« ПретходнаНастави »
praisal before the same or new commissioners in its of the United States may be extended, and Congress discretion.” It does not appear in the order appealed may therefore lawfully provide for bringing, at the from that it was not made in the exercise of the dis. option of either of the parties, all such controversies cretion thus confided to the Supreme Court, and we within the jurisdiction of the Federal judiciary." cannot look at the opinion to see upon what ground "And if by the law obtaining in the State, customary the new appraisal was ordered. In re Kings Co. Ele- or statutory, they can be maintained in a State court, vated Railway Co., 82 N. Y. 95. Besides this is a spec- whatever desiguation that court may bear, we think ial proceeding, and appeals to this court are allowed they may be maintained by original process in a Fedonly from final orders in such proceedings, and this eral court, where the parties on one side are citizens order is not final. Code, $ 190; Iv re Moore, 67 N. Y. of the State of Louisiana, and on the other citizens of 555; In re Horsfalls, 77 id. 514; Roe v. Boyle, 81 id. 305. other States." This court reversed the judgment of The order does not become final, because the appraisal the Louisiana courts, and held that the application for to be made by the new commissioners may, under sec- the removal should have been granted, and ordered tion 18, be final and conclusive. It is nevertheless not the case to be remanded to the parish District Court, a final order, and if the result should be that the com- with directions to make the transfer. The cases of pany will not be able to bring to this court for review Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 the question of law upon which, it appears from the How. 170, are to the same effect. In the latter case opinion of the General Term. the new appraisal was the court said, with much force and propriety, that it ordered, it will be the fault of the law and not of this “had repeatedly decided that the jurisdiction of the court. It however upon the new appraisal the com- courts of the United States over controversies between missioners should proceed upon a fundamentally erron- citizens of different States cannot be impaired by the eous view of the law, and one that does either party in- laws of the States which prescribe modes of redress in justice, the ingenuity of counsel may possibly discover their courts, or which regulate the distribution of their some mode for correcting the error, and if necessary. judicial powers." The case of Boom Co. v. Patterson, for procuring a review of the question in this court.
98 U. S. 403, is also iu point. That was a special proIn re P. P. & C. I. R. Co., 85 N. Y. 489, 496. Matter of ceeding to condemn property under laws of the State New York & Harlem R. Co. Opinion by Earl, J.
of Minuesota in the exercise of the right of eminent [Decided Jan. 20, 1885.]
domain, which commencing before special commissioners to assess damages, was by appeal brought into
& court of general jurisdiction, and from there reUNITED STATES SUPREME COURT AB
moved, rightfully as this court held, into the Circuit
Court of the United States. The case before us was STRACT.
one removable into the court of the United States.
Hess v. Reynolds. Opinion by Miller, J.
[Decided Jan. 5, 1885.] TOR-CITIZENSHIP.- A proceeding in a State court against an administrator, to obtain payment of a debt PRACTICE-WISCONSIN-CUSTODY OF RECORD-WRIT due by the decedent in bis life-time, is removable into OF ERROR-TO WHAT COURT DIRECTED-STATUTE OF a court of the United States when the creditor and the LIMITATIONS_RECORD.--As by the practice of Wisconadministrator are citizens of different States, notwith- sin the record itself is remitted by the State Supreme standing the State statute may enact that such claims Court to the inferior court from whose judgment apcan only be established in a Probate Court of the State, peal was taken, a writ of error from the Supreme or by appeal from that court to some other State court. Court of the United States should, in a proper case, be All debts to be paid out of the assets of a deceased brought to such inferior court, though the judgment mau's estate shall be established in the court to which of the latter was the judgment which the State Suthe law of the domicile has confided the general ad- preme Court directed it to enter. It is the record of ministration of these assets. And the courts of the the judicial decision or order of the court found in the United States will pay respect to this principle in the record-book of the court's proceedings which constiexecution of the process enforcing their judgments tutes the evidence of the judgment, and from the date out of these assets, so far as the demands of justice re- of its entry in that book the statute of limitations bequire. But neither the principle of convenience nor gins to run. This is a writ of error to the Circuit the statutes of a State can deprive them of jurisdic- Court of Wisconsin for the county of La Crosse, and a tion to hear and determine a controversy between cit- motion is made to dismiss it. The first ground of the izeus of different States when such a controversy is motion is that the writ should have been directed to distinctly presented, because the judgment may affect the Supreme Court of the State, and cannot be rightthe administration or distribution in another forum fully directed to the Circuit Court of the county. It of the