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defendant can aid the defendant in withholding from On the 26th of May, 1874, she was the owner of a cer. plaintiffs the money solunjustly obtained by the de- tain piece of land situated in Alameda county of this fendant.

State, which was her separate property, it having been There was error in the courts below, and this court given to her by her father on the occasion of her mar. enters judgment for the plaintiffs for the amount riage. On the day last named she signed a power of found by the court below, together with interest op attorney, very general in its terms, appointing her the same from the first day of that term of court, and father her attorney in fact to (among other things) 00Bts of buit.

"lease, let, demise, bargain, sell, remise, release, conJohnson, C. J., concurs in holding that under the vey, mortgage and hypothecate" her said land upon facts disclosed the excessive charges may be recovered such terms and conditions, and under such covenants back, but he dissents from the constructiov placed on as to him should seem fit. The power as well as the section 12 of the act of 1848, which limits the rate of certificate of acknowledgment described the constitu. freight to five cents per ton per mile for a distance of ent as “ Fannie P. Lawrence, formerly Fannie L. thirty miles or more, and reasonable rates for less dis- Hutchinson," and the power was so signed. The certances. He does not think that section applies to tificate bowever did not conform to the requirements packages and paroels weighing less than a ton, and of our statute prescribing the form for certificates of which by the usual custom are not shipped by weight. acknowledgment of married women.

McIlvaine, J., dissenting: I differ from my brethren When the power of attorney, so signed and acknowl. on the weight of testimony in this case. I think the edged, was received by Edwin A. Lawrence, the latter payments of illegal rates were voluntary. The pay- was tbe owner of various certificates of purchase isments were not made at the time the goods were car- sued by the State of California for State lauds, on ried, but at the end of the month for past freights, and which Gustavo Reis beld a mortgage executed to bim I have been unable to find any testimony satisfactorily by Lawrence. A part of the purchase-money of the showing that payments were exacted as a condition of lands had been paid, but a part of it remained unpaid. future freightage, or paid on any reasonable belief In due course of time an installment became due. that future freight would be refused unless payments Lawrence needed the money with which to make the were made.

payment. He negotiated with Mr. E. B. Mastick for Julement reversed, and judgment for plaintiffs. the loan of the required amount on a mortgage be

proposed to give on his daughter's land under and by

virtue of the power of attorney. The power, the MARRIAGE - ACKNOWLEDGMENT VOID DI- daughter testified on the trial of this case, she signed VORCE.

unwillingly and only after urgent solicitation on the

part of her father; aud in answer to the question SUPREME COURT OF CALIFORNIA.

“why did your father urge you to execute the power

of attorney to which you have referred ?" she an. REIS V. LAWRENCE.*

swered: “Because he said he had payments to make A woman living under her maiden name, apart from her on certain lauds of bis, and that in case of necessity

husband, under a void decree of divorce, and acting and he wished to raise enough money on my property to representing herself as a single woman, binds herself by meet that demand; but that he hardly thought ho her acknowledgment of a deed as a single woman.

would be obliged to do so; but he wished to have the

paper on hand, so in case of peed he could make use The opinion states the facts. The defendant had

of it.” Iu endeavoring to obtain money on the judgment below.

strength of his daughter's land, Edwin A. Lawrence

was therefore but carrying out the purpose had in Edward J. Pringle, for appellant.

view by both when the daughter gave him the William Irvine, for respondent.

power. Ross, J. The defendant Edwin A Lawrence is the

His negotiations with Mr. Mastick for a loan of the father of the defendant Faunie P. Lawrence. The

required money failed of accomplishment on the last latter married one Hiram Hutchiuson, in the city of

day allowed for the payment of the installment duo San Francisco, on the 13th of April, 1871. In the year

upon the certificates of purchase. In this extremity of 1873 she went to the Territory of Utah for the pur

he applied to Gustave Reis for the loan of the amount pose of obtaining a divorce from her husband, and on

necessary to make the payment, viz., $4,550. Gustave the 6th of May of that year filed in the Probate Court

furnished a part of the money, but got the greater of Salt Lake county, Utah Territory, a petition in part of it from Ferdinand Reis, who is the plaintiff in which she set forth that Hutchinson deserted and

this action. The loan was accordingly made, and as abandoned her on or about the first day of March, 1872, security for its payment Edwin A. Lawrence executed and bad ever since continued his desertion and aban

to the plaintiff, Reis, a deed for the Alameda land as donment of her, and praying for a decree of divorce attorney in fact for Fannie P. Lawrence. At the dissolving the bonds of matrimony existing between time of this transaction, which took place on the 27th them. On the 15th of July, 1873, the court in which

of June, 1874, Edwiu A. Lawrence represented to Reis the proceeding was had entered a decree purporting to

that his daughter had obtained a divorce from her dissolve the bonds of matrimony existing between Mr.

husband in Salt Lake, and had been restored to her and Mrs. Hutchinson, and restoring to the petitioner maiden name. Subsequently, to wit, on the 18th of her maiden name.

