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tare are justly regarded with suspicion, unless it the wife by the return of like sums of money. Being
clearly appears that the consideration was paid out of without consideration, they could not be enforced,
ber separate estate. Such is tbe community of inter- for a mere promise to make a voluntary gift is not suf-
est between husband and wife; such purchases are so ficient. To make the intended gift effectual the inten.
often made a cover for a debtor's property; are so fre- tion must have been executed; and the evidence
quently resorted to for the purpose of withdrawing his should show clearly and distinotly that the husband
property from the reach of his creditors and preserv- had by positive act divested himself of his right of
ing it or his own use, and they hold forth such property and vested the same in the wife.
temptations for fraud that they require close scrutiny. This case is entirely unlike those cases where the
In a contest between the creditors of the husband and husband contracts with his wife in respect to her sepa-
the wife there is, and there should be, a presumption rate estate, or where the fund in respect to which the
against her which she must overcome by affirmative promise is made is or could be made, subject to the
proof. Such has always been the role of the common control of a court of equity, and the promise is to do
law; and the rule continues, though statutes have what the court would compel the husband to do, by
modified the doctrine that gave to the husband abso- virtue of the wife's right to equitable settlement out
lutely the personal property of the wife in possession, of the fund; or where in consideration of the wife's
and the right to reduce into his possession and owner- agreement to sell her real estate, and allow the hus-
ship all her choses in action.” And in support of the band to receive the proceeds thereof, under a promise
doctrine just stated many decided cases are referred to to invest such proceeds for her benefit, or to pay her
by the court.

the money; as in all such cases the promise is founded In this case the rights of the parties and the validity upon good and sufficient consideration, and the relation of the transactions involvej depend upon the law as it of debtorand creditor is created as between the husband stood before the adoption of the Code in 1860.

and wife. The propositions find apt and pointed illusBy the common law, before it was.modified by the tration in the cases of Stevenson v. Reigart, 1 Gill. 1; adoption of the Code, as between husband and wife, Bowie v. Stonestreet, 6 Md. 418; Stockett v. Holliday the personal property of the latter, such as money, and Wife, 9 id. 480; Jones v. Jones & Wife, 18 id. 464; goods and chattels, became vested immediately and Kuhn v. Stansfield, 28 id. 210; Mayfield v. Kilgour, 31 absolutely in the husband, and he could dispose of it id. 242; Oswald v. Hoover, 43 id. 360; Crane v. Barkas he pleased. Co. Litt. 351, b; 2 Kent Com. 143. And doll, 59 id. 534. it a debtor of the married woman paid to her during The case of Stevenson v. Reigart, 1 Gill. 1, is much coverture the debt, or if money was given to her by relied upon by the defendants, but that case is not an any third person, unless it was expressed to be to her authority in a case like the present. In that case cersole and separate use, the money so received inured to tain executors held the legacy, a chose in action, due the benefit of the husband, and became his property the wife as her trustees, and they paid over such legabsolutely. And so the husband was entitled abso- acy to the husband upon a special agreement with lutely to all sums of money received by a third person them, that the money should be invested for the ex. on account of his wife duriog coverture. These prin. clusive benefit of the wife. It was upon the validity of ciples are among the elementary doctrines of the com- this agreement with the trustees that the case turned. mon law, and they have been adopted and applied by The court declared that the husband received the repeated decisions of this court. Turton v. Turton, money from the trustees on the agreement, not by vir6 Md. 375, 381; Taggart v. Boldin & Thayer, 10 id. tue of his marital rights, but as trustee for his wife. 104.

