its terms.-Giammares v. Allemannia Fire of the master, where the servant

Ins. Co., N. J.. 108 Atl. 237. is doing an act with the knowledge of the mas

79.- Mistake by Scrivener, _A mistake by a ters' foreman and practically under his super

scrivener in drawing an instrument which would vision.-Flummer'g. Adm'r v. Tri-State Tele

warrant a reformation applies to mistakes of phone Co., Ky., 216 S. W. 133.

law as well as mistakes of fact, and a contract 67.- Safe Place. The law imposes upon all

can be reformed where a scrivener uses a word emplovers the duty of exercising ordinary care

in a mistaken sense.-Benson v. Ashford, Tex., to provide their servants with a reasonably safe 216 S. W. 283. place to work, a duty which is a continuing one. 80. Sales-Breach of Contract. The question - Citizens' Telephone Co. v. Prickett, Ind., 125 of waiver of breach of sale contract is mainly N. E. 193.

one of intention, and such intention cannot be 68.- Special Finding.-A finding that a hand

inferred from acts performed under circumbrake on a railroad car was defective did not stances such as renders the acts involuntary or override a general verdict which was necessar compulsory.--Mayhew & Isbell Lumber Co. v. ily based upon a finding that the hand brake

Valley Wells Truck Growers' Ass'n, Tex., 216 was inefficient.-Thayer v. Denver & R. G. R. Co., S. W. 225. N. M., 185 Pac. 542.

81.- Election.-The seller having treated the 69. Mechanics' Liens-Priority of Contract. contract of sale of live stock as at an end by Though there was no privity of contract be taking back the stock after breach by the buyer, tween plaintiff subcontractor and owner of his election precluded him from thereafter suing property, or any of the defendants other than

for the purchase price.-Murphy v. Hellman the contractor, defendants would, if they had by

Commercial Trust & Savings Bank, Cal., 185 Pac. act or representation willfully led plaintiff to 485. forego his rights of lien, be stopped from setting 82.----Offer and Acceptance.-A gratuitous up failure to file notice of lien within the stat offer to sell may be accepted within reasonable utory time; but merely standing by and permit time before withdrawal.-Caldwell v. E, F. ting plaintiff to sleep upon his rights does not Spears & Sons, Ky., 216 S. W. 83. estop defendants.-Pence v. Martin, Cal., 185 Pac. 83.- Rescission.-In seller's action for price 503.

of lumber, whether seller's letter and telegram 70. Monopolies—Independent Agreement.

of same date, to buyer, sent upon buyer's comContract. whereby plaintiff agreed to sell seed plaint that the lumber received did not conform to defendant, held independent of agreement to contract, rescinded the contract, or made an between defendant and others to suppress and unaccepted offer to rescind on buyer reloading restrain competition in trade of buying and sell and rebilling lumber, as directed. held for jury. ing seed, so that, where plaintiff before date ---American Hardwood Lumber Co. y. Millikenfixed for performance confessed breach and James Hardwood Lumber Co., Ark., 216 S. W. 23. agreed on the amount of damages and paid the 84. Specific Performance-Judicial Discretion. same, he cannot recover payments made; the -Specific performance of contract for purchase contract of sale not being in restraint of trade of land may not be arbitrarily refused, but in under Ky, St., $ 3918.--Scobee v. Brent, Ky., 216 the exercise of a sound legal discretion should S. W. 76.

be granted in the absence of some showing that 71. Mortgages-Inconsistent Duties. The to do so would be inequitable.-Rourke v. Petereffort of a trustee in a trust deed, as attorney son, Ia., 174 N. W. 945. of beneficiary, to collect the note secured thereby 85. Wills-Remainder, - Testamentary lanwas not incompatible with his duty as trustee guage creating remainders will be construed to to make a sale in the event of its nonpayment. create vested and not contingent if the language Thornton v. Goodman, Tex., 216 S. W. 147.

is consistent with such an intent.--Dowd v. 72. Negligence - Concurrent Negligence,

Scally, Ia., 174 N. W. 938. Where automobile driver in driving automobile 86.- Widow's Election. The executor canto a depot heeded the directions of occupants, not claim an estoppel against the widow's elecwho wanted to board a train, the management tion to take against the will, because he paid of automobile tyas the concurrent act of driver monthly sums to her for support of herself and and the occupants and the negligence of driver children, where no rights of third parties have in driving at excessive speed was imputed to intervened.-In re Beck's Estate, Pa.. 108 Atl. an occupant, precluding recovery from railroad 1261.

