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when he forecloses the mortgage he is entitled to bave Rep. 222; Fraser v. Freeman, 43 N. Y. 566; Howo v. the amount so paid included in the judgment against | Newmarch, 12 Allen, 49. In the case of McKinley v. the mortgagor; but if he take judgment for the amount Chicago & N. W. R. Co., 44 Iowa, 314; De ('amp's caso of the original debt only, the lien of the mortgage is and Cook's case, above cited, were distinguished upon exhausted, aud a purchaser at the foreclosure sale takes the ground that in the latter the injury was done to a a clear and absolute title to the premises. (2) That passeuger, while in the former it was done to livesuch purchaser kuew when he purchased the premises stock, respectivg which the duty of the railroad comthat the mortgagee claimed a lien thereon for the pany was entirely different. It is said however in that amount of the taxes separate from the lien of the case, that if we were left to determine the question mortgage will not change the effect of the sale. Dick- upon principle whether an employer should be held inson v. White. Opinion by Reed, J.

liable for the willful or criminal acts of the employee, [Decided Oct. 24, 1884.]

done in the course of his employment, we should have

very little or no liesitation in affirming such liability, MORTGAGE-CONVEYANCE SUBJECT TO--DIVISION OF

and this because the employer has placed the employee TRACT.-T. sold a portion of a tract of real estate to L.,

in a position to do wrong; and it being done in the sa bject to a mortgage, and the rest of the tract to S.,

course of his employment, the intent with which it who sold to B. The mortgage was foreclosed, and B.

was done should not affect the liability of the employer, insisted that L. was bound to pay one-half of the mort

whether the intent be go ill. So long as he acts gage debt. Held, that the assumption of a portion of within the scope of his ployment the employer the indebtedness by L. inured to the benefit of B. to

should be bound. (2) The declarations of a brakeman the extent only of the amount L. had agreed to pay,

in putting a trespasser off of a train that he had auand that B. could not recover more than the agreed

thority to put him off are admissible as part of the res sum. Eduards v. Thostenson. Opinion by Seevers, geslee in an action agaiust the railroad company for J.

damages caused by the forcible ejection. In 1 Greenlf. [Decided Oct. 24, 1884.)

Ev., $ 113, it is said: “Whenever wbat he did is ad

missible in evidence, then it is competent to prove MARRIAGE-DIVORCE-ADULTEROUS MARRIAGE OF

what be said about the act while he was doing it.” It PLAINTIFF.-The rule that it is not competent for one

was competent for the purpose of showing that the of the parties to a marriage to come into court and

brakeman intended to put the plaintiff off the car. It complain of the other's violation of matrimonial du

was not competent for the purpose of showing the auties, if herself likewise guilty, does pot apply to one thority of the brakeman to eject the plaintiff. But who contracts a second marriage under the belief that

the record does not show that this specific objection her husband is dead. The rule in England, and in at

was made to the testimony. (3) Testimony of a witleast several of the States in this country, is that when

ness, who before and after the ejection from the train 8 party knowingly commits adultery such act may complained of, had been for fourteen years a foreman, be pleaded in bar of an action for a divorce. Clapp v.

brakeman, engineer, or conductor of the railroad Clapp, 97 Mass. 531. The rule may be thus briefly

company, that brakeman were subject to the orders of stated: “It is incompetent for one of the parties to a

conductors, and had orders to eject trespassers from marriage to come into court and complain of the

trains, and testimony of witnesses that they had seen other's violation of matrimonial duties, if himself like

brakemen eject trespassers, is competent evidence of wise guilty.” 2 Bish. Mar. & Div., $ 76. It is uncer

the authority of a brakeman to eject a trespasser. tain when the marriage of the plaintiff and Johu W.