He received the money, say the court, upon a special Il therefore it be conceded, as it may well be, upon

trust and confidence that it would be invested for her the proof in the case, that the money came to the wife benefit; he received it as her trustee, and upon his failand was received or paid over to the husband, as and ure to make that investment, the consideration upon in the manner stated in the answer, and as testified which he received it failed, and the wife had a right to to by the wife, still there is nothing to show that it consider it as so much money had and received for her came to the wife as her sole and separate estate, and use. That case therefore bas but slight, if any,the reconsequently it vested in the husband at once and ab- motest bearing upon this case. solutely, by virtue of his marital relation. Unlike a No case could well occur where greater injustice chose in action belonging to the wife, which did not would be done to the creditors of the husband by upvest absolutely in the husband except at his own elec- holding the deed of the wife than in this. Bayne, the tion to reduce it into possession, the receipt of the husband, became surety on the guardian's bond of money by the wife was

the receipt of the Monroe, given for the protection of the complainants, same to the use of the busband, and the money became then minor children, in 1855. He was then the owner his instantly it was received by the wife. Carroll v. of the farm that he subsequently conveyed to his wife. Lee, 3 G. & J. 504.

We may well suppose that it was upon the faith of It would doubtless have been competent to the hus- such ownership of the farm that he was accepted as band to settle the money upon the wife,to her sole and surety. So soon as he was sued on the bond in 1868 he at separate use by gift; but as has been said by this once dlvested himself of his entire property by the court, "the act by which he divests himself of his deed to his wife, and from the position of owner he property must be clear and unequivocal(Thurton v. descended to and assumed that of agent, but still reThurton, supra); or as was said by the late Chancellor maining in the full possession and enjoyment of the Johnson, to establish such gift from the husband to farm, while his creditors were left without any possible wife, courts of equity require clear and incontroverti- means from which to get payment of their just deble evidence. George v. Spencer, 2 Md. Ch. Dec. 353, mands. This transfer of his property is sought to be 300. The marital rights of the husband having at- supported by proof of mere verbal promises made to tached, the mere promises of the husband to the wife the wife, some of the most material of them twenty to repay ber the various sums of money received by odd years before the making of the deed. bim were without consideration, and could form no Mr. and Mrs. Bayne were both examined and re-exground for a valid claim against him. Oswald v. Hoo- amined as witnesses, and their several statements are ver, 43 Md. 368; Plummer and Wife v. Jarman, 44 id. not in all respects consistent as to the circumstances 637; Sabel v. Slingluff, 52 id. 132, 135.

under which the money was obtained by Mr. Bayne. Such promises amounted to nothing more than mere Their respective statements in regard to the making voluutary agreements to make future donations to and delivery of the deed are essentially variant. And

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though this may be attributed to the imperfection of uncorroborated testimony of an accomplice. Held, memory, yet it shows the great vecessity for caution, that there was other testimony tending to connect and the danger in proceeding upon such evidence after the defendant with the commission of the crime," such great lapse of time.

sufficient to meet the requirements of $ 399 Code Crim. [Omitting discussion of evidence.)

Proc., prohibiting a conviction on the uncorroborated According to the established legal principles, as we testimony of an accomplice. People v. Ryland. Opinhave seen, the money became the property of the hus- ion by Miller, J. [As to coercion see 1 Allen, 4; 2 Gray, band immediately upon its receipt by the wife, as the 510; 11 id. 437; 38 N. Y. 178; 13 Eng. Rep. 453; 42 Vt. law stood at the time. His promises to return it to the 495; 59 Me. 298. -ED.] wife where nothing more than promises to restore [Decided Oct. 28, 1884, affirming 16 W. Dig. 232.] money to her possession, which the law bad vested in

TRUST-DECLARATION OF -- STATUTE OF FRAUDShim as his own absolute property; and such promises

PAROL LEASE-SPECIFIC PERFORMANCE- ASSIGNMENT created no legal obligations that could be enforced

CREDITORS against the husband. At most only the money coming


ASSIGNEE to the wife after the act of 1853, ch. 245, could be pro



PROCEEDS.-If the tected from the debts of the husband.