September, 1874, upon application made on behalf of From the view we take of the case before us it will

the plaintiff Fannie P. Lawrence executed to plaintnot be necessary to determine whether or not the de

iff a deed for the same land described in the deed cree of the Probate Court of Utah was validated by already executed to him by her father as her attorney subsequent congressional action. Upon the entry of

in fact, which deed expressed a consideration of the decree on the 15th of July, 1873, Mrs. Hutchinson $4,500, and contained the clause: “This deed is given resumed her maiden name, and never afterward lived

in confirmation of the deed given by me to said Reis with Hutchinson, but has ever since that date lived

on June 27, 1874, by my attorney in fact, hereby ratiand acted as a single woman, and borne her maiden fying and confirming the same." The certificate of

acknowledgment to this confirmatory deed described


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the grautor as “Fannie P. Lawrence (femme sole)," * 63 Cal. 129; S. C., 36 Am. Rep. 762, 764.

and complied with the requirements of the statute pre


curred; McKee and Thornton, JJ., dissent. (See 36 Am. Rep. 762, 764.]

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scribing the form of such certificates for others than married women, butdid pot conform to those in respect to the latter.

The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin county of this State against the dofendant Fannie, for the purpose of obtaining a decreo dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff in that action, and from that time forth lived apart from him, and denied him all marital rights. After trial the court in which the actiou was brought decreed the plaintiff a divorce on the ground stated in his complaint.

We assume that the Utah decree was invalid. Never. theless the fact remains that upon the rendition of that decree the defendant Fannie P. Lawrence resumed her maiden name, and thence hitherto continued to act and represent herself as a femme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land, and on those representations, the father did borrow money, and to secure its repayment executed to the lender, pursuant to the power, a deed for the premises. Subsequently and in consideration of that loan, the daughter still acting and representing herself as a femme sole, executed as such to the lender another deed for the premises, in which she recited that it was given in confirmation of the deed previously executed by her attorney in fact. At this day she seeks to avoid the effect of these conveyances to the injury of the party who parted with his money on the strength of her actions and representatious by saying that she was all along a married women, and that the certificate of acknowledgment to the instruments executed by her were not in accordance wth the form prescribed by statute for married women in that they did not recite that she, was examined "without the hearing of her husband," a hus. band who, according to her petition for divorce filed in Utah, had deserted and abandoned her on the 1st day of March, 1872, and whom, according to the record put in evidence from the District Court of Marin county, she had deserted and abandoned in July of the same year, and between whom no marital relations other than the dry, legal relation in fact existed. Of course, under such circumstances the reason for the rule that requires, in cases of married women, the certificate of acknowledgment to recite an examination without the hearing of the busband, dues pot exist. At least as early as July, 1872, the defendant, Apnie, lived apart from, and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and represented herself as a single woman. In that character she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. As giving support to these views,see Richeson v. Simmons, 47 Mo.20; Rosenthal v Mayhugh, 33 Ohio St. 155; Patterson v. Lawrence, 90 111. 174.

We find it unnecessary to determine whether the rules based on the oummon-law relation of husband and wife are to be applied to their full extent in this State where the wife is now by statuto empowered to dispose of her separate estate without the consent or concurrence of her husband.