Marior v. Chicago, etc., Railroad Co. Opinion by Smith took place; but from the meager evidence on

Rothrock, C. J. that subject before us we reach the conclusion that it

[Decided Oct. 22, 1884.) must have taken place from ten to fifteen years after the plaintiff last heard from the defendant. She might NEGLIGENCE-EMPLOYEE OF RAILROAD-QUESTION have concluded he was dead. There is no evidence FOR JURY.-An employee of a railroad who, after sigtending to show that she supposed he was living. naling the train to stop, goes on to the track to make a There is no evidence tending to show she was guilty coupling without looking or listening to see that the of any criminal intent, and we conclude such a mar- train actually stopped, is not vecessarily'guilty of negriage does not bar her right to a divorce. Knowingly ligence, and whether he is or not should be left to the sbe did not commit adultery. She cannot be regarded jury. The only case in which this precise question bas as a guilty party in this action. Smith v. Smith. Opin- been determined, which has come under our knowlion by Seever, J.

edge, is Beems v. C., R. I. & P. R. Co., 58 Iowa, 150. [Decided Oct. 24, 1884.)

In that case the decedent was attempting to uncouple

certain cars while the train was in motion, and he MASTER AND SERVANT-LIABILITY

gave a signal to check the speed of the train, and withSERVANT-SCOPE OF EMPLOYMENT-EVIDENCE-DEC- out waiting to see whether it was obeyed or not, LARATION OF AGENTRES GESTÆ--PROOF OF AUTHOR- stepped between the cars and was injured. It was ITY.—(1) Where an employee of a railroad company held that he was not “necessarily guilty of contribuhas authority to remove persons from trains who bave tory negligence.” We are unable to distinguish that ho right to be thereon, the company is liable for any case from this, and to a considerable extent, at least, willful wroug he may do in removing a trespasser, and the same may be said in relation to Berry v. Central it is immaterial what motive he had or with what mal- R. Co., 40 Iowa, 564, where a car repairer went under ice the act was done. It is claimed by counsel for ap- a car on a side track for the purpose of repairing the pellant that if the petition and plaintiff's testimony be same, with the knowledge of an employee in charge of true, the assault was felonious, and was an act wholly the track and movements of trains at that place, and without the scope of the brakemau's authority. A it was held that he had a “right to suppose that 110 large number of cases are cited upon the question as cars would be switched upon the track without notice to the liability of a master for the wanton, willful, and to him, or at least that the switching would be done intentional wrong of his servant. Among the author- in a reasonably careful manner." The only material ilies which hold that the master is not liable in such difference between this case and Steel v. Cent. R. Co., cases are De Camp v. Mississippi & M. R. Co., 12 Iowa, 43 Iowa, 109, is that the plaintiff in that case saw that 384; Cooke v. Illinois Cent. Railroad Co., 30 id. the signal to check the train was being obeyed at the

Newsom, 45 Mich. 62; S. C., 7 N. W. time he attempted to pick up the pin, which lay ou the


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202; Cleveland v.




track, and it was said in that case that he was

either through recklessness or for his own couvenience. ranted in believing his signal would be obeyed.

" The

As they were adopted for his benefit, or should be refact that the plaintiff went on the track before the garded as just and proper, we can well see an employee train stopped should not alone prevent his recovery, should not recover damages for an injury received unless he was negligent in so doing. To have 80 solely because he disregarded such precautions. The waited would have caused delay, and we apprehend rule in O'Neill v. K. & D. M. R. Co., 45 Iowa, 546, and railway companies expect their employees to avoid all all other cases cited by counsel, were of a like chardelays possible. The necessities of the business, and acter. It is difficult to say, when judgment and disdue regard to the safety of traius, their own and lives cretion is devolved upon an employee by a rule of the of others, require prompt action on the part of em- company, that he cannot recover damages for an inployees in charge of trains. While this is true, reck- jury received, because as claimed, he failed to properly lessness camot be tolerated. It is not believed that exercise the discretion with which he was invested. It any geveral rule can be laid down. Therefore it is seems to us this is necessarily a question for the jury. and must, ordinarily, be a question for the jury Besides this the plaintiff gave a signal which should whether an employee of a railway company, whose have caused the train to stop. Had this been done duty it is to couple and uncouple cars attached or to the plaintiff could have stepped on the track as he did be attached to a train, is or is uot negligent when he with perfect safety. Bucklew v. Central Iowa R. Co. goes on the track in fron moving train in the per

Opinion by Seevers, J. formance of such duty. plaintiff was rightfully on [Decided Oct. 23, 1884.] the track, and it cannot be said that he was guilty of negligence if he had taken the ordinary and usual precautions for his own protection before he placed himself in that position. In relation to Pennsylvavia Co.