declarations of a party can, under any circum

stances, be received to raise a trust or create Upon the whole this deed, so manifestly in prejudice of the rights of the complaining creditors, ought clear and explicit, and point out with certainty the

an interest in lands in another, they must be not to stand as against them. The deed is perfectly subject-matter, and the extent of the beneficial inter, good as between the husband and wife, but not as against the subsisting creditors of the husband at the

est. Equity cannot, under any circumstances, compel time the deed was made. The decree of the court be

the performance of a parol agreement vague in its low is as favorable to the wife as she could reasonably

terms, and standing upon testimony of the accuracy

of which the witness is himself uncertain. In an acask it to be; and but for a technical objection taken to the frame of the bill, we should simply affirm the

tion brought by plaintiffs as judgment creditors of the

defendant R., to have certain real estate in which decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties they claimed R. had an interest charged with the pay

ment of their judgment, the court found that R. being beneficially entitled to the judgments; thus following the form of the recovery at law upon the boud. This

the owner of the land, by procurement of the defend

ant A. F., conveyed it to the wife of the latter, by is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregu: further consideration it was agreed between R. and A.

deed, reciting a consideration of $2,300; that as a larity as may be corrected by amendment. We sball

F. that the former should have the use for three years therefore, without affirming or reversing the decree re

of the cellar and first floor of the building to be erected mand the cause that the amendment in the particulars

upon the premises. The only evidence upon which mentioned may be made, and that a decree similar to

the last finding was made was testimony of admissions the one appealed from be passed by the court below.

made by R. after the conveyance and in the absence of Cause remanded under art. 5, sec. 28 of the Code.

A. F., except the testimony of one witness as to a
Yellott, J., dissents.

conversation with A. F. and R., in which the former
said he had bought the premises, and that R. was to

have the use for “either several years or two or three NEW YORK COURT OF APPEALS ABSTRACT.

years," the witness could not say which, as it was out of

his memory. Ileld, that the evidence was insufficient CRIMINAL LAW-FORGERY- WIFE AS PRINCIPAL- to sustain the finding; but if the evidence was suffiPRESUMPTION OF COERCION--EVIDENCE-Code CRIM. cient to establish an agreement to give A. F. the use PROC.,$ 399TESTIMONY OF ACCOMPLICE.-Defendant,

of any portion of the premises, it was in the nature of with her husband and another, was indicted for for

a lease, and as it was by parol, and for more than a gery in the third degree, in raising a check. It ap- year, it was void by the statute of frauds; and that it peared on the trial that defendant suggested the idea

was not such a contract as equity would decree perof obtaining the check, and went alone to a store where formance of after the execution of the deed, and beshe procured a check for $6, upon the representation fore the recovery of plaintiffs' judgment. R. made a that she desired to send the money that evening to general assigninent for the benefit of his creditors. her sister or mother in Philadelphia, and she could not The assignee accepted the trust, entered upon the perobtain an order at the post-oflice, as it was closed. formance of his duties, and it appeared that the asThis check she delivered to her husband, who in her signor's debts greatly exceeded his assets.

Held, that presence, erased with an acid the name of the payee if R. was then entitled to a lease, or to any benefit in and the amount. Subsequently, when it did not ap- the premises, the right passed to the assignee, and pear that she was present, the check was filled in for the

plaintiff's had no claim which they could enforce $165.50, the money was obtained thereon, and $74 of against it. Emigrant Industrial Savings Bank v. that sum paid to defendant. Held, that the evidence Roche, 93 N. Y. 374; Spring v. Short, 90 id. 538. If was sufficient to authorize a finding that defendant's such an assignee refuses in a proper case to proceed participation in the affair was voluntary and under and get in the assigned property, the creditors colno coercion from her husband, and also was sufficient lectively, or one in behalf of all who may come in and to justify a conviction of defendant as a principal, not join, may compel the execution of the trust in equity. simply as an accessory before the fact. The rule un- So he could be removed and a more efficient trustee doubtedly is, that whatever of a criminal nature the appointed, but in either case a decree for a single debt wife does in the presence of her husband is presumed would be erroneous. Nor is it possible for an assignee to be compelled by him (1 Bish. Crim. Law [7th ed.],

by any word or act of disclaimer, to relieve himself $ 359); but this presumption is primu fucie and not from the obligation to collect the estate and distribute conclusive, and if it appears that she was not urged or it according to the terms of the assignment. He is drawn to the offense by him, but was av inciter of it, bound to all the creditors, and their rights cannot be she is liable as well as he. Seiler v. People, am N. Y. varied at his option. If otherwise, a preference might 413; Goldstein v. People, 82 id. 233. (2) The proof as be created when the assignment was silent, and by reto what occurred, after defendant returned with the fusing to sue or evforce a right of property, as the recheck, in reference to the alteration thereof, was the spondent alleges was done in the case before us, an

