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dure, which section provides that the plaintiff may construction here. Cronin v. Stoddard. Opinion by
RAILROAD-LICENSE FEES-CONSTRUCTION OF STAT-
Kingston Dock Co. v. La Marche, 8 B. & C. 42; Leeds [Decided Nov. 25, 1884.)
& Liverpool Canal v. Hustler, 1 id. 424; Stourbridge
Caval Co. v. Wheeley, 2 B. & Ad.792; Gildart v. GladLICENSE-OMISSION TO EXECUTE BOND CREATES NO
stone, 11 East, 685. The fee of the streets being in the "VACANCY" INVALID LICENSE NO DEFENSE.-The
city for public purposes and upon public trusts, and omission of an excise commissioner elected under the
the use of the streets being given to a private corporaact of 1874 (ch. 444) to execute an official bond ap
tion for private gain without compensation, and the proved by the supervisor of the town, does not create
corporate authorities of the city being the representa3 Facancy; the omission at the utmost only furnishes
tives of the public in the assertion of their rights, the cause for a forfeiture of the office; and a vacancy can
principles of construction stated should be held to apbe effected only by a direct proceeding for that pur
ply the same as between corporations and individuals. pose. To avoid the penalty imposed by the excise law
The strictest rules of interpretation can therefore be (Laws of 1857, ch. 628) a party desiring to sell intoxica
properly in voked. The ordinance was therefore valid ting liquors must see to it that he obtains a license from those clearly authorized to grant it.
as to the city railroads which were required by their
Where therefore because of the failure of an excise commis
charters or by contract with the city to pay a given
sum to the city in consideration of the privileges consioner to procure the approval of the superintendent
ferred. In cases of a grant by legislative power the to the bond presented by him, another was elected to fill the supposed vacancy, held, that a license signed
right to collect the amount fixed as a license confers by the person so elected by one commission was no
express authority to enforce the payment of the same, defense to an action to recover a penalty for selling
aud in no seuse can it be considered as the imposition liquor without license.
of a tax or a penalty which is witbout the sanction of This was held in Fout v.
law. Stiles, 57 N. Y. 399, in the case of a commissioner of
The said ordinance was subsequently repealed, highways, where the same question came up on the
but the repealing resolution was thereafter repealed. construction of a statute similar to the one before us.
Held, that the ordinance was thereby restored to full The Legislature uses different language when it in
force and efficacy. People v. Davis, 61 Barb. 456; tends that an act or omission shall create a vacancy,
Vandenburgh v. Greenbush, 66 N. Y. 1. It may be
added that the claim of the plaintiff to recover in this as in Laws of 1875, ch. 180, $ 4, where the mere acceptance of an election or appointment by a town auditor
action does not rest upon the ordinance alone, but deto any other towy office creates a vacancy in the first
pends upon the statute, which requires the payment office, or section 5, where neglect to accept has the
of the license fees to the city independent of any ordisame effect upon the office named. In People ex rel.
There would seem to be no valid reason why Kelly v. Common Council of Brooklyn, 77 N. Y. 503,
the city should not maintain an action to recover the the statute under consideration declared that upon the
license fee provided for by the statute.
It clearly happening of a certain event the office “should be
confers upon the city the right to such fees, and percome vacant." The event happened, and it was held
haps even without the ordinance an action would lie that no proceedings were pecessary, for the effect of
for their recovery. Mayor, etc., v. Broadway and Seve the statute was the removal of the incumbent. The
enth Ave. R. Co. Opinion by Miller, J. differing language of the statutes will not permit that
[Decided Nov. 25, 1884.]
