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the petition in bankruptoy, certain other creditors had proved July 23, 1866, cb. 219 (14 St. 218, to quiet land
agreed to sell their claims to A. at twenty-five per titles in California,'' but that act was not referred to
cent, had afterward proved their claims in bankruptcy in the complaint, and besides it purports only to con-
and then assigned them to A. The petitioners asked firm the title of the State, which in this case is perfect
that said claims be disallowed on the ground that A. without it. No attempt is made in that act to provide
was a special partner, and that under the statute (1 for the settlement of the rights of conflicting claim-
Ror. Stat. 720, $ 23) no special partner could, save as ants under the State. Congress contented itself with
excepted in the statutes, claim as creditor until the the confirmation of the State's title, and left all who
claims of all other creditors were satisfied. The regis- | claimed under that title to their remedies in the
ter overruled the point, holding that in respect to the courts or other tribunals provided by law for that pur-
assigned claims, A. stood in the position of his assign- pose. California v. Jackson. Opinion by Waite,
ors, and was only a creditor as their representative. C. J.
This decision was sustained by the Bankruptcy Court. [Decided Nov. 7, 1884.)
Held, that couceding the decision to be in effect an ad-

INTERNAL REVENUE-INFORMATION FOR FORFEITjudication that A. was only a special partner, it was

URE-GENERAL VERDICT GOOD.-Upon the trial of innot binding outside of the bankruptcy proceedings formation under section 3372 of the Revised Statutes upon creditors who were not parties to the application, the verdict was returned in this form: “We, the jury, See Hayes v. Heyer, 35 N. Y. 326-330; Innes v. Lan find a verdict for the government, evaluating the sing, 7 Paige, 583. It is argued that proving the debt goods and machinery seized at a sum of $1,000.” The agaiust the estate of the general partvers, and receive claimant moved in arrest of judgment that several of ing a dividend thereon), were equivalent to obtaining a the counts were insufficient, and that the verdict was judgment thereon against the general partners alone, general upon all the couuts, and was vague and uncer. the effect of which would have been to discharge the tain, and not responsive to the issue. The motion was other partner. U. 8.9. Lefiler, 11 Pet. 86, 101 ; Robert- overruled, and judgment rendered for the United sou F. Smith, 18 Johns. 459. The rule, if still subsist. States, and the claimant sued out a writ of error. ing, that the recovery of a judgment against some of Informatious under the revenue laws for the forfeiture the partners of a firm consisting of more, is a bar to a

of goods, seeking no judgment of fine or imprisonment subsequent action against all the partners, would be against any person, are not strictly criminal cases, in wholly ipapplicable to the present case. The reasons which the decisions of the Circuit Court are fival, un-for that rule were, first, that a judgment against a por- less a division of opinion is certified; but they are tion of the partners merges the debt as to them, and civil actions, of which this court has jurisdiction in thus destroys the joint indebtedness; and second,

error, without regard to the sum or value in dispute. that there being already a judgment against some of Rev. Stat., 8 699; Pettigrew v. United States, 97 U. S. the partners, and they being necessary parties to the 385. Yet as has been expressly adjudged, they are so second suit, a second recovery against all would result far in the nature of criminal proceedings as to come in two judgments against the same persons for the within the rule that a general verdict upon several same debt. It is obvious that neither of these reasons

counts, seeking in different forms one object, must be can apply to the case of merely proving a debt against upheld if one count is good. Clifton v. United States, the estates of some of several joint debtors. It is

4 How. 242, 250. As one of the counts in this case is worthy of note however that none of the cases rest

admitted to be good, it is unnecessary to consider the upon the ground bere assumed by the respondent, that objections taken to the other counts. The verdict, recovering a judgment in an action against only two though expressed in bad English, clearly manifested of three joint debtors estops the creditor from after the intention and finding of the jury upou the issue ward claiming that the third was also jointly liable for submitted to them, and the court rightly gave judgthe same debt. Durant v. Abendroth. Opinion by ment upon it. Rev. Stat., $ 954; Parks v. Turner, 12 Rapallo, J.

How. 39, 46; Lincoln v. Iron Co., 103 U. S. 412. Sny(Decided Oct. 7, 1884.]

der v. United States. Opinion by Gray, J.
[Decided Nov. 17, 1884.)