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assiguee could permit a favored creditor to absorb the press agreement, both parties will be deemed to have
property of the estate and gain priority over others. acted under the obligation of duty imposed by said
No doubt the creditor might also sue if the assignee rule. (4) The said rules and regulations are not in con-
improperly refused to do so. But if successful, the flict with said act, or the general law of the State, aud
decree must follow the assignment, and the fruits of are binding upon the assenting members, and as to
the recovery be distributed according to its terms. them have the force of contracts. Landers v. Franck
Bate . Graham, 11 N. Y. 237; Everingham v. Van. St., etc., Methodist Church. Opinion by Danforth, J.
derbilt, 12 Huu, 75; Dewey v. Moyer, 72 N. Y. 70; [Decided Oct. 28, 1884.]
Spring v. Short, supra. The case of Fort Stanwix
Bauk v. Leggett, 51 N. Y. 554, cited by the respond-
ents, does not aid the plaintiffs. In that case the as- UNITED STATES CIRCUIT AND DISTRICT
signeo was not a party, and no objection was made by

answer or on the trial, nor did it appear that there
were other creditors having an interest in the fund. INTEREST—WHEN AGENT LIABLE FOR.—Money vol-
Here there are an existing assigoment, an actiug as- untarily left by a principal in the hands of an agent
signee, and creditors other than the plaintiffs. Crouse lies without interest until some request for it or oc-
v. Frothingham. Opinion by Danforth, J.

currence changes the character of the detention; but (Decided Oct. 21, 1884.]

when the detention is against right, interest from the ECCLESIASTICAL LAW-ACT OF 1813-PASTOR'S SAL

time when the money should have been paid to the ARY-METHOD OF RAISING.–(1) The provisions of the principal, at the rate fixed by the law of the place Act of 1813, ch. 60, $ 48, providing “for the incorpora-Ct., s. D. N. Y., Sept. 9, 1884.

where it is detained, is chargeable to the agent. Cir. tion of religious societies," which prescribe the

Bischoffsheim v. method of fixing the salary to be paid to a minister of

Baltzer. Opinion by Wheeler, J. a corporation organized under it are exclusive and im- NEGLIGENCE-WHARVES-OBSTRUCTIONS - SUNKEN ply a prohibition of any other method. It is obvious PILE-DAMAGE TO VESSEL-LIABILITY OF OWNER AND from an examination of the record that there was no OCCUPANT.-A coal merchant baving by arrangement compliance with any of these provisions, and upon a with a railroad company, the owner, obtained the exformer trial a nopsuit had been granted for that rea- clusive use of a wharf and of the slip adjoining, for the 800. It was denied upon this occasion in deference purpose of receiving coal upon cars of the company, to the decision of the General Term, by which the non- and of thence selling and shipping the coal on board suit had been set aside (15 Hun, 340), and a ruling vessels that he procures to come to the wharf to receive made that notwithstanding the statute it was com- it, paying the company a tixed sum as wharfage for all petent for the parties to make the contract in such coal thus sold and shipped, is liable for the damages other manner as they saw fit. We think such a con- to such vessels occasioned by a sunken pile near the struction destroys the efficacy of the act. It removes wharf, after notice of the existence of the obstruction the check which was intended to be put upon the and of its dangerous character, the vessel having been power of trustees (Petty v. Tooker, 21 N. Y. 267), and directed to move over the dangerous spot by his gentakes from the select body of corporators (People v.

eral superintendent. The John A.Berkman, 6 Fed. Rep. Tuthill

, 31 N. Y. 550), who were considered by the Leg- 535; Christian v. Van Tassel, 12 id. 884; Swords v. Edgar, islature the proper persons to deal with the matter, 59 N. Y. 35; Leary v. Woodruff, 4 Hun, 99; Cannavan and so were authorized to determine the amount of v. Conklin, 1 Daly, 509; Carleton v. Franconia, etc., salary to be paid, the power to do so, by conferring it