UNITED STATES SUPREME COURT AB- “all legal and equitable rights and interests therein
and thereto;” but the rights of the parties in this suit
are not affected by it, and must be governed by the TRUST-LIEN OF JUDGMENT — REAL ESTATE"
principles of the common law in force when they beBANKRUPTCY -- POWER OF APPOINTMENT DOES NOT
came fixed. It is indeed a rule well established in PASS. The statute of Illinois in force at the time and England, and recognized in this country, that where a governing the case was sec. 1, ch. 57, Rev. Stat. 1845, person has a general power of appointment, either by which after providing that judgments should be a lien
deed or by will, and executes this power, the property on the real estate of the judgment debtor, provided as
appointed is deemed in equity part of his assets, and follows: “The term “real estate in this section shall subject to the demands of his creditors in preference be construed to include all interest of the defendant
to the claims of his voluntary appointees or legatees. or any person to his use, held or claimed by virtue of This rule is stated by Mr. Justice Gray in Clapp v. In. auy deed, bond, covenant or otherwise, for a convey
graham, 126 Mass. 200, to have had its origin perhaps auce, or as mortgagee or mortgagor of lands in fee, for in a decree of Lord Somers, affirmed by the House of life or for years. Except so far as modified by this Lords, in a case in which the person executing the act, the common law on the same subject was in force
power had in effect reserved the power to himself in in Illinois by express adoption. Rev. Stat. 1845, p. 337, granting away the estate. Thompson v. Towne, Prec. $1. In Spindle v. Shreve, 111 U. S. 542-547; s. c., 4 Ch. 52; 8. C., 2 Vern. 319. But it was frequently afterSup. Ct. Rep. 522, it was stated to be the law in Illi
ward applied to cases of the execution of a general nois that where the legal title to lands is in trustees,
power of appointment by will of property of which the for the purpose of serving the requirements of an act
donee had never any ownership or control during life. ive trust, the judgment creditor had no lien and could
In re Harvey's Estate, L. R., 13 Ch. Diy., 216. That acquire none at law, but could obtain one only by fil
doctrine however has no applicatiou in the present ing a bill in equity for that purpose, according to the
case. (2) A power of appointment does not pass to the provisions of section 49 of the Chancery Practice Act assignee in bankruptcy of the person in whom the of that State. Rev. Stat. 1845, p. 97. It was otherwise power resides. Jones v. Clifton, 101 U. S. 225. Bran. if the trust was merely passive, such as those de
dies v. Cochrane. Opinion by Matthews, J. scribed iu the section defining real estate as subject to
[Decided Dec. 1, 1884.] the lien of judgments already quoted. Miller v. Dav.
VENDOR AND PURCHASER-PURCHASE OF SECURITIES idson, 3 Gil. 518; Baker v. Copenbarger, 15 Ill. 103;
-PAYMENT-DISCHARGE OF LIEN-PAROL EVIDENCE Thomas v. Eckard, 88 id. 593. The rule at common
AS TO CONSIDERATION-PRACTICE-SUBROGATION.-(1) law and the corresponding jurisdiction of chancery as
On or about the 19th of December, 1870, H. T. and M. to equitable estates are fully explained in Morsell v.
T. purchased of D. a tract of land in the city of ChiFirst Nat. Bank, 91 U. S. 357 ; Lessee of Smith v. Mc
cago, which they afterward caused to be laid off into Cann, 24 How. 398; Freedman's Savings & Trust Co.
blocks and lots. The blocks were numbered 1, 2 and v. Earle, 110 U. S. 710. Prior to the enactment of 1 &
3. A part of the purchase money was paid by them in 2 Vict., ch. 110, it was settled in England that at law cash, and for the balance they executed four joint a judgment against the party having a power of ap
notes, each for the sum of $5,373.67%. payable at difpoiutment, with the estate vested in him until and in
ferent times, with interest, secured by a deed of trust default of appointment, was defeated by the subse
on the property to A. as trustee. Prior to September, quent execution of the power in favor of a mortgagee. 1872, M. T. solå some of the lots, partly for cash aud Doe v. Jones, 10 Barn. & C. 459; Tunstall v: Trappes, partly on credit. On the 5th of September, 1872, an 3 Sim. 300. And it was held to be immaterial that tbe
oral agreement was made by which M. T. was to take purchaser had notice of the judgment (Eaton v. Sanx
all the cash and notes that had been received from ter, 6 Sim. 517), or that a portion of the purchase sales, and all the unsold parts of block 2, and all but money was set aside as an indemnity against it. eight lots of those unsold in block 3, pay the debt to Skeeles v. Shearly, 8 Sim. 153; S. C., on appeal, 3