721-INSURANCE-QUESTION AS TO DISEASE. — (1) The JURISDICTION-AMOUNT IN DISPUTE.-The jurisdic- provision in the New York Code of Civil Procedure, tiou of the Supreme Court for the review of the judg- $ 834, that " a person duly authorized to practice physic

or surgery shall not be allowed to disclose any informents and decrees of the Circuit Courts, in so far as

mation which he acquired in attending a patient in a it is affected by the $5,000 limitation, depeuds on the professioval capacity, and which was necessary to enavalue of the matter in dispute in the Supreme Court, ble him to act in that capacity," is obligatory upon and it is the actual matter in dispute, as shown by the

the courts of the United States sitting within that whole record, and not the ad damnum alone which

State in trials at common law. That section provides governs. Hiltou v, Dickinson, 108 U. S. 165. Opinion

that a personi, duly authorized to practice physio or by Waite, C. J. [Decided Nov. 7, 1884.)

burgery, shall not be allowed to disclose any informa

tion which he acquired in attending a patient in a proJURISDICTION - GRANTOR'S TITLE FROM UNITED fessional capacity, and which was necessary to enable STATES ADMITTED, ACT OF 1866, ch. 219.-In a suit for him to act in that capacity.” It is not, and could not the recovery of lauds where both parties claim under well be seriously questioned, that the evidence exclua common grantor, whose title from the United States ded by the Circuit Court was inadmissible under the is admitted, the Supreme Court bas no jurisdiction rule prescribed by that section. Grattan v. Metrofor the review of the decisions of a State court upon politan Life Ins. Co., 92 N. Y. 274; Same v. Same, 80 questions relating only to the title acquired by the sev

id. 281; Pierson v. People, 79 id. 424; Edington v. eral parties under their respective grants from the Ætna Life Ins. Co., 77 id. 564; Edington v. Mutual common grantor, and which are not in themselves of Life Ins. Co., 67 id. 185. But it is suggested that truth a Federal character. Romie v. Casanova, 91 U. S. 379, and justice require the admission of evidence which and McStay v. Friedman, 92 id. 723. Some reliance the statutory rule, rigorously enforced, would exclude, was had in the argument on the act of Congress ap- and that it cau be admitted without disturbing there