It follows that the plaintiff is entitled to the lien prayed for. Judgment and order reversed, and cause remanded for a new trial. Morrison, C. J., Sharpstein and Myrick, JJ.,

HIGHWAY-DEFECT-PROXIMITY TO HIGHWAY.--In order that the plaintiff should recover it was necesBary that he should show that the defect in the highway " which caused the injury existed either in the highway or so immediately contiguons to it as to make it dangerous to travel on the higbway itself." Sparhawk v. Salem, 1 Allen, 30. Alger v. Lowell, 3 Allen, 402; Adams v. Natick, 13 id. 429; Puffer v. Orange, 122 Mass. 389, cited and quoted from. In determining whether a defect is in such close proximity as to render travelling upon it unsafe, that proximity must be considered with reference to the highway "as travelled and used for the public travel,'' rather than as located. Warner v. Holyoke, 112 Mass. 362. While it may be impossible to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it, and while it must often be a practical question, having regard to many circumstances, to be decided by a jury, yet it has been held in certain cases as matter of law that a jury was not authorized in finding that the dangerous place was in such proximity to the highway as to render travelling thereon unsafe. Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, ubi supra; Daily v. Worcester, 131 Mass. 452, cited. In all these cases the place where the accident happened was reached by passing over a level space which intervened between it and the highway, yet tbese defective places were held not dangerously contiguous. The case at bar is witbin the rule thus adopted. The causes of the injury to plaintiff were the darkness, his failure to keep the carriage path, his travelling on that made by foot passengers at the extreme edge of tbe highway as located, and the subsequent misconduct of the horse. It cannot be said that a bank thirty-four feet from the travelled way as used rendered it unsafe to travel thereon. This distance was sufficient to provide for those contingencies which from time to time might render necessary a road somewhat wider than that actually travelled. Barnes v. Inhabitants of Chicopee. Opinion by Dev

ens, J.

NEGOTIABLE INSTRUMENT ILLEGAL CONSIDERATION--SUPPRESSING CRIMINAL PROSECUTION.-Wheu a person is under arrest on a criminal charge, to obtain from him and his friends a promissory pote in paymeut of an alleged claim under a threat of prosecuting the complaint if the note is not given, and under an agreement not to prosecute it if the note is given, is in violation of law equally whether the accused is guilty or not guilty; and the guilt or innocence of the accused capuot be tried in this action. Such a proceeding is an abuse of criminal process, and such an agreement tends to the suppression of evidence, and impedes the due course of public justice. Partridge v. Hood, 120 Mass. 403; Clark v. Pomeroy, 12 Allen, 557; Bigelow v. Woodward, 15 Gray, 560. Gorham v. Keyes. Opinion by Field, J. (Decided Oct., 1884.)


SPECIFIC PERFORMANCE--RESCISSION.-A. purchased of B. a certain lot, paying thereon $50 in cash, and agreeing in the deed as part of tbe consideration to erect a building of a certain description thereon. Held, tbat B. was entitled to the performance of the




contract, and in case of the failure of A, after a rea- eral copy of the law of New York, wbich has also been sonable time, upon tendering back the money re- adopted by the States of Ohio, Wisconsin, Minnesota, ceived, to a rescission. The right to relief originated North Carolirra, South Carolina, Florida, Oregon and in the fraud, which but for the interposition of the perhaps others. This question has been passed upon court, would be perpetrated upon the complaining by the Supreme Court of Ohio, and the rule is settled party. Will. Eq. Jur. 302; Story Eq. Jur., $ 692 et seq. in that State that the Code, as well as the common Thus in Reid v. Burns, 13 Ohio St. 49, where the law, requires all jointly liable to be made defendants. plaintiff had caused the title to his homestead to be Bates Code Pl., § 1, p. 47; Hempy v. Ransom, 33 Ohio conveyed to his son in consideration that he would St. 315; Bazell v. Belcher, 31 id. 572. The same rule support him during life, which the son afterward re- seems to be recognized in this State. See Leech v. fused to do, it was held that the father was entitled to Milburn Wagon Co., 14 Neb. 109; Fox v. Abbott, 12 a rescission of the contract and a reconveyance of the id. 328; Maxw. Just. Pr. 28. Bowen v. Crow. Opinpremises. And in Stines v. Dorman, 25 Ohio St. 580, ion by Reese, J. it was held that a stipulation in a deed of conveyauce [Decided Oct. 8, 1884.] wbereby the grantee, in part consideration for the

EMINENT DOMAIN-DAMAGES conveyance, agreed that the premises should not be used or occupied as a hotel, bound both the grantee

TION.- Where a public road has been duly laid out, a and all claiming under him. It would be a reproach

claim for damages made by a land owner and allowed, upon the law could a party secure the title to real es

and no appeal taken, a court of equity will not enjoin tate in consideration, in whole or in part, that he

the opening of the road upon the ground that the damwould erect certain buildings thereon, and upon re

ages allowed such land-owners were inadequate. Upon ceiving a conveyance refuse to perform his agree

a petition duly signed as required by law for the locament. The law favors good faith and fair dealing.