D., and give H. T. all of block 1, and eight lots in Mylne & C. 112. In this case Sir John Leach, the vice
block 3, clear of the incumbrance of the trust deed to chancellor, decided that the effect of the transmission A. In part execution of this agreement, M. T. at the of the estate by appointment was that the appointee time conveyed to H. T. bis interest in block 1, and in takes it in the same manner as if it had been limited
the eight lots in block 3. H. T. did not convey to M. to him by the deed under which the appointer takes in
T. until December 20, 1872. On that day, for the condefault of appointment, and consequently free and sideration of $100, as expressed in the deed, he released disconnected from any interest that the appointer had
and quitclaimed to M. T. in fee simple all his title and in the tenements in default of appointment; that as
interest in the unsold lots in block 2, and in block 3, the appointee is in no sense the assignee of the ap
except the eight lots which had been conveyed to him pointer, he cannot be affected by judgments which af
by M, T., and at the same time transferred to M. T. all feot only the estate and interest of the appointer, and
his interest in the moneys and securities which bad that being so, the circumstance of his having notice of
been received for the lots sold. M. T., finding himself such judgments is immaterial. The statute of 1 & 2 unable to pay the note of D., which became due in DeVict., ch. 110, altered the law in this respect by mak
cember, 1872, and the interest on the other notes, ening judgments on actual charge on the debtor's prop
tered into an agreement with H., by which H. was to erty, where he has at the time the judgment is entered
take the property off his hands, as he took it from H. up, or at any time afterward, any disposing power T., pay the debt to 1)., and relieve the premises conover it which he might, without the assent of any veyed to H. T. from the lieu of the trust deed to A. other person, exercise for his own benefit, so that it
Under this agreement M. T. conveyed the part of the would continue to bind the property, notwithstanding property to which he held the title to H. by deed, for any appointment. 2 Sugd. Powers (7th Lond. ed.), 33;
the expressed consideration of $16,000, and transferred Burton Real Prop. (8th Lond. ed.) 283; Hotham v.
to him all debts due for lots sold. This deed was dated Somerville, 9 Beav. 63. In Illinois the definition of
December 28, 1872. H. at the same time orally asthat real estate which is made subject at law to the
sumed the payment of the debt to D., that being the lien of judgments was enlarged by the act of July 1, only consideration for the transfer. At the time of 1872 (Hurd's Rev. Stat. 1883, p. 676), so as to include
this transfer H. borrowed from R., through H. & B., * Appearing in 5 Supreme Court Reports.
his agents, $10,000, for which he executed two notes,
payable three years from date, one for $6,000 and the it is not void, but only voidable. The sovereign alone
ORIO SUPREME COURT ABSTRAUT.*
MANDAMUS-PUBLIC OFFICER-WHEN DOES NOT LIE. was made on the 15th of January, and the other, being the principle is too firmly established to be ques. $5,641.87, on the 29th. On the day the last payment tioned, that where a public officer is invested with diswas made, and after the notes had been taken up, B. cretionary power concerning the performance of a went to A. with them, and requested him to release public duty required at bis hands, or wherever in deblock 2 from the lien of the trust deed to him. He termining the course of official action he is called upon stated to A. that he was the owner of the notes, and
to use official judgment and discretion, his exercise of thereupon A. executed a release of block 2, which B.
them in the absence of bad faith, fraud, and gross signed and acknowledged with him. In this release | abuse of discretion, will not be controlled or directed B. is described as the legal holder of the unpaid by mandamus. Free Turnpike Co. v. Sandusky notes.” After this H. paid H. & B. the money they County, 1 Ohio St. 149; State ex rel. Anderson v. had advanced to take up the notes from the bank.
Holmes County, 17 id. 608; Lake Co. v. Ashtabula Co., Held, that R. was not a purchaser of the notes due to
24 id. 393, 401; Moses Mand. 78: High Ex. Rem., $ 24; D., but that said notes were paid by H. with his own
United States v. Seaman, 17 How. 225. State v. Moore. money, according to the agreement made with M. T.,
Opinion by Owen, J.
