Brooks & Hardy v. O'Hara Bros.
be taken, like all other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible. The party is estopped to set up such fraud, because the judgment is the highest evidence and cannot be contradicted."
See also the following authorities, cited by Mr. Justice Miller in same opinion: Dixon v. Graham, 16 Iowa, 310; Cottle v. Cole, 20 id. 482; Borland v. Thorton, 12 Cal. 440; Biddle v. Baker, 13 Iowa, 295; Railroad Company v. Neal, 1 Wood, 353.
The demurrer must be sustained, with leave to complainants to amend, if counsel thinks he can bring the case within the principles announced in this opinion.
ABATEMENT. See Practice, 5.
ACCEPTANCE. See Contract, 5, 13.
ACCIDENT. See Negligence, 13.
1. ACCOUNTING BETWEEN PRINCIPAL AND AGENT.- Where an agent in a settlement with his principal presents an account of debtor and creditor, upon the basis of which an adjustment and settlement is made, the principal acting upon the presumption that such account is correct, and relying upon the agent's representations in that regard, if there was either fraud, misrepresentation or mutual mistake in the account, a court of equity will set it aside and place the parties where they were before the settlement was made. Milton Courtright v. James N. Burnes, 532 2. COMPROMISE OF CONFLICTING AND DISPUTED CLAIMS.-But where after the relation of principal and agent had terminated the parties came together, and after full discussion made a general settlement and compromise, not merely of the items of an account stated, but of all matters in dispute, including doubtful and conflicting rights—in order to set aside such a settlement some positive fraud must be satisfactorily proved. Id.
1. ADMINISTRATOR - NOT LIABLE AS SUCH FOR CERTAIN CONTRACTS, NOR FOR TORT.- An administrator cannot bind the estate by any contract made upon a new and independent consideration, and much less for a tort. The action in such case is not against the administrator officially, but against him as an individual, and in his personal capacity. Thompson v. Canterbury, Administrator, 332 2. SAME-SAME.- Held, accordingly, that where an administrator undertook to sell and convey certain patented articles in violation of the patent right of the plaintiff, no action could be maintained against the administrator as such.
3. FOREIGN ADMINISTRATOR — Right to SUE.- In the absence of a statutory provision, it is clear that an administrator cannot sue outside of the state in which he is commissioned. Eells and others, Administrators, v. Holder and others,
4. SAME-SAME-STATUTE OF KANSAS.- Under section 2491, Com-
piled Laws of Kansas, an executor or administrator appointed in any
other state may sue in Kansas in like manner and under like restric-
tions as a non-resident may sue.
Id.
5. NOTES SECURED BY MORTGAGE FOLLOW THE PERSON OF PAYEE AND
OWNER. The payee and owner of certain notes secured by mortgage
resided in Ohio, the maker of the notes and mortgagee resided in
Kansas, and the real estate covered by the mortgage was in Kansas:
Held, that upon the death of the payee and owner of the notes in
Ohio and the appointment of administrators there, the title to the
notes vested in such adıninistrators, who were authorized to sue for a
foreclosure of the mortgage in the courts of Kansas, the mortgage
being a mere security and an incident to the notes.
Id.
6. PERSONAL ESTATE OF A DECEASED PERSON, WHERE ADMINIS-
TERED. The personal estate of a deceased person is to be regarded
for the purposes of succession and distribution, wherever situated, as
having no other locality than that of his domicile.
Id.
ADMIRALTY. See Mariner, 1, 2, 3.
1. ADMIRALTY LAW-COLLISION-DAMAGES.-The expenses from the
port of departure to the place of collision and of return to the port of
repairs, will not be allowed in damages. The Memphis & St. Louis
Packet Company v. Steamboat H. O. Yeeger and others,
ADVERSE CLAIMANT. See Mining Claim, 3.
ADVERSE POSSESSION. See Title, 1, 2, 3. Conditional Sales, 3.
ADVERSE PROCEEDING. See Removal, 12.
AFFIRMATIVE RELIEF. See Equity, 6.
AGENCY. See Deed, 2. Bonds, 1, 2. Custom, 1. Agreement, 4. Ac
counting, 1. Usury, 1, 2, 3.
AGENT. See Negligence, 17. Corporations, 2, 3, 4.
AGREEMENT. See Receiver, 4. Insurance, 7.
1. PURCHASE BY ONE PARTY TO AN AGREEMENT TO MAKE JOINT
PURCHASE IS FOR JOINT BENEFIT OF ALL.-If two or more per-
sons agree among themselves to purchase property for their joint ac-
count, and the purchase is accordingly made by one or more of them
on behalf of all, the liability of each to pay his share of the purchase
money, and his right to an interest in the property, cannot be contro-
verted. So, also, if two or more persons enter into a contract with
another to purchase property, all matters being fully arranged in the
agreement, the equal right of all vendees to proceed in the execution
of the contract may be conceded. But neither one of the vendees
under such contract could take the title to himself, until default by the
party excluded, in some manner to which he was bound by the terms of
the agreement. The First National Bank v. Bissell, Foss & Hunter, 73
2. PURCHASE AS TRUSTEE-WHEN HELD TO BE.-If one take unto
himself a title which he has purchased with the money of another, he
is a trustee for the true owner, who may rightfully follow the fund,
wherever it may be miscarried.