MASSACHUSETTS SUPREME JUDICIAL v. Hankey, 93 ni. 580, we only deem it necessary to say

COURT ABSTRACT. that the question in that case was whether the appellee, in the exercise of proper care, should have made NEGLIGENCE-APPROACHES TO PREMISES an attempt to make a coupling when the train was SEE.-The jury were warranted in finding that the demoving, he knowing it was dangerous to do so because fendant was seised of the premises and in possession of the condition of the track along which he was re- and control of that part of them where the accident quired to walk while attempting to make the coupling. happened. It appeared from the defendant's own Counsel insist that the rule which requires travellers testimony that he was actually the landlord and bad who are about to cross a railroad track to ordinarily collected the the rents since 1877. Dainty v. Brocklelook and listen for an approaching train should be ap- hurst, 3 Exch. 207. He spoke of having got possession, plied to employees who are required to go on the track that is, as we understand it, of the whole premises; in the performance of their duties. But we think such and there was evidence that he assumed to bave conrule should uot be strictly applied to an employee who trol over the well into which the plaintiff's intestate is engaged in making up trains, which must, in a great fell. There was also evidence that the sub-lessees of measure, require his uudivided attention. The travel- the premises had surrendered to the defendant's lesler looks, listens, and crosses the track, and his duty see before the latter surrendered to the defendant. is ended. This is not so with an employee engaged in Amory v. Kannoffsky, 117 Mass: 351, and cases cited. making up trains, for it is undoubtedly true that fre- If there was any technical defect in the surrouder of quently several cars are to be uncoupled and others the sub-lessees, the mere fact that there was a formal coupled to the train. Considerable time is therefore and unasserted right outstanding would not prevent required. If an employee so engaged is absolutely re- the defendant's being chargeable to the same exteut quired to look and listen for approaching trains, or un- as if there had been no flaw in his right of possession. expected movements of the train in in his charge, his We assume that the defendant let the tenement, from usefulness would be greatly impaired. We think the which the plaintiff's intestate was coming at the time question as to the duty of such an employee to look of the accident, when the premises were in their presand listen for the movements of traing before he steps ent condition, and therefore stands in the same posior walks on the track must be left to the jury to de- tion toward the public as if he himself bad put the termine, and therefore it cannot be said that the premises in that condition before the lease. The plaintiff, as a matter of law, wus guilty of negligence. plaintiff's intestate went to the tenement referred to Ominger v. N. Y. C. & H. R. R. Co., 4 Hun, 159; Snow to stop a disturbance of the peace which was taking v. Housatonio R. Co., 8 Allen, 441; Indianapolis, B. & place there, as he had a right to. Gen. Stats., ch. 23, $ W. R. Co. v. Carr, 35 Ind. 510; Crowley v. Burlington,

1; Pub. Stats., ch. 34, & 1. He seems also to have been C. R. & N. R. Co., 20 N. W. Rep. 467. Rule 59 of the invited by the occupant, whose son was making the company is in these words: “Iu all cases of doubt

trouble. He arrested the son, but as the arrest does take the safe side and run no risk.” The plaintiff had not appear to have affected his course in leaving the knowledge of this rule, and it is insisted that he disre- place, his right to recover would not be affected if the garded it, and therefore he is not entitled to recover. arrest was unlawful. He came on the premises lawThe rule implies that an employee must exercisa judg. fully, and could lawfully leave them. Under the inment and discretion in determining whether danger structions of the court, the jury must have found that existed if he did a thing in a certain way or at a cer- the intestate was using the passageway by the defendtain time. In this respect it is different from other ant's invitation. That is to say, that the intestate had rules to which our attention has been called by coun

a rigbt to understand from the appearance of the sel. In I. C. R. Co. v. Houck, 72 III. 285, the rule was