CONTRACT–BENEFIT OF THIRD PERSON-STATUTE OF paid, and from that time the lien on block 1 was dis
LIMITATIONS-COSTS-INTEREST ON,FROM DATE OF JUDGcharged. (2) That parol evidence of oral agreements
MENT.-An agreement made on a valid consideration is admissible to prove any other consideration not
by one person with another, to pay money to a third, mentioned in a deed, provided it be not inconsistent
can be enforced by the latter in his own name. Crumwith the consideration expressed in it. (3) Where re
baugh v. Kugler, 3 Ohio St. 549; Bagaley v. Waters, 7 lief has been asked in a bill on some other different and id. 367; Trimble v. Strother, 25 id. 381; Thompson v. distinct ground, equity will not relieve by way of sub- Thompson, 4 id. 333. And the facts that the instrurogation. The doctrine of subrogation held not appli
ment evidencing such agreement is under seal, and cable to the facts of this case. Richardson V. Traver.
that such third person is not named therein, do not af. Opinion by Waite, C. J.
fect the right to enforce it. Coster v. Mayor, 43 N. Y. (Decided Dec. 8, 1884.]
411. The proposition that the rule invoked is confined
in its operation to simple and unsealed contracts, is BANK-NATIONAL POWER TO PURCHASE REAL ES
not well founded. Coster v. Mayor, 43 N. Y, 411; TATE–Rev. STAT., $ 5137.-A national bank has the
McDowell v. Laev, 35 Wis. 171; Rogers v. Gosnell, 51 power to purchase such real estate as shall be mort
Mo. 466. The plea of the statute of limitations is gaged to it in good faith by way of security for debts pre- equally untenable. The action was properly proseviously contracted; and it in order to secure the same
cuted upon the unwritten instrument which evidenced debt it purchases other real estate not mortgaged to Emmitt's liability. In his “fifth defense" Emmitt it, that does not affect the title to the land it was au
avers that a long time prior to the filing of the plaintthorized to purchase. The National Banking Law iff's petition herein he contended that he was not (Rev. Stat., $ 5137) provides that a national banking bouud to pay the judgment, atterly refused to pay it, association may purchase such real estate as shall be and “rescinded said alleged promise.” A rescission mortgaged to it in good faith by way of security for of the contract sued upon by the parties to it prior to debts previously contracted. The power to purchase the plaintiff's assenting to it, would have been a good the real estate in dispute was therefore clearly con- defense. Trimble v. Strother, 25 Ohio St. 378; Brewer ferred by the statute. The fact that in order to secure v. Maurer, 38 id.554; Crowell v. Hospital of St. Barnathe same debt it purchased other real estate not mort- | bas, 27 N. J. Eq. 650. But the rescission contemplated gaged to it, cannot affect the title to the land which it by this principle is one by the parties, whereas the Was authorized to purchase; but if there was any force averment of Emmitt is that he refused to pay the in this objection to the title, it could not be raised by judgment, and he rescinded the promise. It was not the debtor, for where a corporation is incompetent by its charter to take a title to real estate, a conveyance to
*To appear in 42 Ohio State Reports.
in his power to do this. The term “rescinded,” as be session, in favor of judgment creditors, subject to the
Editor of the Albany Law Journal : St. 413), and as by force of section 1319 of the Revised
Permit me through your columns to call attention Statutes, his costs are carried into his judgment;
to section 1674 of the Code of Civil Procedure, and and as he is liable at any time after failure to sue out
what seems to me to be a strong necessity for its process for his costs or the return thereof unsatisfied,
amendment. Upon the entry of judgment the successto respond, upon the order of court, to a writ issued
ful party has a right to enforce it immediately, unless for the benefit of those eutitled to them for the costs
stayed by an order designed to give the loser an oppor. adjudged in his favor, with interest thereon, it is difficult
tunity to perfect an appeal, and so prevent the immeto see why his right to interest should depend upon his
diate operation of the judgment. But under the terms actual payment of such costs.14 Viner Abridg.457; Rog
of the section referred to a notice of pendency of acers v. Burns, 27 Penn.528; Klock v. Robinson, 22 Wend.
tion cannot be cancelled, although the defendant may 157 ; Denning's Appeal, 34 Conn. 204; McCausland v.
have succeeded in the action, until the time to appeal Bell, 9 8. & R. 388; Hamer v. Kirkwood, 25 Miss. 95;
has expired. The plaintiff may not intend to appeal, Gatewood v. Palmer, 10 Humph. 466; Graham v. New. yet if he does not consent to the removal of the lis penton, 12 Ohio, 210. Emmitt v. Brophy. Opinion by
dens it must remain on record at least thirty days Owen, J.
after judgment, and as much longer as may be neces
sary to make a motion and obtain an order removing
land, even for such a period, must often prove embarcame to a trustee to secure a debt to a third person.