Co., 99 Mass. 216. The liability of the company as upon the congregation at large, and leaves the evi- owner for the same damage, if proved, would be no dence of the obligation to be determined by parol evi- defense to the several liability of the occupant of the dence, rather than the written instrument upon which wharf. Dist. Ct., 8. D. N. Y., July 26, 1884. Onderthe statute authorizes payment to be made. When a donk v. Smith. Opinion by Brown, J. statute covers the whole subject, and prescribes the CONSTITUTIONAL LAW-CONTRACT TO CONSTRUCT persons who may bind a corporate body and the man


EQUITABLE ner in which they may bind it, resort cannot be had to INTERFERENCE.- The Constitution of the State of other instrumentalities. The designation of certain

Pennsylvania provides that “no corporation shall issue agents and methods for the doing of an act implies a

stocks or bonds except for money, labor done, or prohibition of any others. People ex rel. Atty.-Gen.

money or property actually received; and all ficti. 5. Utica Ins. Co., 15 Johns. 357; New York Fireman's tious increase of stock or indebtedness shall be void.'' lus. Co. v. Ely, 2 Cow. 678; Crocker v. Whitney, 71 N. An incorporated railroad company of that State enY. 161; Donovan v. Mayor, 44 Barb. 180. Accordingly, tered into a construction contract whereby the conwhere the salary of a minister of a Methodist Episco- tractor agreed to furnish all the materials and do all pal church was fixed by the quarterly conference, in- the work necessary to construct the company's road, stead of as prescribed by said act, held, that no con- at an expenditure however pot exceeding $200,000; and tract obligation was imposed upon the church, and in consideration thereof the company agreed to issue that an action was not maintainable against it to re- to the contractor $300,000 of its capital stock as fully cover a balance unpaid of the salary so fixed. (2) Un- paid up, and $300,000 of its first mortgage bonds. The der the rules and regulations of the “ Methodist Epis- materials could be furnished and the road built for copal Church of the United States,” enacted by its $180,000 cash. Held, that the contract contravened the general conference, no contract relation exists between constitutional provision, and was ultra vires and void. a society belonging to thai church and its minister. There can be no doubt that a court of equity may enThe society is simply a contributor to a general fund tertain a bill to avoid a contract of a corporation raised by voluntary not enforced contributions, for

which it had no power to make. Aubury Academy v. the support of ministers, and no implication arises of

Strong, Hopk.(N. Y. Ch.) 278. And constructive fraud any promise on its part of compensation to the minis involving a breach of trust or an abandonment of duty, ter assigned to it, from the fact that service is rendered or a violation of public policy, is a recognized ground for by him and received by the society. The minister equitable interposition for the cancellation of agreerenders service not upon an agreed salary but upon an ments. 1 Story Eq. Jur., $ 694. Where there is fraud allowance for support to be paid from such general fund. (3) In the absence, at least, of some valid ex

*To appear in 21 Federal Reporter,

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cuses therefor, the method of a plea would be to state that there is no such excuse, and because by taking issue on such a plea and framing an excuse the complainant could cut off all excuses aud win the case. To guard against a demurrer based on laches, in a case where long delay intervened between the infringement and filing of the bill, the bill ought to state the exist. ing excuses for that delay; and to guard against such defense being started on the hearing the evidence ought to show whatever excuse the complainant can interpose." See also the following authorities: Max. well v. Kennedy, 8 How. 222; Lewis v. Chapman, 3 Beav. 133; Saunders v. Smith, 3 Mylne & C. 711; Col. lard v. Allison, 4 id. 487; Wyeth v. Stone, 1 Story, 273: Root v. Railway Co., 105 U.S. 215; Curt. Pat., $ 440, in which the author says: “Where a patentee seeks an injunction against an alleged infringer, and the evi. dence shows that this infringer, or others, have been in the habit of disregarding the exclusive right con. ferred upon the patentee, and this with knowledge, either actual or implied, on the part of the patentee, the court will dismiss the bill on the ground that the complainant has been guilty of laches, or that there is a want of that exclusive possession which lies at the foundation of erery claim for an injunction." These authorities, enforcing the general rule of equity jurisprudence, compel the sustaining of the demurrer. Cir. Ct., E. D. Mo., Sept. 19, 1884. McLoughlin v. People's Ry. Co Opinion by Brewer, J.