tion or vacation of a public road, the county commisThese require the defendant to erect the building in

sioners are duly invested by the statute with authority question according to his agreement, or in case of his

in the premises. The extent to which error will failure to do so within a reasonable time, submit to a

lie to the District Court to correct their proceedings is cancellation of his deed. In a contract of this kind a

not now before the court, and need not be considered; court will look at the entire transaction, and grant or

but in the absence of some equitable grounds for rewith hold relief as the circuinstances of the case may

Jief, such as fraud, corruption or undue means, error seem to require; but it will uphold fair dealing wher

cannot be corrected by injunction. McClelland v. ever it is possible to do so, and to tbat end will en

Miller, 28 Ohio St. 488; Frevert v. Finfrock, 31 id. 627. force specific performance of an agreement clearly

In the case last cited it is said: “For a stronger reaproved, whenever an action for damages will not af

son where the regularity of the proceedings is the ford adequate remedy. Willard v. Ford. Opinion by ground of objection, the claimant will not be permitMaxwell, J.

ted to resort to the remedy of injunction, but will be {Decided Oct. 8, 1884.)

confined to his appeal, or if the proceedings are so er

roneous as to be reversible, to his petition in error." PARTIES--PARTNERS-ACTION MUST BE AGAINST ALL. High Inj., $S 30, 1:29, 131. The reason is the aggrieved -The obligation of a partnership to pay a sum of

party has a full and adequate remedy at law, aud bas mouey is the joint obligation of all the members of a

no occasion to resort to a court of equity for redress. firm, and an action against the members of such firm

Coe v.Columbus, etc.,R.Co.,10 Ohio St. 372; Coughron to recover a debt or obligation owing by it must be v. Swift, 18 Ill. 414; Winkler v. Winkler, 40 id. 179; brought against all the members of the partnership.

Poage v. Bell, Rand. 586; Webster v. Couch, 6 id. In Bliss Code Pl., $ 91, 1., it is said: “At common law,

519; Akrill y, Selden, 1 Barb. 316; Wooden v. Wooden, where there is a joint obligation or undertaking, in an

2 Green Ch. 429. Where a full and adequate remedy action upon it all who thus join must be made de

is provided by statute a court of equity will not asfeudants; and in determining whether it is joint the

sume jurisdiction and enjoin proceedings under such rule is that several persons contracting together with

remedy. Brown's Appeal. 66 Pem. St. 155; Wooden the same party for one and the same act shall be re

v. Wooden, 2 Green Ch. 4:29. The principal ground of garded as jointly, and not individually or separately

complaint in the petition is that the damages awarded liable, in the absence of any express words to show

for the location of the road were inadequate. But the that a distinct as well as an entire liability was in

statute gave the plaintiff the right to appeal to the Distended to fasten on the promisors." Thus contracts

trict Court. This, so far as appears, he failed to do. made by partners with third persons are joint, and all

It would seem therefore that he was satisfied with the must be joined in an action; and so with promissory

amount of the award. In any event the statute gave notes and other instruments or agreements, made by

him a plain, adequate remedy, which if he neglected, more than one, wben the agreement is general; as we

he camot now invoke the aid of a court of equity to hereby agree or hereby promise or bind and obligate

cure his own laches. Neither the pleading por proof ourselves, etc. Implied obligations are joint when

justifies the interposition of a court of equity. Hopthe facts from which the promise is implied apply

kins v. Keller. Opinion by Maxwell, J. equally to more than one. Partnership debts and

[Decided Oct. 14, 1884.] debts of joint-stock companies are always joint; and inasmuch as express words are necessary to make a several agreement, aud especially one that is joint and

NEW JERSEY SUPREME COURT ABSTRACT.* several, the absence of such words makes it on the face of it joint. “This being the rule of the common law, it is evident that the rule remains in this State unless

CORPORATION-PRESIDENT-NO POWER TO EXECUTE changed by statute, for the reason of the rule exists