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lations of confidence properly existing between physi- SHIP AND SHIPPING-MARITIME DEBTS-FIRST ATcian and patient; that it would not afflict the living TACHMENT GIVES NO PREFERENCE-OTHER CREDITORS nor reflect upon the dead, if the physician should teg- MAY INTERVENE.—By the maritime law the creditor tify that his patient had died from a fever or an affec- first filing a libel aud arresting the vessel does not tion of the liver; and that the rule, as now understood thereby acquire the right to have his debt paid in full and applied in the courts of New York, shuts out, in to the exclusion of other creditors whose debts are of actions upon life policies, the most satisfactory evi-| the same rank and equal merit, and who intervene dence of the existence disease and of the cause of and prove their debts be re or at the time a final dedeath. These considerations, not without weight, so cree in the suit first brought is rendered. In 2 Pars. far as the policy of such legislation is concerned, are Ship. & Adm., it is said: “If the different demands proper to be addressed to the Legislature of that State. are of the same nature, priority in beginning the But they cannot control the interpretation of the stat- suit will not give priority in payment if the other ute, where its words are so plain and unambiguous ag demands are brought to the attention of the court to exclude the consideration of extrinsio circum- | before a decree in the first suit brought is renstances. Since it is for that State to determine the dered.” The rule that a creditor who institutes the rules of evidence to be observed in the courts of her first suit does not thereby acquire priority of right to own creation, the only question is whether the Circuit payment over other creditors of the same class who Court of the United States is required by the statutes have been guilty of no laches, is supported by the folgoverniug its proceedings to enforoe the foregoing pro- lowing cases: The Paragon), 1 Ware, 330; The Amervision of the New York Code. This question must be ica, 16 Law Rep. 261; The Famy, 2 Low. 508; The E. answered in the affirmative. (2) By section 721 of the A. Barnard, 2 Fed. Rep. 712; The City of Tawas, 3 Revised Statutes, which is a reproduction of the 34th id. 170; The J. W. Tucker, 20 id. 129; The Superior, 1 section of the Judiciary Act of 1789, it is declared that Newb. Adm. 186. Aud to the same general effect: "the laws of the several States, except where the Con- The Æolian, 1 Bond, 207, 270; The Fort Wayne, id. stitution, treaties or statutes of the United States 476, 490; The Kate Hinchman, 6 Biss. 367; The Phebe, otherwise require or provide, shall be regarded as rules 1 Ware, 360. In support of his motion the libellant reof decision in trials at common law in the courts of the lies on Ben. Adm. (2d ed.), $ 560, where it is said : "In United States in cases where they apply.” This has claims of the same rank, the one first commencing his been uniformly construed as requiriug the courts of proceedings is preferred in the distribution. The the Union, in the trial of all civil cases at common party first seizing holds the property against all other law, not within the exceptions named, to observe as claims of no higher character." And we are referred to rules of decision, the rules of evidence prescribed | The Globe, 2 Blatchf. 427, vote; The Adele, 1 Ben. 309; by the laws of the States in which such courts are Woodworth v. Ins. Co., 5 Wall. 87. The last case cited held. Potter v. National Bank, 102 U. S. 165; Vance stands on grounds of its own, and has no application v. Campbell, 1 Black. 427; Wright v. Bales, 2 id, 535; to the case at bar. By the maritime law the creditors McNeil v. Holbrook, 12 Pet. 84; Sims v. Hundley, 6 of the same rank have an equal lien or privilege on the How. 1. (3) To the question, in an application for iu- vessel. An eager and grasping creditor ought not to surance upon life, whether the applicant had ever had have it in his power to destroy this equality of privilthe disease of “affection of the liver," the answer was ege, and obtain a preference, by the mere act of in. "No." Held, that the auswer was a fair and true one stituting the first suit to enforce the lien. Such a rule within the meaning of the contract, if the insured had would be unjust to the other creditors, prejudicial to never had an affection of that organ which amounted the owners of vessels, and injurious to the interests of to disease; that is, of a character so well defined and commerce. It would tend to hasten and foster litigamarked as to materially disturb or derange for a time tion, and would introduce into the maritime law that its vital functions: that the question did not require unseemly struggle between creditors themselves pro · him to state every instance of slight or accidental dis- duced by the rule of law which gives the preference to orders or ailments affecting the liver wbich left no the creditor first attaching. We kuow the rule at law trace of injury to health, and were unattended by sub- 1 giving the preference to the first attachment, in its stantial injury or inconvenience or prolonged suffer- practical operation, is often oppressive on debtors and ing. Conn. Mut. Life Ins. Co. v. Union Trust Co. unjust to creditors. For these reasons it has been Opinion by Harlan, J.

abolished in a good many States, and the first attach[Decided Nov. 17, 1884.]

ment made to perform the office, in some measure, of a proceeding in insolvency or bankruptcy, for the

equal benefit of all the creditors proving their debts UNITED STATES CIRCUIT AND DISTRICT within a limited time. The tendenoy of legislation COURT ABSTRACT.*

and the courts is toward the adoption of rules to pre

vent preferences. But the injurious consequences of MORTGAGE FORECLOSURE-ASSIGNEE OF MECHANIC'S rewarding the most exacting creditor with a preferLIEN-NECESSARY PARTY-PURCHASER AT SALE-UN

ence would, for obvious reasous, be much greater in DER MECHANIC'S LIEN CANNOT BE EJECTED.-(1) An admiralty than they are at law. Dist. Ct., E. D. Ark., assignee of a mechanio's lion is a necessary party to a

Oct., 1884. The Lady Brone.

Opinion by Caldbuit to foreclose a mortgage given after the lien com

well, J. menced, although the mortgagee had no kuowledge of

SHIP the existence of the same and the mortgage was filed


OBSERVING of record before the commencement of statutory pro

LIGHTS-MUTUAL FAULT-NEGLIGENCE DECKHAND, ceedings to enforce said lien. (2) A purchaser at the

INJURED-SEVERAL LIABILITY.-A tug is bound to sale of such a mortgage by advertisement acquired no

keep her colored lights in such a position that her tow right to ejeot a purchaser at a sale made under final

will not obscure them, as respects vessels at a distance decree in proceedings to enforce the mechanic's lien, signed to afford. Where the Tug T. had on her star;

requiring the notice which the colored lights are dethe mortgagee under above circumstances being in the position of a subsequent incumbrancer to the mechan

board side the barge M. in tow, loaded with railroad ic's lien holder. Cir. Ct., D. Minn., Oct., 1884. Atkins

cars, partly sheltered by a narrow fore and aft roof v. Volmer. Opinion by Nelson, J.

called an umbrella, which was of such height as to ob

scure the tug's green light as she was going up the *Appearing in 21 Federal Reporter.