against public policy a court of equity will rescind, notwithstanding the party plaintiff has participated therein, if public policy would be defeated by allowing the instrumeut to stand. Id., SS 695, 6959. So long as the contract continues executory, the maxim "in pari delicto" does not apply at all. Ad. Eq. *175; Spring Co. v. Knowlton, 103 U. S. 49. These principles open the way for equitable intervention here, and nothing appears to induce a denial of the relief sought. It is indeed inferable from the evidence that all the stock. holders of the plaintiff company either expressly assented to the contract of October 5, 1883, or acquiesced for a season therein. But it is showu in Thomas v. Railroad Co., 101 U. S. 71, 83, that a contract not within the scope of the powers conferred on a corporation, and against public policy, cannot be made valid by the assent of every one of the shareholders. Nor is it a sufficient reason for refusing to interfere, that some of the directors who were parties to the indefenBible scheme for private speculation heretofore referred to were active in promoting this suit and in its prosecution. Even for them there is a locus penitentiæ. Spring Co. v. Knowlton, supra. They however are not the complainants. The suit is by the corporatiou, which owes a paramount duty to the public. Its former course was inexcusable indeed; but having retraced its false steps, it is now in the right pathway. Having entered into a contract forbidden by public polioy (as was said in Thomas v. Railroad Co., supra), “it was the duty of the company to rescind or abandon it at the earliest moment." This it has done; but to the end tbat it may the better discharge its obligation to the public, it needs the aid of a court equity to set aside the improvident and illegal contract with which it is embarrassed. The railroad is unfinished. The work of construction has ceased. Although free to proceed, the defendant for many months has done nothing. His inaction is doubtless wise, for were this bill dismissed he could not expect a court of equity to decree the specific performance of his construction contract; and if at law he could recover at all for future work it would be as upou a quantum meruit only. Cir. Ct., W. D. Penn., Aug. 13, 1884. New Castle, etc., R. Co. v. Simpson. Opinion by Acheson, J.

PATENT-SUIT FOR INFRINGEMENT-LACHES - DEMURRER.- Bill for the infringement of patent, alleging unauthorized construction and use of patented invention by defendant for thirteen years, and making no excuse for complainant's failure to assert his rights during that period, held, demurrable. That the general principles of equity jurisprudence control in patent cases cannot be doubted. Rev. Stat., 8 629, 19; also $ 4921, which last section contains these words: "The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by a patent, upon such terms as the court may deem reasonable." Now generally speaking the laches of complainant is sufficient ground for non-interference on the part of a court of equity. Nearly all the life-time of this patent the complainant has remained silent, by his silence consenting to, or at least acquiescing in, the acts of the defendant. To interfere now by injunction would seem manifestly inequitable. That this question of laches can be raised by demurrer and that it is a good defense to a bill in equity, is abundantly sustained by the authorities. In Walk. Pat., $ 597, it is said: “The defense of laches can be made in a demurrer, or in an answer, or in argument on the hearing, without any pleading to support it. But a plea is not appropriate in such a defense; because if the bill shows delay, and is silent about ex