BOND-JUDGMENT- RECEIVER.— The president of a the same as heretofore. The obligation being joint

corporation has no power, in virtue of his office as it denotes but a single indivisible claim; and so all the

president, to execute a bond and warrant of attorney obligors constitute, as it were, one person owing a

for the entry of a judgment by confession against the siugle debt, and no one owes any part of it. Heuce

corporation. The powers of the president of a corthe necessity of bringing all before the court, and no

poration over its business and property are strictly the others.” Id., $ 92. Our statute has not changed the

powers of an agent-powers delegated to him by the rule. The law of this State upon this question is a lit

*To appear in 46 N. J. L, Reports.






directors, who are the managers of the corporation to pass it, another part of the same act may not be oband the persons in whom the control of its business noxious to the same objection but may be enforced as and property is vested. Boone Corp,, § 144; Titus v. if made in a different statute. But the principle thus Cairo, etc., R. Co., 8 Vroom, 98-102; Leggett v. N. J. invoked is subject to the limitation that the enactBanking Co., Saxt. 541. The president of a corpora- ments thus separated as constitutional and unconsti. tion, organized for business purposes, is its chief exec- tutional must be wholly independent of each other. utive officer, and in virtue of his office has authority If they are so connected and dependent as to warrant to perform all acts of an ordinary nature, which by the belief that the Legislature intended them as a usage or necessity are incident to his office, and may whole, they must stand or fall together. Warren v. bind the corporation by contracts in the usual course Charlestown, 2 Gray, 84-89; State v. Commissioners of of business. His authority to act for the corporation New Brunswick, 9 V room, 3:20; State v. Kelsey, 15 id. may also be enlarged beyond those powers which are 1, 29. Morris v. Carter. Opinion by Scudder, J. inherent in his office, but those are cases where the agency of the officer has arisen from the assent of the directors, from their consent and acquiescence in per- MICHIGAN SUPREME COURT ABSTRACT. mitting him to assume the direction and control of its business, and are instances of the application of the

MASTER AND SERVANT-RISKS OF EMPLOYMENT priuciple that a principal will be liable for the acts of

CONDUCTOR ASSUMING CONTROL OF ENGINE his agent within the apparent authority conferred


BRAKEMAN. - When accidental upon him. Taylor Corp., $ 202, 236-244; Ang. & Ames

injury results to servant from Corp., $$ 299-302; Martin v. Webb, 110 U. S. 7. That

pected cause that arises in the

course of his the president of a corporation is the owner of nearly 1 employment, he must be deemed to have assumed the all its capital stock, and is its superintendent and

risk thereof, and is not entitled to recover therefor. treasurer and the active manager of its affairs, and was

The engineer and fireman in charge of the locomotive accustomed to borrow money for the company's use,

of a railroad train having temporarily left their rewill give him no power to incumber its property by a

spective posts, the conductor, who it was alleged was mortgage or judgment confessed for money borrowed.

incompetent for the purpose, undertook to take the Stowe v. Wyse, 7 Comm. 214; C. &N.W. R., etc., Co. v.

place of the engineer, and ordered a brakeman to make James, 24 Wis. 388. The corporation having become

a coupling, and while he was obeying this order, and insolvent, its receiver, as the representative of credi

in consequence of the unskillfuluess of the couductor, tors, has the capacity to take the objection that a judg.

the brakeman was injured. Held, that he was not enment against the corporation by confession

titled to recover, in an action against the railroad for not obtained in such a manner as to be binding

such injury. In this case, the plaintiff says the engiupon the corporation. Vail v. Hamilton, 85 N. Y.

neer avd fireman temporarily left their posts for some 453. Stokes v. N. J. Pottery Co. Opinion by Depue, J.