I was forcibly impressed with the incongruity of this After the granting clause to the trustee in fee there
provision recently in a case where & creditor's action was a condition that if the debt was paid at maturity
was successfully resisted on the ground of fraud in the conveyance was to be void, otherwise the trustee
procuring the judgment sued on. Judgment was at was authorized to sell the land at public sale to pay
once entered in favor of defendant setting aside plain. the same. Held, this conveyance was a deed of trust
tiff's judgment, the docket of which was immediately in the nature of a mortgage, and not an absolute con
marked cancelled, an execution was issued for costs, veyance in trust to secure the debt. Where the con
etc. But on applying to the judge who decided the veyance to a trustee is a collateral security, merely for
case for an order cancelling the notice of pendency of the payment of a debt, with the condition that it shall
action he declared himself unable to grant it till the become void upon its payment, and with a power to
time to appeal had expired. sell the land in case of default, it is a deed of trust in
The provision is clearly inconsistent with the scheme the nature of a mortgage. The grantor parts with his
of the Code which allows the immediate euforcement title conditionally only. If there is no such condition
of a judgment upon its entry, and the section should but the conveyance is an absolute deed of trust for the
be amended by striking out the words " and the time purpose of raising money to pay a debt if not paid as
to appeal has expired." It seems unreasonable, while agreed, the grantor parts with all his legal estate, and giving a party the benefit of his judgment in almost whatever rights he has are in their nature equitable
every particular at once upon its entry, to withhold for merely. Hoffman v. Mackall, 5 Ohio St. 130;
such a period his right to remove a cloud from his Woodruff v. Robb, 19 Ohio, 217; Eaton v. Whiting, 3
title. Pick. 485. The fact tha: the deed was made to a trus
The section seems also to be obnoxious to the furtee with power of sale does not change its character in
ther objection that the taking of an appeal in such a this respect, same cases. Moore v. Burnet, 11 Ohio,
case, eveu without security, is sufficient to enable the 334, and Morris v. Way, 16 id. 469, are deeds of trust,
appellant to retain the lis pendens on the record. As without a condition that they were to be void if the
it reads now it certainly does not mean that while the debt was paid; hence they are the conveyances of an
lis pendens cannot be cancelled before the time to apabsolute estate in trust to secure a debt, with a power
peal has expired, it may be cancelled after such time of sale in the trustee to execute the trust, while Wood.
has elapsed and an appeal has been taken. Au apruff v. Robb, supra, and the case at bar have such a
peal without security merely allows the enforcement condition. The former divests the grantor of his legal
of the judgment pending the appeal, and as such enestate, leaving nothing but an equity to the grantor;
forcement does not carry with it a right to cancel the while the latter is a security for the debt, defeasible
lis pendens, it would seem that it must remain until upon its payment. The cases of Moore v. Burnett and
perhaps the Court of Appeals has reviewed the case. Morris v. Way are not in conflict with Woodruff v.
As provisional remedies do not survive to a defeated Robb. Both forms of instruments are mortgages in
party after judgment, and as a lis pendens is (or at equity. In the latter the legal estate remains in the
least has been held to be) very much in the nature of a mortgagor after default, ns against all the world, ex
provisional remedy, it does not seem just or in har. cept the mortgagee, while in the former the legal title
mony with the spirit of the Code to suffer one appealpasses absolutely, leaving an equity merely in the ing without security to hold what is practically an atgrantor. With this distinction between absolute
tachment upon his adversary's land for au indefinite deeds of trust with power of sale, and conditional
period without providing for some compensation for deeds of trust with like power, defeasible upon pay
the damages that may be expected to follow to the rement of debt, the cases are reconcilable. In the for
spondent. mer case there is no legal estate remaining in the
ARM grantor, and therefore no judgment lien, while in the latter the legal estate remains in the grautor in pog. NEW YORK, Feb. 24, 1885,
MANDAMUS TO COMMISSIONERS OF EXCISE.
NEW BOOKS AND NEW EDITIONS.
SMITH'S LEADING CASES.
This is the eighth American edition, published in sioners of excise, who have refused on proper applica- four volumes, by T. & J. W. Johnson, of Philadelphia. tion to grant license, be compelled to do so?