North river, and steamer H., crossing the river to the



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northward and seeing no colored light, supposed the vail in Indiana against an assignee of a judgment who T. was going down river instead of up river, and pays value and takes the assignment in good faith. ported so as to go astern of the T., as she supposed, Flanders v. O'Brien, 46 Iud. 284; Huffman v. Copeland, but too late discovered the error and came in collis- 86 id. 224, and cases cited. The complainants however jon, held, that the collision was caused in part by the sue, not as assignees, but as judgment plaintobscuration of the green light, for which the T. was iffs, and

therefore subject to the genible. Held, that the H. was also in fault for eral doctrine, far it is pertinent to want of any proper lookout, when going at the rate of the question presented; but in my judgment it has thirteen miles in crossing the river, as such a lookout little or no application. The policy of the recording might have discovered that the T. was going up river acts is not involved or material to be considered, exin time for the H. to avoid her. A deck band on the cept incidentally, because the deeds in controversy are H. having been injured by the collision without his not assailed for want of registration, but for alleged own fault, held, that he had a several claim for his fraud in their execution. The attack is not made whole damages against the T., and the T. being re- under the recording act quoted from in argument, but sponsible, and having a right to indemnity from the under another section (Rev. Stat. 1881, $ 4920), which H. for one-half what the T. must pay by reason of the declares that all conveyauces of lands made with incommon fault of both vessels, held, that the usual de. tent to defraud creditors "shall be void as to the percree might go against both, without considering the sons sought to be defrauded; "and only as it may afquestion whether the deck hand, as a fellow laborer, fect the rights of parties under this act can it be macould have maintained a separate suit against the H. or terial to consider the law concerning the registration her owners alone. It is unnecessary to consider the of deeds. The question presented therefore is whether question which has been raised by counsel, whether or not, under the facts alleged in the bill, the respondthe deck hand on board the H., is precluded from re- ents who demur can claim title under unrecorded covering any damages of her, or of her owners, by deeds, of which they had no knowledge when they reason of any fault in her navigation, on the ground | purchased, to the injury of the plaintiffs, as against tbat he was a fellow-servant of the pilot in charge. The whom the deeds were in fact fraudulent and void, or T., being in fault, is answerable for the whole damage voidable. As against a prior mortgage or deed honcaused bim, and the liability of the T. is not a mere estly made to a good faith purchaser, the general lien joint liability with the H., though both are found in of a judgment must unquestionably yield; but this by fault. The T., for its tort, is seyerally liable for the no means supports the proposition involved in the whole damage. The Atlas, 93 U. S. 302; Chartered facts presented, that one may take a title apparently Mercantile Bank y. Netherlands, etc., 9 Q. B. Div. 118; | perfect of record, and which seems of record to be, as 10 id. 521, 546. The defense that he was a fellow-la-in fact by law it is, subject to the lien of a judgment, borer with the pilot of the H., even if possible to the and afterward upon learning that fraudulent deeds H., would be no defense to the several liability of the had been made, be allowed to claim title through them T. Iu having to pay for his injuries, the T. sustains in order to defeat the lien of the judgment, though at damages by the collision to that extent, as much as if the time of his purchase he had no kuowledge of the the injury were to cargo on board the T. or the H., existence of the deeds, and supposed he was getting for which she was bound to pay; and as this injury the title as it appeared of record. It is true that the arose from the fault of both vessels, the H. must owner of laud, or one asserting title, is bound by the auswer over for half of what the T. is obliged to pay; contents and recitals of all deeds in the chain of title and the T. being answerable for the whole damage, which he claims. But it is not true, as I suppose, and has a right to require the H. to pay one-balf of what has never been decided, that a purchaser is bound by she will be obliged to pay to him on account of the the contents of unrecorded and unknown deeds which common fault of both. The Eleanora, 17 Blatchf. 88– were not essential to the chain of title as it appeared 105; The Hudson, 15 Fed. Rep. 162, 164; The Canima, of record, or as otherwise made known to him. It 17 id. 271, 272; The C. H. Foster, 1 id. 733. There is no often happens, as may well be supposed, honestly as evidence of any personal negligence on the part of the well as for fraudulent purposes, that titles after vardeck hand. He was not assigned to duty as lookout, ious mesne conveyances return to some prior owner, 80 far as appears, and he was apparently engaged in and if the conveyances which constitute such a loop in other duties. It was not his business to leave the du- the chain of title should, for any reason, have been ties assigned him and to act as lookout without orders. left off the record, it would be a startling proposition Dist. Ct., S. D. New York, July, 1884. Briggs v. Day. | indeed that all subsequent grantees must take notice Opinion by Brown, J.