purpose unknown to tbe plaintiff. It is not charged CONSTITUTIONAL LAW - LIMITATION-ANTECEDENT that they did so with the company's consent, or that OBLIGATIONS. - The limitation in the act of March there was any wrong connected with their leaving, for 23, 1881 (Pamph. L., p. 184), that suits on bonds which the company was responsible. Suppose they should be commenced within six months from had gone off on a strike; may other persons employed the date of the sale of mortgaged premises, is so con- on the train refuse to assist in moving it out of the nected with the other parts of the act as to be insepar- way of other trains? Surely this question must be able, and as to antecedent obligations, is unconstitu- answered in the negative. If under any circumstantional. In Baldwin v. Flagg, 14 Vroom, 495, the sec- ces, the conductor may rightfully take charge of the ond section of the act was construed, and the court say engine, this suit must fail, as there is no allegation in ibat as applied to antecedent obligations, it is in viola- the declaration to show that in this case he was tion of the constitutional prohibition of the Legisla- not justified. And he, being the person responsible ture to pass any law impairing the obligation of con- for the safety and management of the train, must tracts, or depriving a party of any remedy for enforc- be allowed a certain discretion in deciding upon ing a contract which existed when the contract was emergencies, and the presumption must favor his acmade, for the reasons that the act uot only postpones tion. And when he acts rightfully, it is contemplated the obligee's remedy on his bond until the foreclosure in the employment of his subordinates that they, proceedings are terminated, but also impairs the within their several spheres, shall assist him. That value of the mortgage security by subjecting the pur- there is nothing in the Bayfield case, which in the chaser's title to conditions of redemption after sale opinion of the judges who decided it, conflicts with which must diminish the vendible value of the not- this view, is apparent from the case of Greenwald v. gaged premises. Coddington v. Bispham, 9 Stew. Eq. M., H. &0. R. Co., 49 Mich. 197 ; S. C., 13 N. W. Rep. 574, in the Court of Errors and Appeals, approves this 513. In that case a fireman was ordered to perform construction, and settles its authority. In these cases, the engineer's duty, and while doing so an injury ocit is now said, the court has passed on the effect of the curred to a brakeman, for which suit was brought. law as it attempted to control the obligee and mort- The chief justice, speaking for the court, said the order gagee's right to prefer either his bond or mortgage by was a proper one beyond question;" and the case suit in enforcing his remedy for the debt thereby se- was disposed of on that assumption. But as respects cured, but it does not directly say, because it was not the propriety and rightfulness of the order, that case called for by the facts of these cases, that when this stands upon exactly the same grounds with this. The preference is made by first foreclosing the mortgage case of Houston, etc., R. Co. v. Myers, 55 Tex. 110; S. the holder of the bond is not subject to the limitation C., 8 Am. & Eng. R. Cas. 114, is directly in point here. to bring his action on it within six months from the That case differs from this only in the fact that it was date of the sale of the mortgaged premises. It is

the fireman and not the conductor who was managing claimed by this plea, aud the argument for its legality, the engine, and who was alleged to be incompetent for that the limitation to the suit on the bond after fore- the duties of the engineer. A brakeman, who was in: closure la separable from the faulty parts of the stat- jured while the fireman was thus in charge, brought ute. This supposed distinction is based on the rule suit against the railroad company, but was held not that wbere one part of a statute is unconstitutional entitled to recover. The judge of the Superior Court because it is not within the scope of legislative power

took the same view of this case, and we think his judg.

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ment should be affirmed. The opinion of this court in courts of this State can acquire jurisdiction to render Detroit Savings Bank v. Zeigler, 52 Mich. ; S. C., a personal judgment against a defendant when he is a 1 Am. & Eug. Corp. Cas. 333, contains much respect- non-resident, and is not served with process within its ing mutual assistance by subordinates in special cases, jurisdiction, but is served out of the jurisdiction with that applies with force to the case of servants in var- notice of suit having been commenced against him, and ious capacities on a railroad train. Rodman 7. Mich. of garnishment proceedings against his debtors within Cent. R. Co. Opinion by Cooley, C. J.

the jurisdiction; and a judgment so rendered will pro[Decided Oct. 15, 1884.)

tect the garnishee against liability over to the princi.

pal defendant for the amount of any judgment ren. MASTER AND SERVANT-CONTRACT-TERM OF CER

dered against him in the garnishment proceedings. It VICE-EVIDENCE-QUESTION FOR JURY.-Plaintiff en

is a well-recognized principle that every State possesses tered into the service of defendant on November, exclusive jurisdiction and sovereignity over persons 1880, under a written contract dated October 29, 1880,

and property within its territory, and it may make on a salary “of $2,000 per year, payable in monthly laws to subject property situated within its limits, payments,"and continued in such service until March

owned by non-residents, to the payment of claims due 21, 1883, when he was discharged. Held, in an action

to its own citizens from them. Such legislation is by plaintiff to recover the balance of the year's salary,

based upon the necessity of tbe case, and the injustice that the contract was admissible in evidence, and that

which would result from permitting non-resident whether or not the biring was from year to year or debtors to withdraw their property or assets from the from month to month was a question for the jury. jurisdiction of the State, and is a legitimate exercise Tallon v. Grand Portage, etc., Co. Opinion by Sher

of its authority to hold and appropriate the property wood, J.