CHATTEL MORTGAGE--EXECUTION AND RECORD MORTGAGOR REMOVING FROM STATE-LACHES IN TAKING POSSESSION-EFFECT OF RECORDING ACTS.A chattel mortgage executed and recorded in another State, where the mortgagor resides and the property is situated, and according to the laws of that State, need not, to preserve the rights of the mortgagee, be filed in this State, upon the mortgagor, with the property in his possession, removing to and becoming a resident of this State. The rule is that the validity and effect of contracts relating to personal property are to be determined by the laws of the State or country where they are made, and as a matter of comity they will, if valid there, be enforced in another State or country, although not executed or recorded according to the law of the latter. And this rule has been applied in a great number of cases to chattel mortgages, where the mortgagor removes with the property into another State, continuing in possession of it, permissible by the law of the former, under circumstances that, had the mortgage been executed in the latter State, by one resident therein, would have made it invalid as against creditors or purchasers. Jones Chat. Mort., $S 260, 299– 301; Offutt v. Flagg, 10 N. H. 46; Ferguson v. Clifford, 37 id. 86; ('obb v. Buswell, 37 Vt. 337; Jones v. Taylor, 30 id. 42; Taylor r. Boardman, 25 id. 581; Ballard v. Winter, 39 Conn. 179; Langwortby v. Little, 12 Cush. 109; Bank v. Danforth, 14 Gray, 123; Martin v. Hill, 12 Barb. 631; Kanaga v. Taylor, 7 Obio St. 134; Wilson v. Carson, 12 Md. 54; Smith v. McLean, 24 Iowa, 3:22; Simms v. McKee, 25 id.341; Feurt v. Rowell, 62 Mo. 524. The court below disposed of the case mainly upon the proposition that the mortgagees were guilty of laches in not taking possession of the property within & reasonable time after they had the right to take possession. It stated this to be the rule: “The law requires a mortgagee, when default is made, to take possession of the property within a reasonable time thereafter in order to maintain and protect his lien as against subsequent creditors and purchasers; and if he suffers the property to remain in the possession and under the

control of the mortgagor, after the expiration of such not lie against a city for consequential injuries to reasonable time after default, it is evidence of fraud, property adjacent to a public street, caused by a change and he is guilty of laches, which should not protect his of the established grade of the street lawfully made by rights against bona fide purchasers of the property the public authorities, and in a proper manner (being without actual notice." This is not supported by au- such an act as one might rightfully do upon his own thority. See Hudson v. Warner, 2 Har. & G. 415; premises), even though the property had been improved Shurtleff v. Willard, 19 Pick. 202; Fuert v. Rowell, 62 with reference to the previously established grade. Mo.524; Steele v. Adams, 21 Ala. 634; Spraights v. The municipal charter expressly empowers the city Hawley, 39 N. Y. 441. (2) Where the statute gives to council to establish the grade of any street, and by a the filing or recording of a chattel mortgage the same vote of two-thirds of the members to change the grade effect as to subsequent purchasers or mortgagees, as of any street after it bas been established. Ses. Laws the delivery of the property to the mortgagee, leaving 1881, oh. 76, subc. 8, 82. By a long current of decisthe mortgagor in possession, will not while such effect ions, almost without dissent, the law has been decontinues postpone the rights of the mortgagee to those clared to be that the owner of property adjacent to a of subsequent purchasers or mortgagees. Keenan v. public street is not entitled to a remedy for injuries Slimson. Opinion by Gilfillan, J.

resulting from the exercise in a proper manner of [Decided Aug. 6, 1884.]

lawful authority in establishing or changing the grade MUNICIPAL CORPORATION-CARE OF STREETS-NEG

of the street. British Cast Plate Manuf'rs v. MereLIGENCE-PROXIMATE CAUSE.— A municipal corpora

dith, 4 T. R. 794; Boulton v. Crowther, 2 B. & tion is bot relieved of the care and responsibility for

C. 703; Smith v. Washington, 20 How. 135; Callender the condition of one of its streets, merely by permit

v. Marsh, 1 Pick. 418; Skinner v. Hartford Bridge Co., ting a railway company to lay out and operate its track

29 Conu. 523; Burritt v. New Haven, 42 id. 174; Radupon and along it. Where several concurring acts or

cliff v. Brooklyn, 4 N. Y. 195; Plum v. Morris Caval & conditions of things, one of them a wrongful actor

Banking Co., 10 N. J. Eq. 256; O'Connor v. Pittsomission, produce an injury, such wrongful act or

burgh, 18 Pemu. St. 187; Green v. Borough of Reading, omissiou is to be regarded the proximate cause of the

9 Watts, 382; Rounds v. Mumford, 2 R. I. 154; Pon. injury, if the injury be one which might reasonably be

tiac v. Carter, 32 Mich. 164; Burlington v. Gilbert, 31 anticipated from the act or omission, and which