of their contents. Under such a doctrine, if not posiLIMITATION-RUNS FROM DISCOVERY OF FRAUDS

tively dangerous, the registry laws would certainly be LIEN OF JUDGMENT-BONA FIDE PURCHASER-TITLE

made comparatively useless. Cir. Ct., D. Ind., Sept. 6,

1884. McAlpine v. Hedges. Opinion by Woods, J. THROUGH UNRECORDED DEED-RIGHTS OF PURCHASER. -(1.The making of a deed to defraud creditors, and [(1) See 24 Am Rep. 45, 517; 31 Eug. Rep. 723.- ED.) keeping it off of the record by all of the persons con. cerned in and cognizant of the transactions, combined with their purposed silence upon the subject, is such a MISSOURI SUPREME COURT ABSTRACT.* concealment as will prevent the statute of limitations from running until there has been a discovery of the

ADMINISTRATOR'S SALE-ERROR IN DEED-EQUITY fraud. See Meader v. Norton, 11 Wall. 442; Carr v. Hilton, 1 Curt.C. C. 238; Vane v. Vane, L. R.,8 Ch. App.

TO TITLE-Where a purchaser of land at administra

tor's sale pays the purchase-money, and the same is 383; Rolfe v. Gregory, 4 De G., J. &. S. 576; Hovenden applied in discharge of the debts of the decedent, but . Anuesley, 2 Schoales & L. 634; Buckner v. Calcote,

the land is not correctly described in the adminis28 Miss. 568. Cited to the contrary: Wynne v. Cornelison, 52 Ind. 319; Jackson v. Buchanan, 59 id. 390;

trator's deed, an assignes of the purchaser will be enMusselman v. Kent, 33 id. 458; Pilcher v. Flinn, 30 id.

titled to a decree in equity correcting the error and

divesting the legal title to the land out of the heirs of 202; Boyd v. Boyd, 27 id. 429. (2) The doctrine that

the decedent and vesting it in him. Grayson v. Wedthe general lien of a judgment upon land is subject to

dle. Opinion by Henry, J.
any and all adverse equities or claims, whether secret
aud unknown, or recorded and kuowa, does not pre-

* To appear in 80 Missouri Reports.

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REPLEVIN-EXCESSIVE TAX.-Repleviu will not lie against the collector of taxes to recover personal property seized to satisfy a tax levied by the proper officer, and it does pot matter that the levy is excessive, and that fact is apparent on the face of the tax-book; citing Rubey v. Shain, 54 Mo. 207; and Ranney v. Bader, 67 id. 476, and distinguishing Henry v. Bell, 75 id. 194. Mowrer v. Helferstine. Opinion by Henry, J.

A.DMINISTRATION-ORDER OF SALE OF REAL ESTATE, IMPEACHMENT OF.--Au order of sale of real estate is not such a final order as will conclude the heirs of the decedent from showing, upon the incoming of the report of sale, that there are no debts, or that there are personal assets sufficient to pay all debts, or any other fact tending to show that the order ought not to have been made. Merritt v. Merritt, 62 Mo. 150; Henry v. McKerlie, 78 id. 416. Fenix v. Fenix. Opinion by Marrin, Comr.