Central Law Journal. of the debtor's property by providing that it

should not be sold upon judicial process for

less than two-thirds of the value of his inST. LOUIS, MO., FEBRUARY 20, 1920.

terest as fixed by the appraisers.” Hart v.

Beardsley, 67 Neb. 145, 93 N. W. 423. APPRAISEMENT OF REAL ESTATE FOR JU


jurisprudence contemplates that debtors

shall be unduly harassed, beyond any reaIn a standard authority, Freeman on sonable necessity, in the collection by credExecutions, the first edition of which ap itors of the debts they hold against them. peared in 1876 and the third in 1900, at Therefore, the right to prescribe for sales, $ 284 it is said: “In a few of the states one upon due and proper notice comes, is within of the steps toward a sale of the property the regulatory power of the state. If levied upon is to procure its appraisement.” the state, however, should provide for the The author's notes refer to decisions only in taking away of one's property under a judifour or five states. In some other states cial sale with little or no notice of publicity, there are statutes which require appraise- it might well be deemed an attempt at ment in the sale of decedents' property by confiscation. their legal representatives. The purpose However, there have been enacted in of such a requirement has been said, in one many states provisions for notifying the of the latter states, in a guardian's sale, “to public, and of parties directly interested prevent the sacrifice to which the estates of in a proposed sale under judicial process. minors might be exposed if courts were left Generally speaking, provision has not been to rely upon the interested representatives made against property being sacrificed, of sharks and speculators as to value.” where all statutory requirements have been Strouse v. Drennan, 41 Mo. 1. c. 298. observed. The statute assumes that by such

In 24 Cyc., page 14, it is said that: "In observance a sufficient proportion of the a number of states the statutes require an general public will be in attendance at the appraisement of property before a judicial sale and prepared to bid, as would bring sale thereof, and either forbid a sale for about fair competition among would be less than a certain proportion of the ap purchasers. praised value, or give the owner the right of This assumption is, we think, violently redemption for a certain time if a specified | opposed to the facts, generally speaking. portion of the appraised value is not real For one to be prepared to bid he must have ized at the sale."

opportunity to examine real estate adverIn 27 Cyc. 1684, appraisement as to lands

tised for sale, for it cannot be brought to about to be sold on foreclosure of a mort the place of sale, usually the front door of gage is spoken of as required by statute,

the courthouse of the county. And were and cases from several states are cited to this possible, advertisements often are not the text. In this volume of Cyc., under the required to state whether it is incumbered title, "Mechanics' Liens,” under the sub- or unincumbered. Verily, in many cases it head, "Sale," there is no reference to ap is like buying a "pig in a poke” to buy praisement. In 30 Cyc., page 273, it is said property at a sale to which the doctrine of in the article on Partition that there may caveat emptor applies. be appraisement for the purpose of prevent- | The courts are exceedingly jealous about ing a sale, “but generally no appraisement irregularities attending such sales, and for to precede a sale in partition is required.” fair, or a chance for fair and full, competi

In Nebraska an appraisement law was tion being assured, or possibly assured. said to be "designed to prevent a sacrifice Their practice has been greatly to magnify

the importance of small departures from NOTES OF IMPORTANT DECISIONS. strict observance of statutes, but legislatures have not seemed greatly to concern them DUTY OWED TO INVITED GUEST BY THE selves to provide full, accurate and neces OWNER OF AN AUTOMOBILE.-The Supreme sary preparatory steps for the conduct of a

Court of Michigan considers what it calls "the sale and protect an owner against sacrifice

interesting and meritorious question in the

case as to the rule of conduct" of one in control of his property.

of an automobile toward a social guest, in the The policy of protecting interests of es gratuitous service that was being rendered. tates and of minors represented by admin Roy v. Kern, 175 N. W. 475. istrators and guardians from being sacri Appellant contended that he was bound only ficed, and against mortgaged property being

to refrain from intentional injury or gross neg.

ligence, which is the equivalent of intention. sold for less than a given proportion of its

It was said the question was a new one in value, is found in many more states, than

Michigan, but the court quotes the following where there is provision regarding sales from Avery v. Thompson, 117 Me. 120, 103 Atl. upon ordinary execution. And this is not 4, L. R. A. 1918D 205, as stating the correct rule withstanding the fact that the officer con

as to a guest:

"The thing undertaken was the transportaducting a sale on execution may be deemed

tion of the guest in the defendant's automobile, to be acting ministerially, as has been held. The act itself involved some danger, because In this day and generation, when the

the instrumentality is commonly known to be

a machine of tremendous power, high speed and world is flooded with so much more printed quick action. All these elements may be supmatter and newspapers than formerly was

posed to have been in the contemplation of the

guest when she accepted the invitation. In a the case, it seems like an invidious distinc sense she may be said to have assumed the tion to prefer one sort of publicity as giving

risks ordinarily arising from those elements,

provided the machine is controlled and man constructive notice over another. What aged by a reasonably prudent man, who will should be aimed at in constructive notice is

not by his own want of due care, increase their

danger or subject the guest to a newly created that the medium therefor should be some danger. In other words, we conceive the true thing presumptively drawn to the attention

rule to be that the gratuitous undertaker shall

be mindful of the life and limb of his guest, of the general public and not to a limited and shall not unreasonably expose her to addi. part thereof. Or, if it affects a matter in tional peril.” rem, publication should be made where the There were cited by the Maine court a great res is located, or attached thereto in a con many cases, some of which may well be thought

to antedate the advent of automobiles, and one spicuous way, as say a notice of sale on the

case shows that in Massachusetts a different premises.

rule was declared in the case of Mascaleti v. Furthermore, if trust property, such as Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. that of decedents or minors, is guarded, and 1918C 264, Ann. Cas. 1918B 1,088. properly so, against sacrifice at public sale, This case is very elaborate in the length with by providing in advance for what is com

which it goes into the question of the different

degrees of negligence, but it seems to us to monly understood as an upset price, why

make no distinction such as is made in Hutchnot other sales ? It is familiar for decrees

inson on Carriers between carriers of goods and in chancery thus to provide, which practice carriers of passengers. Mr. Hutchinson says: goes far to show its underlying equity.

"The carrier of the passenger is bound to the

utmost care and caution, whether paid by the But, if there be no statute specifically to

passenger or not; and this distinction is based guard against sacrifices in the following of upon wholly different reasons of public policy,

being in the one the value which it puts upon a rule, shall our courts be embarrassed in

human life and personal safety, and in the inventing some such principle as avoiding other the necessity of preventing frauds and

combinations, to the undoing of all persons who judicial sales for inadequacy of considera

may have dealings of that kind with the car. tion? Possibly we now have as much rier." judge-made law as comfortably we may Neither in the instant case nor in the Fitzroy absorb.

A case is the distinction stated by Hutchinson referred to. It may be thought, however, it is bearing of what was said by the court. The recognized, impliedly, in the instant case. But, policy provided for an exception as to death not in our opinion, it ought to be stressed as a resulting "directly, independently and exclusound rule of law. One may commit his goods sively of all other causes in death." to the keeping of another under whatsoever The Court stated that if such a clause were terms he sees fit, but it hardly may be thought given “absolute literal meaning," the policy a deliberate intrusting of his life and safety to would be worth nothing to an insured. another in the acceptance of his kindness or

In support of this statement it quoted as fol. courtesy. There should be thought to be an lows from a prior decision by Georgia Supreme assurance of care or skill in the management

Court: of a dangerous machine in which one is invited

"To hold in any case that a contract which to ride. This view may be thought but an

stipulates that the loss for death should be pay. extension of the principle of the doctrine of the able only when the loss results solely and exlast clear chance, in the implied assurance that clusively from an injury would be to hold that danger of that kind shall arise.

death must, in every case, be instantaneous and the immediate effect of the injury in question, for it is a matter of common knowledge that

almost every human being has some weak spot ACCIDENT ACCELERATING DEATH NOT

in his organism, which might to a larger or SOLE PROXIMATE CAUSE THEREOF.-Two smaller degree contribute to bring about death recent decisions, one by the Supreme Judicial

in a particular way in that particular case, Court of Massachusetts and the other by the

although another person under the same cir.

cumstances might not have died. Except in the Supreme Court of Georgia, treat a question of

case of a human being who is in perfect health, great importance in accident insurance law, or unless death is instantaneous, death never and, as they rest on not wholly dissimilar facts

supervenes when it cannot be said that there

was perhaps more than one cause which con. and reach directly opposite results, are herein

tributed to the fatality.below contrasted. Leland v. Order of United

While it may be that the Georgia court states Commercial Travelers, Mass., 124 N. E. 517;

the matter too extremely, yet it ought to be Pacific Mut. Ins. Co. v. Meldrim, Ga., 101 S.

thought that accident insurance companies in E. 305.