premises that the intended mode of approach to the that only 110 pounds of steam should be carried. In tenement in question was over the open space where Shanny V. Androscoggin Mills, 66 Me. 420, the rule the well was; and the evidence warranted the finding required that the machinery should be stopped at a to that extent. If the appearance of the premises is certain hour for the purpose of being cleaned. In Wol

such as to point out a certain open space as the mode sey v. Railroad Co., 33 Obio St. 227, coupling by hand of approach, while it may not be the defendant's duty was strictly prohibited, and the employee was required to take care of the whole open space as an approach, to use a short stick. Under these rules no discretion his duty to keep safe the approach offered, whatever was left to the employee. He failed to obey them, it is, is as great as it were a wrought avenue. And

although the jury should regard less than the whole towns were first added to the list of preferred credispace as the approach proper, yet they would be at tors, the reason was expressed to be “ so that county, liberty to find, from the absence of any marks defining city, or town taxes shall be entitled to the same priorand separating the approach proper from the rest of ity or preference as State taxes are now entitled to in the space, that an exceptional danger outside the for- cases of insolvent debtors;” and that although these mer aud in the latter made the approach unreason- words are omitted in the Public Statutes, we may ably dangerous. See Barnes v. Chicopee, ante; White properly recur to them for the purpose of construing v. France, 2 C. P. D. 308; 21 Eng. Rep. 305. To put it the statute as it now stands. The provisions of the in another way, the jury had a right to find that the Publio Statutes were certainly intended as a re-enactplaintiff was properly where he was. Gilbert v. Nagle, ment, without change in the law as it previously ex118 Mass. 278. The defendant argues that the plaintiff isted. Drew v. Streeter, 137 Mass. It was the intenwas not using due care, because coming to an obstacle tion of the commissioners, as stated by them, to exfifteen inches high in the dark,aud stepping upon it, he press in the text of the revision the existing laws ac-theu stepped forward and fell into the well. The jury, cording to their understanding of them in such a manwho regarded the well as making the passage danger- ner that no existing rights should be changed. When ous, may have considered that the plaintiff had a right there is substantial doubt as to the meaning of the to assume that no such danger would be allowed to language used in the Public Statutes, the statutes, as beset the way. We cannot say, as matter of law, that they previously existed, afford therefore a most valuthey were wrong. Severy v. Nickerson, 120 Mass. 306; able guide in their construction. But when language Fox v. Sackett, 10 Allen, 535; Lawless v. Connecticut is clear, we cannot look to the earlier statutes to see if River Railroad, 136 Mass. 1. Leavoyd v, Godfrey. an error has been made by the Legislature in its unOpinion by Holmes, J. (See 19 Alb. L. J. 267.-En.) derstanding of them, as there is no room for the office [Decided Jan., 1885.)

of construction. Lewis v. United States, 92 U. S. 621.

Even if the meaving it has affixed to the earlier statTRUST AND TRUSTEE-FUNDS MAY BE FOLLOWED

utes is different from that we should attribute to MIHAPPROPRIATION.-Those who receive trust prop- / them, that which it has adopted, if clearly expressed erty from a trustee in breach of his trust become by the Public Statutes, is controlling. If the language themselves trustees thereof, if they have notice of the

of the statute, as it now exists, were susceptible of trust. So when a trust fund is employed to purchase,

two constructions, an argument drawn from the statin whole or in part, a particular piece of property, so

ute as it was formerly expressed (should we adopt the long as the trust fund can be identified it may be fol meaning given to it by the plaintiff) would be conclulowed into the hands of any one purchasing with no

sive. United States v. Bowen, 100 U. S. 508. But it is tice

, as he has made himself an accomplice in the orig. impossible for us to say that the explicit language used inal wrongful act. The property which has been sub- in thu revision was not so used for the very purpose of stituted for the fund is itself impressed with the trust removing any doubt which might have been caused by originally imposed upon the fund. But it is necessary

the expression in the statute of 1862 relied on by the that such property should be pointed out and identi- plaintiff. Bent v. Hubbardston. Opinion by Devfied. When the property of an unfaithful trustee is augmented by the incorporation into his own property [Decided Dec., 1884.] of trust funds, and with his property thus augmented