Iowa, 356; Roberts v. Chicago, 26 Ill. 249; Quincy v. would not have occurred

without it. In

Jones, 76 id. 231; Hoffman v. St. Louis, 15 Mo. 651; McMahon v. Davidson, 12 Minn. 357 (Gil. 232) it was

Wabash r. Alber, 88 Ind. 428; Shaw v. Crocker, 42 Cal. stated as the rule that it is immaterial how many

435; White v. Yazoo City, 27 Miss. 357. To the extent others may have been in fault if the defendant's actor

of denying a right of recovery for consequential innegligence was an efficient cause of the injury. Iu

juries from an original establishment of grade this Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62), the de

court has recognized the law to be as here declared in fendant negligently left his horses upbitched in a city

Lee v, City of Minneapolis, 22 Minn. 13; Alden v. City street, and they ran away, came into collision with

of Minneapolis, 24 id. 254; O'Brien v. City of St.Paul, and frightened another team properly hitched, which

25 id. 331-334. We have however considered that a also ran away, and came into collision with and in

municipal corporation will be liable for damages jured plaintiff's horse. The court held that defend

caused to private property by grading streets, when a ant s negligence in leaving his horses unbitched was

private owner of the soil over which the streets are the cause of the injury, saying: “The running away

laid would be liable if he were making the same imof the defendant's team was the efficient cause of the

provement upon his own land for his own

use, injury to plaintiff's horse, because it put in operation

O'Brien v. City of St. Paul, supra; Dyer v. City of St. the force which was the immediate and direct cause of

Paul, 27 Minn. 457; Armstrong v. City of St. Paul, 30

id. 299. But this case is obviously not within the limthe injury.” In Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. 488, a fire caused by a spark from

itation of the general principle upon which those cases defendant's engine commenced in a pile of corn-stalks

rest, and is to be governed by the general rule of law

above asserted. In principle there is no difference benegligently left by N. near the track, passed from the

tween the case of injuries resulting from an original corn-stalks to his barn, from his barn to another, and

establishment of a grade and those resulting from an from that to plaintiff's. It was held that the negligence of the defendant in allowing the sparks to escape from

authorized change of an established grade. Authori

ties above cited; and see Karst v. St. Paul, S. & T. F. was a proximate cause of the injury to

R. Co., 22 Minu. 118. In both cases the principle is the plaintiff

. In Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, which was an action for injuries caused by

same; that is, a public right acquired to which indi

vidual convenience and interest are subject. Upon defendant's failure to fence its road, the rule was

the acquisition of the public from the original owner stated that if the injury was one which a man of ordi

of the soil of the right to use the land for the purposes nary experience and sagacity could foresee might prob

of a street, whether that right is acquired by purchase ably ensue from a failure to fence, then the damage

as by condempation proceedings, or by gift or estopwould be sufficiently proximate and direct to entitle

pel, as by dedication and acceptance, the right of the the injured party to recover.” This was followed and

public to such use of the land as may be consistent applied in Maher v. Winona & St. P. R. Co., 18 N. W.

with those purposes becomes as absolute as is the right Rep. 105, in which it was held that the failure to fence

of any owner of land to the use of it for his own purthe railroad might be the proximate cause of the in

poses. Tbenceforth it is the right of the public, subjury, where the plaintiff's horses, which he was driv

ject to any statutory restrictions which may be iming along the highway, were frightened by a train of

posed, to have the land prepared and kept in fit condicars passing, got beyond his control, got away from

tion for use as a street; to have it improved and him, ran upon and along the track into a culvert, and

changed from time to time, as the public need, and the one was killed and the other injured. This court sus

changing circumstances attending its use shall require. tained an instruction to the jury in the language

That changes might be required must be presumed to which we have quoted from the Nelson case. Camp

have been contemplated when the land was taken and bell v. City of Stillwater. Opinion by Gilfillan, C. J.

devoted to the purposes of a street, as incident to the .[Decided July 18, 1884.]

enjoyment of the easement which was then acquired. MUNICIPAL CORPORATION-CHANGE OF GRADE OF The individual proprietor holds his property subject STREET-DAMAGES-SURFACE WATER.-An action will to the public right. He necessarily takes upon him.

the engine

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