of such debtors to satisfy the claims of its own citi[Decided Oct. 22, 1884.]

zens. 1 Smith Lead. Cas. (7th ed.) 1121, et seq. In the PARTNERSHIP-WHAT CONSTITUTES.-When a con

absence of personal service upon the non-resident de. tract between parties contemplates action to be taken

feudant within the jurisdiction of the court, or his at once and coutinuously for the joint benefit, one

voluntary appearance in the suit, the jurisdiction can party to furnish the money in advance and the other

extend no further than an inquiry as to the amount of to give his time and attention to putting up machin

the obligation of the non-resident to its own citizens ery to carry on the proposed enterprise, a present part

for the purpose of showing the extent necessary to nership is created, and not merely an agreement to

control the disposition of the property. Picquet v. form a future copartnership entered into. The pur

Swan, 5 Mas. 35; Boswell's Lessee v, Otis, 9 How. 336; pose must be derived from the nature of the agree

Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 ment, and not from the meaning of the words as pres

U. S. 714; Freem. Judgm., $ 573; Whart. Conf. Laws, ent or future, standing alone. Kerrick v. Stevens. Opin

S$ 649, 715; Am. Lead. Cases (5th ed.), 625, et seq. Jurision by Campbell, J.

diction in such cases is upheld mainly upon the ground [Decided Oct. 22, 1884.]

that the object of the proceedings is to subject certain

specified property to the payment of the demand, and MUNICIPAL CORPORATIONS — CONTRACT WITHOUT are substautially proceedings in rem against the propFORMALITIES REQUIRED BY CHARTER-INTERVENTION erty, and are justified by principles underlying such OF ATTORNEY GENERAL-INJUNCTION.–Where the for- proceedings. Whart. Confl. Laws, $ 717; Waples Proo. inal provisions of a city charter have not been fol- in Rem, ch. 55, and cases cited above. One of the eslowed, preliminary to entering into a contract for sential requirements to sustain proceedings in rem is lighting the streets of the city, no bad faith or inten- that notice shall be given, either general to all the tional abuse of authority being charged or shown, the world, or special to the parties interested. The statState has no interest that will justify the interven- ute under consideration provides for such notice, and tion of the attorney-general by information to enjoin that it shall be served upon the party interested, and the corporate authorities from carrying such contract proof thereof filed before judgment can be entered. into execution. In Attorney-General v. City of De- Moore v. Wayne Circuit Judge. Opinion by Chamtroit, 20 Mich. 263, we said that “every misuse of cor

plin, J. porate authority is, in a legal sense, an abuse of trust; (Decided Oct. 15, 1884.] and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it." PENNSYLVANIA SUPREME COURT But in the same case it was added: “Where how

ABSTRACT. ever the attorney general is to intervene in corporate affairs on behalf of the State, the abuse should be one of a substantial nature, and not of a character merely

WILL-TRUST-POWER OF DISPOSAL.-A testator, in technical or unimportant. It should appear that the

a will disposing of a considerable estate of his own and

of a larger estate of his deceased wife which he enpublic has a substantial interest in the question. The right involved should be a public right, or at least

joyed for life, and as to which he had an absolute not a private right merely. The wroug done or at

power of appointment, made this provision: “The tempted, if it consist solely in a misuse or misappro

residue of my estate, of every kind, and that left to me priation of funds, should be either one involving ques

by my beloved wife by her last will and testament to tions of public policy, or where that is not the case,

dispose of as I deemed best, I direct my executors to the amount involved should be something more than

divide into five parts.” He then devised and bemerely nominal; something that it is not beneath the

queathed one part each to his two sons and one each to dignity of the State to take notice of and protect by

his three daughters. He further provided, “the three such a proceeding. The remedy is somewhat extraor

last parts of my estate are to be held in trust by my divary, and substantial grounds ought to appear to

executors or trustees and the interest to be paid anjustify a resort to it.” Atty.-Gen. v. City of Detroit.

pually into their own (the daughters') hands." TesOpinion by Cooley, C. J.

tator further gave his daughters power to dispose of [Decided Oct. 22, 1884.]

their shares by will if they should leave no children,

but if either should leave children they were to take JURISDICTION-GARNISHMENT -NON-RESIDENCE OF their mother's share at her death. If any of testator's PRINCIPAL DEFENDANT--PERSONAL JUDGMENT.-The children died before attaining majority, he provided

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