CEMETERIES-EASEMENT OR FEE — ALTERATION BY he makes purchases or conveyances, those dealing

CITY-RIGHTS OF OWNER.-It has been said that rights with him, even if they know him to be an unfaithful

of burial in public burial grounds are peculiar and are trustee, cannot be held to be trustees of property

very dissimilar to rights in pews; that they are so far which cannot be connected with the trust fund. If public that private interests in them are subject to the one knows that a purchase is made from him with the control of the publio authorities having charge of po. specific funds of an estate wrongly misappropriated, lice regulations. Sohier v. Trinity Church, 109 Mass. he may be compelled to repay that which he thus re

1, 21. See Pub. Stats., ch. 82, $ 15. It has been beld, ceived. Trull v. Trull, 13 Allen, 407. But if he re

in the case of a sale by plan, that the fee of the ways ceives it, not as a distinct fund, and with no knowl

remained in the owner of the cemetery who retained edge that would identify it as forming a part of the general charge of the grounds. Seymour v. Page, 33 trust fund, his general knowledge that the party pay. | Conn. 61. Finally, apart from any peculiar principles ing wrongfully used trust funds would not render him applicable to cemeteries, it is to be borne in mind as a thus responsible as trustee. Howard v. Fay. Opinion general proposition that a reference to a plan does not by Devens, J.

necessarily add to or enlarge the easements conveyed [Decided Dec., 1884.]

by the deed. Williams v. Boston Water Power Co.,

134 Mass. 406, 416. Taking all these consideratious into INSOLVENCY

CONSTRUCTION account, we should hesitate to decide thut the plaintOF STATUTE. - It is provided by the Pub. Stats.,ch. 157, i ff could have any standing in equity to complain of $ 104, that in the order for a dividend on an insolvent alterations made in good faith for the general improve. estate, "the following olaims shall be entitled to pri- ment of the cemetery,aud not impairing the value of his ority, and to be paid in full in their order: First, all lot, or his means of access to it. If he has any such debts due to the United States and all debts due to right, it is inter apices juris, and when the master and taxes assessed by this State, or any county, city finds that the pecuniary loss to him is nothing, and or town therein." We concur in the plaintiff's view that the injury or damage, if any, is “wholly one of that the taxes collected by the insolvent as town col- sentiment and temper of so slight a character as to be lector ceased to be taxes eo nomine, and constituted a counted among the trifles which the law does not redebt due by him to the town.

The words “debts due gard,” and when it further appears that the plaintiff to" and "taxes assessed" being connected conjunc has lain by and taken no other action than to protest, tively in the statute, it would not seem possible to while “the city has expended in the work in question coustrue it in any other way than as providing that a large sum of money manifestly to the general imthey are alike preferred debts. They cannot be limi

provement and benefit of the cemetery, and the cost of ted to debts due for taxes assessed from those to removing or opening the wall and terrace across the whom they are assessed. The plaintiff urges that when avenue would largely exceed the amount or value of by the Stat. of 1862, ch. 183, $ 11, counties, cities, and the plaintiff's individual interest in the premises,”

ens, J.

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we are clearly of opinion that the plaintiff has no claim Partridge v. Messer, 14 Gray, 180. But the plaintiff to equitable relief. Wood v. Sutcliffe, 2 Sim. (N. S.) was bound by it, and cannot set up his own illegality 166; 21 L. J. (N. S.) Ch. 253. Gaunt v. Fynney, L. R., to relieve himself from its consequences. His debt 8 Ch. 8. Perkins v. City of Lawrence. Opinion by has been discharged aud extinguished, and the law Holmes, J.

leaves the parties in the position in which they have [Decided Jan., 1885.1

placed themselves, and will not furnish a remedy to

either to undo what has been done. Mallalieu v. Hodge MUNICIPAL CORPORATION- ICY

son, 16 Q. B. 689. Huckins v. Hunt. Opinion by DENCE AS TO PRIOR CONDITION,- In an action for