CLOUD ON TITLE-CHANGE OF VENUE-VOID DEED. --Iu an action against several defendants, originatiug in Hickory county, some of the defendants applied for a change of venue, and the court ordered a change, as to them, to Pettis county. The court in Pettis county afterward reudered judgment against one of the defendants who had not joined in the application for the change, and who never appeared to the action and was served only by publication; and his land was sold to satisfy the judgment. In a suit brought by this party to set aside the sheriff's deed, these facts, among others, appearing in the petition, held, that the petition was bad on demurrer; that the court in Pettis county obtained no jurisdiction of this party ; that the judgment was therefore a nullity as against him, and the deed was void, and so there was nothing upon which a court of equity could act. Janney v. Spedden, 38 Mo. 396; Odle v. Odle, 73 id. 289. Sherwood, J., agreed that no title passed by the sheriff's deed, but held that it was a cloud upon the plaintiff's title, which ought to be removed by a suitable decree. Holland y. Johnson. Opinion by Ewing, Comr.

EVIDENCE-BOUNDARY OF LAND-DECLARATIONS OF PERSON IN POSSESSION.--In ejectmeut for a strip of land lying on the dividing line between plaintiff and defendant, defendant had offered evidence of acts and declarations of plaintiff's grantor, since decerised, tending to fix the live as claimed by defendant. Plaintiff in rebuttal offered evidence of declarations to the contrary made by his grantor while in possession. Held, that this latter evidence was competent. The court did not err in admitting the statement of Mrs. Jeffries in evidence. She was the owner and in possession of the land at the time the declarations were made and has since deceased. 1 Greenl. Ev., $ 109, and authorities cited in note b; also Hunnicutt v. Pey. ton, 102 U. S. 333; Darrett y. Donnelly, 38 Mo, 493; State to use, etc., v. Schneider, 35 id. 533; Burgert v. Borchert, 59 id. 80. See note to Deming v. Carrington, 30 Am. Dec. 595; S. C., 12 Conn. 1. In the State of Massachusetts where this subject has been much discussed, it is held that to be admissible such declarations must be made by persons in tho possession of land, and in the act of pointing out their boundaries. Bartlett v. Emerson, 7 Gray, 174; Daggett v. Shaw, 5 Metc. 223; Long v. Colton, 116 Mass. 414. The declaration derives its force from the fact that it accompanies aud qualifies an act and is thus a part of the act. Bender v. Pitzer, 27 Penn. St. 333. The weight of authority seems to be that in questions of private boundary declarations of particular facts, as distinguished from reputation, are admissible in evidence when made by persons in possession of the land when the declarations are made, or who are on the land at the time, and are shown to have knowledge of that whereof they speak. 102 U. S. 333. Lemmon v. Hartgook. Opinion by Ewing, Comr.

SALE-CONDITIONAL-MEANING OF WORDS - QUESTION FOR JURY -- PRACTICE SUBMITTING CASE WEIGHT OF EVIDENCE.--(1) A sale of a horse to be kept by the seller till a future day, and if then brought to the purchaser to be paid for, there being no payment or formal delivery, and the purchaser obtaining 110 possession further than that the horse was present when the conversation took place, is not a sufficient sale and delivery agaiust one in the condition of a subsequent purchaser. The first sale was conditional only. (2) It is the province of the jury to find what words were used and the meaning of them, where an oral bargain is made. But the court may inform the jury what interpretations of the language used would be possible and permissible, and the jury must determine the meaning within the limits prescribed. (3) A judge may withhold a case from the consideration of the jury when there is no evidence upon which they can in any justifiable view find for the party producing it, upon whom the burden of proof is imposed. (4) It is not enough to require submission to a jury, that there may be a crumb or scintilla of evidence. It must be evidence of legal weight. Beaulieu v. Portland Co., 48 Me. 291; Brown v. E. & N. A Railway, 58 id. 384, and cases; Rourke v. Bullens, 8 Gray, 549. Connor v. Giles. Opinion by Peters, C. J.

CONTRACT–SALE OF LAND-RESCISSION—RIGATS OF SELLER AND PURCHASER.-A contract was made between two persons for the sale by one to the other of a lot of land. The purchaser made a part payment and went into the possession and occupation of the premises. Afterward the contract was rescinded and the purchaser brought an action for what he had paid toward the land and recovered without any deduction for the use of the premises. Held, in a writ of entry by the seller, that he was entitled to recover with the land the value of the rents and profits. Harkness v. McIntire. Opinion by Libbey, J.