insuring against accidental death do take risks The facts in the Leland case show that de among people as they ordinarily appear, or, as ceased insured was a commercial traveler, ap may be, they are. They are not selected risks parently in good health, and had been for sev. on a basis of health, or upon activity, strength eral years. In the morning, as he was going or age. And we believe they are not particularly from his cellar to his room upstairs, he tripped graded on any basis of this kind. Our inclinaand fell twice, becoming unconscious. He was tion, upon the whole, is rather towards the assisted to his bed, regained consciousness, com Georgia, than the Massachusetts, ruling. Cerplained of pain in his right side, was treated by tainly it is not to be thought the policy is to be a physician, had difficulty in breathing and died taken in a strictly literal way. that evening. An autopsy revealed heart and lung and other lesions in his system. Physi. cians testified that death resulted from heart failure at the time of the fall, his heart being THE DISTINCTION BETWEEN COLpre-disposed to such failure from shock or over


TACK UPON A JUDGMENT. The Court said: “The deceased confessedly was suffering from disease or diseases which actively co-operated with the fall causing death. The word "collateral” as applied to an The disease and the fall were concurring, effi

attack upon a judgment has been used with cient and proximate causes in producing death.

less discrimination between it and its anEither alone without the other would not then have resulted fatally. It cannot be held, with

tithises than any other word in legal any due regard to the meaning of words in the phraseology. contract here sued upon, that the death of the The meaning which has been given to insured resulted from the accident 'alone and

the word collateral by lexicographers and independent of all other causes' as 'the proxi.

| the sense in which the word is used by mate, sole and only cause.'

In the Meldrim case the facts need not be bankers, in reference to securities, are reexpressly set out to understand the particular sponsible in a great measure for the confusion which has arisen in attempting to dis- whom it is rendered into any and every tinguish between the two kinds of attacks | part of the world. A judgment in rem is that can be made upon a judgment. As not a fixed liability against the defendant, applied to an attack upon a judicial pro | but is an adjudication pronounced upon the ceeding, the word collateral has a separate | status of some particular subject matter. It and distinct meaning from that given by | gives one party a title to, an interest in, or a the lexicographers, and different from that lien upon some particularly described propwhich it carries with reference to securities, erty owned or claimed by the other. A judgand courts and text writers have so oftenment determines and forever settles the referred to a direct assault upon a judgment rights of the parties to it. It is absolute, as being a collateral attack that practition- incontestable, and irrevocable, and can ers sometimes fall into an erroneous idea, never again be called into question by any that a collateral attack upon a judgment is court, either domestic or foreign. Such an any proceeding to set it aside, other than absolute and irrevocable determination of by a motion for a new trial or by appeal. the rights of men can only be made by a If this were true, there would be no way to court of competent jurisdiction and in a escape the effects of a void judgment after proceeding free from fraud. the time for taking an appeal had expired, While the Constitution provides that full and a void judgment would have the same faith and credit shall be given in each state force and strength of validity that a valid to the judicial proceedings of every other one would have. A valid judgment would state, to entitle a judgment to this unquesstand upon its merit, while a void judg tionable recognition, it must really be a genment would stand because it could not be uine judgment. A void judgment is not a attacked. There are two distinct methods | judgment; and to determine whether a of procedure by which a false judgment can judgment is valid or void is simply to debe exposed. In one proceeding the record termine whether it is or is not a judgment. can be flatly contradicted, while in the other A void judgment is entitled to no faith or proceeding the record must be accepted as credit anywhere. It can neither give a right true.

nor take one away. The full faith and

credit clause of the Constitution does not A judgment is the final adjudication and

prevent an inquiry by the courts of a state determination by a court of competent juris

into the jurisdiction of the court in which diction of the rights of the parties to an

a foreign judgment is rendered. action in and to the subject matter of the

By an Act of Congress, known as the litigation. If it is for money, it is a debt

Authentication Act, the records and judicial of record. If it is for a lien on property, it

proceedings of the courts of any state or is a lien of record, and, if it is for property,

territory shall be proved or admitted in any it is a title. If it is rendered in an action for

other court within the United States by the money and is a denial of the plaintiff's right

attestation of the clerk and the seal of the to recover, then it is a shield for all time

court annexed, when there be a seal, togethand a protection to the defendant against

er with a certificate of the judge, chief justhe assertion of any further claim of the

tice, or presiding magistrate, that the said plaintiff in any court.

attestation is in due form. And the said There are two kinds of judgments: Judg records and judicial proceedings so authenments are either in personam or in rem. ticated shall have such faith and credit given They are in personam when the proceedings to them in every court within the United are again the person of the defendant. A States as they have by law or usage in the judgment in personam is a contract, a fixed courts of the state from which they are liability, which follows the party against 'taken.

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