Morton, C. J. personal injuries occasioned by falling upon a defec

[Decided Jan., 1885.] tive sidewalk the court may, in its discretion, reject evidence of the condition of the sidewalk as to ice a week before the accident happened, so far as offered to prove the condition at the time of the accident,

PENNSYLVANIA SUPREME COURT eren it under special circumstances, it would have

ABSTRACT. been warranting in admitting it. Berrenberg v. Bos. ton, 137 Mass. 231. The witness did not undertake to TOWN-ONE OF FOUR OFFICERS CANNOT BIND TOWNspeak to the continuance of the same defect down to ALL MUST ACT.-- A towuship having four supervisors the moment of the accident from daily observation, was for the convenience of such supervisors divided into and although the plaintiff's counsel stated that he ex- four districts, over each of which one supervisor had pected to prove by this and other witnesses that the charge. The supervisor in one of said districts engaged defect had existed in substantially the same way for and contracted with a party to plow the road, and in eight or ten days, yet in view of the plaintiff's own answer to the party's objection, that his plow was too testimony, that the day before the accident snow fell light, said: “I'll insure you it won't hurt it.” The to the depth of four or five inches, followed by rain and plow being broken while employed in the work, and then by a thaw, we must take it that the inteuded suit being brought against the township to recover proof was by way of infereuce from other testimony damages, held, that the alleged contract was not a like that offered, which the court very properly con- ministerial act which could be entered into by one susidered too remote. The plaintiff argues that the evi- | pervisor, so as to bind the township, but that in order deuce was admissible to prove notice. What we have to create such liability it should have been entered said applies to this argument also, for the notice to be into by all the supervisors. Held therefore that the proved must be notice of the same defect. Further- towuship was not liable. One supervisor cannot levy more the defeuse was not put op want of notice of the a tax to pay the debts contracted, nor the expenses incondition of the sidewalk, such as it was, but on a de- curred in the township. Cooper v. Lampeter Town. nial that the condition was defective. Woodstock v. ship, 8 Watts, 125. As a general rule, it may be declared City of Worcester. Opinion by Holmes, J.

one cannot bind the township by a contract, the propri[Decided Jan., 1885. ]

ety of which requires deliberation and the exercise of

judgment. Union Township v. Gibboney, 13 Norr. 534. NEGOTIABLE INSTRUMENT - ILLEGAL CONSIDERA

He may bind it in matters purely ministerial. It is in TION-PARI DELICTO-COMPOSITION.--The first count

the line of ministerial duty to open and repair a road. was upon a promissory note for $217.50, made by the

He can therefore employ laborers for that purpose. It plaintiff to the defendant; the second was for a like

was held in Dull v. Ridgway, 9 Barr, 272, tbat one might amount, upon an account annexed for goods sold and

give a valid due bill, which showed on its face that it delivered by the plaintiff to the defendant before the

was for work done thereon. The right of the laborer making of the note. The plaintiff does not contend

rested rather ou the consideration mentioned therein that he is entitled to recover upon the note on which

tban on the due bill itself. The township was not his first count is founded. The note was given in con

tbereby deprived of any valid defense. The law has sideration, and upon the secret agreement, that the

wisely intrusted to the supervisors as a body the trans. plaintiff should execute a deed of composition en

action of all the public business imposed on them, which tered into between the defendant and his creditors,

calls for the exercise of judgment and careful deliberawhich purported to treat all the creditors equally. The

tion. The conclusion at which we have arrived does decisions are numerous and uniform that such a note

not conflict with Commonwealth v. Supervisors of is void. Harvey v. Hunt, 119 Mass. 279, and cases

Colley Township, 5 Casey, 121, in which it was held cited. But he contends that he is entitled to recover that the supervisors might enter into a valid arrangethe balance of his account for which the note was

ment that each should take charge of a certain portiou given, in the same manner as if he had not executed

of the township, and direct the working out of road the composition deed. In other words, his claim is

taxes therein. Nor is the present case like Hopewell that the law will regard the rights of the parties as if