LIMITATIONS- ADMINISTRATOR INBANE PERSON - STATUTE i872, CHAPTER 85. The limitations of the statute 1872, Chapter 85, for presenting claims against an estate to the administrator, and bringing an action thereon, apply to claims held by an insane person, though such person has no guardian during the two years next after the notice of the appointment of the administrator. Baker v. Bean), 74 Me. 17; Hall v. Bumstead, 20 Pick. 2; Van Steenwyck v. Washburn, 28 Alb. L. J. 483. Whether sound public policy required an exception from the limitation in favor of insane persons and iufants, was a question for the determination of the Legislature. It did not deem it wise to make such exception. A construction by the court making it would be judicial legislation. We know no rule for the construction of statutes which would authorize it. Rowell v. Patter son. Opiuion by Libbey, J.

NEGOTIABLE INSTRUMENT—FAILURE OF CONSIDERATION-PAYMENT IN GOODS-BANKRUPTCY OF MAKER. -Plaintiff held notes against defendant; defendaut delivered goods to plaintiff in payment of the notes; before the notes were surrendered by plaintiff the defendant was declared a bankrupt and the sale became thereby void. Held, that the plaintiff could recover upon the notes upou the ground that the consideration for a promised surrender of the notes had failed. The assignment in bankruptcy, by its retroactive effect, rendered the sale to the defendant void. A vendor in possession impliedly warrants his title to tho thing sold. Thurston v. Spratt, 52 Me. 202; Hunting. don v. Hall, 36 id. 501. For the breach of warranty,

*To appear in 76 Maine Reports.

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or failure of consideration, the purchaser can rescind. Crom. M. & R. 223; Rideal v. Fort, 11 Ex. 847; Mag-
Marston v. Knight, 29 Me. 341; Bryant v. Isburgh, 13 nay v. Burt, 5 Q. B. 381. In a note to Stokes v.
Gray, 607. Suing the note rescinds the sale. The de- White, supra, in the edition by Hare and Wallace,
fendant contends that the object of the sale was to careful annotators, it is said, upon the authority of the
defraud the seller's creditors. He cannot set up such cases determined in the Court of Exchequer Cham-
a defense. Butler v. Moore, 73 Me. 151. The pur- ber, that "au arrest by the sheriff, under a writ from
chaser does not get that for which he was to pay. It | any of the Queen's Courts, of a person privileged from
is the same rule as that which applies in favor of a arrest by reason of attendance as a wituess under the
buyer who buys forged shares in a corporation; or process of another court, does not form the ground of
forged bills or potes; or who gets an article different any action at law for damages, but is only the subject
from that which was described in the sale. He can of an application to the court, under whose authority
recover back money if he paid money; or recover in the party had been compelled to appear as a witness;
specie any property passed over to the seller. Here the the privilege being, not that of the person, but that of
buyer has in his own hands the note which he was to the court, and therefore of discretionary allowance."
surrender for the goods, and can collect the same. Smith v. Jones. Opinion by Peters, C. J.
Eichholz v. Banister, 17 C. B. (N. S.) 708; Chapman
5. Speller, 14 Q. B. 621; see Benj. Sales (3 Am. ed.), $
2, and cases in note. Sup. Ct. of Maine, May 5, 1884.

Maxwell v. Jones. Opinion by Peters, C. J. (76
Me. 135.)