To make room for the new matter, the editors have In Graham & Lane's Excise Laws of the State of
omitted the cases of Ormichund v. Baker and Auriol v. New York, page 76, they say: "The act of 1845, allow
Mills. It is superfluous to speak in detail of this work. ing a local option vote, is generally acquiesced in as
It is an unrivalled classic, affording a complete magaat least substituted by the election of excise commis
zine of information on the subjects of the cases resioners by the people, with power to grant or refuse
ported. It ought to be in every lawyer's library. The licenses, and to approve of applicants and their qualifi
editors have done their work well, and the publishers cations, as well as the discretion to decide whether the
deserve the encouragement which they seem to have applicants have a good moral character or uot. This
SNELL'S PRINCIPLES OF EQUITY.
Cau such substitution be made? It is true that the of great excellence, and the present edition is supplied
HARE'S ILLUSTRATIONS IN ADVOCACY.
This is the first American edition of a well-known PRATTSVILLE, N. Y
• J. B. DALEY.
English publication, and is issued by W.H. Stevenson,
of St. Louis. The book is interesting, but advice on CHEAP JUSTICE.
tbis subject is a good deal like advice on good manners Editor of the Albany Law Journal:
or religion. If the advocate does not exist in the man, I thank you for those excellent words in your last
all the advice in the world will not make the man an issue: "Litigation should be made cheaper rather
advocate. So all these hints about examination of wit. than dearer.” I am strongly in favor of abolishing all
nesses and the like, of which we have so many, are costs except actual disbursements. It is poor people,
more amusing than useful. In short, good advice is not rich people, are oftenest wronged and who most
very useless; as an old lawyer-friend of ours is wont need the power of the State to But them right. If that to say, if a man is wise he doesn't need it; if he is a power-or the exercise of it-be beyond their means, it
fool he will not heed it. But it is well enough to read is denied to them. It becomes the luxury of the rich
Hare, and David Paul Brown, and O'Donovan, and and not the relief of the poor. Among the poor, not
all the others who formulate recipes for making lawone wrong in ten is ever redressed, for want of the yers and advocates. means of redressing it. Our cruel system of what is called "extra allowances,” deters many a
TUCKER'S MONROE DOCTRINE.
man of moderate meaus from seeking redress of his wrongs;
The Monroe Doctrine, a concise story of its origin and and the fact that he is so denied redress invites other
growth. By George.F. Tucker, of the Boston Bar. Boston: and further wrongs, in that it promises impunity to
Geo. B. Reed, 1885. Pp. 138. the wrong-doer. This is foreign to the ends of govern
The title-page tells the whole story as to the scope of ment. It does not tend to encourage patriotism
this work, It is an interesting review of the origin among that class upon whow we depend to repel in
and growth of what is called by courtesy “the Fasiou and fight our battles. If justice be only for the
Monroe doctrine," although it certainly was not origirich, "fie upon your law!” If the State be too poor
nal with Monroe. He simply made the best and most to mete out justice to all let her retrench some of her popular formulation of it. The author gives also a needless, prodigal expenditures, for humanity points summary of the arguments in favor of and against it. in that direction. A bureau in every county, where the
The same subject has been intelligently, although less cause of the poor man should be espoused at the pub
elaborately, treated by Mr. Gilman in his life of Monlio expense, would be less out of harmony with the old
roe in the "American Statesmen" series.
KNEELAND ON ATTACHMENTS.
F. Kneeland. New York: Geo. S. Diossy. Pp. xxvii, beings and civilized nations together. Wherever her 722. temple stands, and so long as it is duly honored, there This work is by a practitioner who has had a large is a foundation for social security, general happiness, experience in the branch of practice of which he and the improvement and progress of our race; and treats. The reader will agree with him in his asserwhoever labors on this edifice with usefulness and dis. tion, in the preface, that such a person, other things tinction, whoever cleans its foundations, strengthens being equal, is better qualified to write a treatise on a its pillars, adorns its entablatures, or contributes to particular topio than a mere theorist; but his work raise its august dome still higher in the skies, connects does not need the apology which he makes for it. A himself in name and fame and character with that man's being busy is no excuse for his putting forth a which is and must be as durable as the frame of hu
poor law book.
But this is not a poor law book.
So far as we can judge from a necessarily cur-
It is cer-
tainly thorough and exhaustive, and shows the charac