Township v. Putt, 2 Week. Notes, 46, in which a perthe composition deed and the corrupt agreement by son was permitted to recover for money advanced to which it was accompauied had never been made. We

pay for work actually done in constructing the road. do not understand this to be the law. If two persons

The attempt now is not to recover for work done, not make an illegal contract, being in pari delicto, so long

for money advanced to pay for work done, but to pay as it remains executory, the law will not aid either

damag's not contemplated by the board of supervisors party to enforce it; but so far as it is executed, the

and not implied under any authority given by them. law will not lend its aid to either party to relieve him

The alleged contract was therefore in excess of the from the consequences of the illegal contract, or to re

power of one supervisor, and the township is not scind it. Myers v. Meinrath, 101 Mass. 306; Horton v.

bound thereby. It cannot be said that such a contract Buffinton, 105 id. 399; Cranson v. Goss, 107 id. 439. In

is a ministerial act. Somerset v. Parson. Opinion by the case at bar the plaintiff executed the composition | Mercur, J. (See 20 Eng. Rep. 522.] deed and received the amount provided for therein in

(Decided Oct. 6, 1884.] full satisfaction and payment of his account. This operated as an extinguishment of his debt. The agree- SUBROGATION-JUDGMENT-NOTE-LIEN.-Where one ment with the defendaut that he would pay the full of two debtors on a joint judgment-note,which has been amount of the debt in the future was illegal, and duly entered up, pays, under execution, the amount avoided the compositiou deed as to other creditors. thereof, taking an assignment of record of the judg.



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ment to his use, he is entitled to be subrogated to the EXECUTOR AND ADMINISTRATOR-PURCHASE OF INcreditor's rights against the estate of his deceased co

OF DECEASED IN PARTNERSHIP-VOIDABLE obligor, to the extent that he has paid his co-obligor's RATIFICATION ESTOPPEL proportion of the debt. In MoCormick v. Irwin, 11 VANCEMENT-INTEREST ON.-(1) The purchase of the Casey, lil, it was said by Mr. Justice Strong: "The undivided interest of a deceased partner by the execudoctrine (subrogation) does not depend upon privity, tor of his estate, in his own behalf, is viewed with nor is it confined to cases of strict suretyship," and in more suspicion; in such case the estate stands altoCottrell's Appeal, 11 Harr. 294, by Justice Woodward : gether uuprotected; it is exposed to the greed or the "Subrogation is founded on principles of equity and executor, with none to guard against it. The execubenevolence, and may be decreed when no contract or tor appears both as seller and buyer, and an indefeasiprivity of any kind exists between the parties. When- ble title cannot thus be acquired. Chronister v. ever one not a mere volunteer discharges the debt of Bushey, 7 W. & S. 153; Campbell v. McLain, 51 Penn. another he is entitled to all the remedies which the St. 200. The rule extends to all having a fiduciary recreditor possessed against the debtor.” And in Mosier's lation to the property, and the fairness and honesty of Appeal, 6 P. F.S.76, where a junior judgment creditor, the transaction do not vary it. This principle is not believing the land would be sacrificed, after the exe- founded on the assumption of actual fraud; it is a rule cution plaintiffs had refused to assign their judgments of public policy. Drysdale's Appeal, 2 Harr. 536; to him on payment, paid the executions to the sheriff, Chorpenning's Appeal, 32 Penn. St. 315. Where the aud satisfaction was entered; no other liens having transaction is accompanied by actual fraud it is absointervened, he was subrogated to the rights of the lute void, and is incapable of subsequent ratification; execution plaintiffs, and the satisfaction cancelled. but a purchase by a trustee at his own sale, bona fide While the ruling of these cases is perhaps broad enough and for a full price, is but a legal fraud; it is voidable to control the present one, we are not obliged to say so, only, and may be confirmed by the parties in interest as we have direct authority upon the point. In Gear- upon full knowledge of all the circumstances after a hart v. Jordan, 1 Jones, 325, it was held that “the rule deliberate examination. What may be subsequently embraces purchases in common of an estate bound by ratified may of course be previously authorized, and a joint lien, as between themselves, the purpart of an act done by such previous authority needs no subeach is liable to coutribute only its proportion of the sequent ratification. (2) It is certainly true, as shown common burden, aud beyond this is to be regarded in a long line of cases, that a contract, void under the simply the surety of the remaining purparts. In this disability of coverture, cannot be made good by estoprespect they are to be treated as the several estates of pel; neither a fraudulent denial of coverture, payment joint debtors, oue being surety of the other; and if of purchase-money nor silent acquiescenco in the makthe purpart of one is called upon to pay more than its ing of improvements, nor all of these together, can by due proportion, the teuaut or his lien creditors, upon way of estoppel give validity to a contract void upon the principle settled in Fleming v. Beaver, 2 Rawle, this ground. Glidden v. Strupler, 2 P. F. S. 400; Bisp128; Croft v. Moore, 9 Watts, 451; and Neff v. Miller, 8 ham Eq. 293. The above principle applied in the presBarr, 347, is entitled to stand in the place of the satis- ent case where certain married women executed,withfied creditor to the extent of the excess which ought out the joinder of their husbands, an instrument to have been paid out of the other shares.” Gearhart which virtually ratified a purchase by their father's 5. Jordan was recognized in the late case of Watson's executor of decedent's interest in a partnership. In Appeal, 9 Norr. 426, where is was said by Mercur, J.: such case the married women were held estopped from "As between two mortgagors of land held by them as subsequently objecting to said purchase. (3) A testatenants in common and third persons, each mortgagor tor by his will directed that the amounts due him by is liable for the whole sum secured by the mortgage; his sons-in-law should be taken as advancements by but as between themselves each is liable for one-half him to their several wives. Held, that no interest only. As to the other half, each is surety for the could be charged on the indebtedness of the sons-inother." Ackerman's Appeal. Opinion by Pax- law to the testator. (4) Where a testator, after proson, J.