COMPANY PROXIMATE ARREST-PRIVILEGE OF WITNESS FROM-ACTION FOR CAUSE - DEFECTIVE MACHINERY - PRESUMPTION OF DAMAGES DOES NOT LIE MOTION TO DISCHARGE DUTY TO INSPECT.-(1) In the operatiou of a freight PROPER.–Au actiou for damages does vot lie agaiust train in the night the train broke apart, and the fora plaintiff for the arrest upon civil process of a defend- ward part of tbe train, being afterward stopped, was ant who was at the time privileged from arrest as a ruu into by the detached rear cars, including the cawitness returning home from court. The precise ques- boose, and the conductor, who was in the caboose, was tion here presented has not received very much at- killed by the collision. Evidence considered as showtentiou from courts, and there is an almost total ab- ing that the immedate cause of the breaking a part of sence of judicial expression in favor of the plaintiff's the train was the letting off of a brake on one of the position where the privilege is at commou law and not rear cars from the jar of the car in its motion, the by statute. The remedy by actiou was established brake being so worn that it would not remain wound long ago in New York by statutory enactment, which up when the car was in motion. The fact that a sudis an implication that the remedy did not exist there den increase of the speed of the locomotive may have at common law. And this accounts for intimations in coutributed with the defective brake to cause the cases in that State that damages for a breach of the train to break apart does not prevent the defective privilege are recorerable. Paine and D. Prac, Arrest; brake being deemed a legal and proximate cause of the Suelling v. Watrous, 2 Paige, 314; Salhinger v. Adler, resalt. Considered further that the stopping of the 2 Robt. 704. Some English statutes give a right of ac- forward part of the train, and the subsequent collision tion ju some cases, or establish other special remedy, and injury, may be referred to the defective brake as for a violation of the privilege of freedom from arrest; a proximate cause, within the principle that tbe wrongfrom which an implication arises that no such remedy doer is responsible for injuries which might reasona. exists at the common law in that country. Tidd's bly have been anticipated as a result of his misconPractice lays down the various remedies that are avail- duct. Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); able for a violation of the privilege from arrest be- Jobuson v. Chicago, M. & St. P. Ry. Co., 16 N.W. Rep. longing to witnesses and all other persons or parties 488; Mo Mahon v. Davidson, 12 Minn. 357 (Gil. 232); in necessary attendance upou courts, and omits all | Campbell v. City of Stillwater, 20 N. W. Rep. 320. mention of a right of action for damages. Text writ- | The subsequent collisiou is further removed from that ers generally are silent upon the question. Iu 2 Add. cause in the order of events, but is it so in its causal Torts (4th Eng. ed.), 796, it is said however that “the relation? The answer, upon principles recognized as privilege does not form the ground of any action at being withiu the scope of the maxim causa proxima law.” And in Cooley's Con. Lim. (5th ed.) 162 (*135), non remota spectatur, is not difficult. The principle is it is said, in note: "The arrest is only voidable; and well settled that a wrong-doer is at least responsible in general the party will waive the privilege unless he for all the injuries which resulted as natural conseapplies for discharge by motion or on habeas corpus." quences from his misconduct-ouch cousequences as Not many decided cases touch the point. The early might reasonably have been anticipated as likely to experimental actions were against officers, and all of occur. Griggs v. Fleckenstein, supra; Nelson v. Chithem failed. But much of the reasoning of the courts cago, M. & St. P. Ry. Co., 30 Minn. 74; Johnson v. really went against any action, disregarding any dis- Chicago, M. & St. P. Ry. Co., supra; Martiu v. North tinctiou between officer and party. The early cases Star Iron Works, 18 N. W. Rep. 109; Savage v. Chiare cited and commeuted upon in Carle v. Delesder-cago, M. & St. P. Ry. Co., id. 272; Railroad Co. v. Kelnier, 13 Me. 363. See Chase v. Fish, 16 id. 132. Some logg, 94 U. S. 469; Lane v. Atlantic Works, 111 Mass. phases of the question are touched in later cases. Wil- 136; Hill v. Winsor, 118 id. 251; Fairbauks v. Kerr, 70 marth v. Burt, 7 Metc. 257; Aldrich v. Aldrich, 8 id. Penu St. 86; Sheridan v. Brooklyn City, etc., R. Co., 102; Edward Thompson's Case, 122 Mass. 428; Person 36 N. Y. 39: Lake v. Milliken, 62 Me. 240; Weick v. 6. Grier, 66 N. Y. 124. Several English cases take Lander, 75 Ill. 93. And whether the injury iu a parstrong ground against the maintenance of such an ac- ticular case was such natural and proximate result of tion. In Yearsley v. Heane, 14 M. & W. 322, it is said: the wrong complained of, is ordinarily for the deter"The protection is limited to the fact of the individ- mination of the jury, (2) The use by a servant of deual 80 arrested being entitled to be discharged. Iu fective and unsafe machinery delivered to him for use the same case it was said by Pollock, C. B., "Did the by the master, although the servant may have been Legislature mean to give more than this, that if the guilty of negligence in using it, does not relieve the party was arrested he might be discharged, whereby master from responsibility to a fellow servant injured he has the full benefit of the protection ? I think not. thereby on account of the unsafe condition of the maEwart v. Joues, 14 M. & W. 774; Stokes v. White, 1 chinery furnished. Drymala v. Thompson, 26 Miun.

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