Id.
3. AN AGREEMENT TO NEGOTIATE FOR PURCHASE OF PROPERTY
GIVES NO RIGHT TO EITHER PARTY THERETO.- An agreement
between A. and B. to purchase the property of C.-the latter not being
a party thereto― amounts simply to an agreement to negotiate with
C. for the property, and presents no feature which can affect the title.
Such an agreement could give no right to either party until consum-
mated in the purchase of the property.
Id.
4. AN AGENT TO PURCHASE A PARTICULAR PROPERTY FOR ANOTHER
MAY REPUDIATE HIS AGENCY AND PURCHASE FOR HIMSELF.-
The case is not different if A. and B. be regarded as agreeing to an
agency in respect to the purchase of the property. For if one who is
clearly an agent for another to purchase property, repudiate the
agency and act for himself, using his own funds, he cannot be declared
a trustee for his principal, although the latter may have been misled
by the conduct of the former.
Id.
5. TENANTS IN COMMON ARE BOUND TO PROTECT THE COMMON TI-
TLE, BUT MAY DEAL WITH EACH OTHER THE SAME AS WITH
STRANGERS, TOUCHING THEIR RESPECTIVE INTERESTS.- Although
tenants in common are not at liberty to assail the common title by
which all hold, they may deal with each other touching their respect-
ive interests, and are at liberty to purchase from each other, the same
as a stranger might purchase from any or all of them. The purchase
by one co-tenant of the interest of another will not inure to the ben-
efit of all who retain an interest in the property.
ld.
6. INDIVIDUAL ACTION OF MEMBER OF A PARTNERSHIP.- Fidelity to
the partnership is the highest duty of its members, and no member
can be allowed to turn the partnership concerns to his own account;
and whenever a member is found to be seeking a private advantage
from partnership dealings, the courts are prompt to correct such an
abuse of confidence. To invoke this principle, however, it is necessary
to show that the malversation was of partnership funds or effects,
otherwise no member of the partnership can complain.
Id.
7. THE RULE IN MINING PARTNERSHIPS.-In mining partnerships, the
firm has no right of pre-emption as to the interests of retiring parties,
especially when the parties are tenants in common of the mines, them-
selves, and not merely partners in the business of mining. In such
an association it cannot be said that there is, in the collective body, a
right to acquire new interests which its members are bound to respect.
Each member holds his interest in his own right, with power to dis-
pose of it as he thinks proper, and is free to deal with an associate
or with a stranger in respect to such interest. And each member is
at liberty to buy from his associates and thus enlarge his interest in
the whole property, without reference to the partnership relation-
and such purchase will not inure to the benefit of other joint
APEX OR TOP. See Mining Location, 1. Vein, 3. Mining Claim, 16.
APPEARANCE. See Removal, 4.
APPLICATION. See Removal, 8.
APPREHENSION. See Reward, 1.
ARKANSAS STATUTES. See Attachment, 3.
ARSON. See Insurance, 5.
ASSESSMENT WORK. See Mining Claim, 3.
ASSIGNEE. See Bankruptcy, 2, 3. Equity, 4, 5. Note, 2. Removal, 19.
Usury, 2. Tax Sale, 2.
See Bankruptcy, 2, 3. Injunction, 9. Removal, 2.
ASSIGNOR. See Removal, 19.
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1. ATTACHMENT-LEVY - PERSONAL PROPERTY.-To constitute and
preserve an attachment of personal property capable of manual de-
livery, the officer must take the property into custody and continue in
the actual possession of it, by himself, or by an agent appointed
by him for that purpose. Adler, Goldman & Company v. Roth, De-
fendant, and Shapleigh & Company, Intervenors,
445
2. SAME Two WRITS PRIORITY.- Where writs of attachment issue
from a federal and a state court against the same defendant, the one
under which the property is first actually taken into custody has
priority, without regard to the date of the respective writs, and a
United States marshal and a sheriff cannot make a joint or partner.
ship levy, nor can one of these officers make a levy subject to the
prior levy of the other.
Id.
3. ATTACHMENT REMOVAL OF PROPERTY OUT OF THE STATE — AR-
KANSAS STATUTES.- A statute in Arkansas declares a creditor may
have an attachment against his debtor who "is about to remove or
has removed his property or a material part thereof out of this state,
not leaving enough therein to satisfy the plaintiff's claim or the claim of
said defendant's creditors." Held, that a merchant who did not have
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