viding for certain annuities, leaves the residue of his [Decided April 14, 1884.)

estate to his widow during her life, she is entitled to

interest which has accrued upon a debt due the estate EQUITY-JOINT PURCHASE OF PROPERTY-REFUSAL between the date of testator's death and the date of OF SOME OF PURCHASERS TO PAY THEIR SHARE OF EX- the collection of the debt. Grim's Appeal. Opinion PENSES-EFFECT OF.-Several parties, who were owuers by Clark, J. of bonds of a railroad company about to be sold under [Decided Oct. 6, 1884.) the mortgage, entered into an agreement to purchase the property and uot to claim their share of the pro- CORPORATION-STOCKHOLDER-LIABILITY OF, HOW ceeds of the sale, but to take in lieu thereof bonds, to ENFORCED.-A stockholder of a manufacturing corpo. be issued under a company to be subsequently orgau- ration, against whom judgment is recovered for the ized. Nothing was said in the agreement as to wbieh debts of the corporation, which judgment he pays, is of the parties should purchase the property but one of not entitled to contribution against the other stock. them, a corporation, undertook to do so, but the prop- holders except in the particular manner specified in erty was bid above their limit. Subsequently the pur- the acts. Corporation stockholders who have already chaser at the sale transferred the title to said corpora- | contributed their proportions to the capital stock are tion for advances made by them and for prior indebt- not at the common law or in equity liable for the cor. eduess to them. Said corporation began to reorgan- porate debts; statutes which impose this liability ize a company, and requested the other parties to join must therefore be strictly construed. This rule of law in the expenses, which was refused. Had, that even is well settled. Mean's Appeal, 4 Norr. 78. The right should this purchase by the corporation inure to the of contribution among stockholders also exists by rea. benetit of the other bondholders, the latter were de- son only of the obligation imposed by the statute. If barred by their refusal to share in the expenses from it were not for the statute there would exist no perclaiming any interest in the purchase. Yeager's Ap- sonal responsibility on the part of the holder of the peal, 4 Out. 88. Lennig's Appeal. Opinion by Pax- stock, either to the corporate creditors or to ench other Bon, J.

for the corporate debts. The right of the plaintiffs to [Decided April 14, 1884.]

recover in this case therefore depends upon the con

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