assets of the decedent's estate. The contro- appears that the defendant in error here was plaintiff verted question of debt or no debt is one which, if the in the Circuit Court of La Crosse county, and brought representative of the decedent is a citizen of a State its action against Polleys and others for relief in redifferent from that of the other party, the party prop- gard to their obstructing the navigation of Black erly situated has a right, given by the Constitution of river and its branches. The Circuit Court denied the the United States, to have tried originally or by re- relief and dismissed the bill. On appeal the Supreme moval in a court of the United States, which cannot Court of the State reversed this judgment and delivbe defeated by State statutes enacted for the more ered an opinion that plaintiff was entitled to relief in convenient settlement of estates of decedents. These the premises; and it made an order remanding the views have been expressed by this court in many cases case to the Circuit Court, with directions "to enter where they were proper grounds for the decisions judgment in accordance with the opivion of this (that) made. The latest of them, in which the others are re- court.” It appears by the cases cited to us, and by viewed with care, is that of Ellis v. Davis, 109 U. S. the course of proceedings in such cases in the Wiscon485
, in which the opinion was delivered by Mr. Justice sin courts, that the record itself is remitted to the inMatthews. Among the cases there cited with appro- ferior court, and does not, nor does a copy of it, reval is that of Gaines v. Fuentes, 92 U. S. 10. This main in the Supreme Court. Though the judgment in court said: “The Constitution imposes no limitation the Circuit Court was the judgment which the Suupon the class of cases involving controversies between preme Court ordered it to enter, and was in effect the citizens of different states to which the judicial power judgment of the Supreme Court,'it is the only final
judgment in the case, and the record of it can be to bearer, are commercial securities, possessing the found nowhere else but in the Circuit Court of La same qualities and incidents that belong to what are Crosse county. To that court therefore according to strictly promissory notes, negotiable by the law-mermany decisions of this court, the writ of error was chant. There is no reason why such bonds, issued properly directed to bring the record here for review. under the authority of law, and made payable to a Gelston v. Hoyt, 3 Wheat. 246; Atherton v. Fowler, named person, or order, sbould not, after being in. 91 U. 8. 146. It is insisted that the writ of error was dorsed in blank, be treated by the courts as having not brought within time. Section 1008 of the Revised | like qualities and incidents. That they are so reStatutes declares that “no judgment, decree, or order garded by the commercial world cannot be doubted. of a Circuit or Distriot Court, in any civil action at Manfg. Co. v. Bradley, 105 U. S. 180. But it is conlaw, or in equity, shall be reviewed in the Supreme tended that the word “negotiable,” in the Iowa statCourt, on writ of error or appeal, unless the writ of ute, is qualified by that clause, in the same enactment, error is brought or the appeal taken within two years which provides that bonds issued under it shall be after the entry of such judgment, decree, or order." “payable at the pleasure of the district at any time This rule is applicable to writs of error to the State before due." These words were not inoorporated into courts in like manner as to Circuit Courts. Scarbor- the bond. But if the holder took subject to that proough v. Pargoud, 108 U. 8. 567. In the case of Brooks vision, as we think he did, it is clear that this option v. Norris, 11 How. 204, construing the same language of the district to discharge the debt, in advance of its in the judiciary act of 1789, it is said, “that the writ of maturity, did not affect the complete negotiability of error is not brought, in the legal meaning of the term, the bords; for by their terms, they were payable at a until it is filed in the court which rendered the judge time which must certainly arrive. The holder could ment. It is the filing of the writ that removes the not exact payment before the day fixed in the bonds. record from the inferior to the Appellate Court, and The debtor incurred no legal liability for non-pay. the period of limitation prescribed by the act of Con- ment until that day passed. The authorities bearing gross must be calculated accordingly." This language upou this question are cited in Byles Bills (Sharswood's is repeated in Mussina v. Cavazos, 6 Wall. 355, and in ed.), ch. 7; 1 Daniel Neg. Iust., $ 43 et seq. ; Chit. Bills, Scarborough v. Pargoud, supra. Though the writ of 525 et seq. In School-distriot v. Stone, 106 U. $. 183, error in this case seems to have been issued by the it was held in reference to similar bonds issued by clerk of the Circuit Court of the United States on the another independent school district in the same 10th day of May, 1884, and is marked by him for some county, that their recitals were not sufficiently comreason as filed on that day, it is marked by the clerk | prehensive to cut off a defense resting upon the ground of the court to which it is directed, namely, the Cir- that the bonds there in suit were in excess of the cuit Court of La Crosse county, as filed on the 29th amount limited by the State Constitution, and conday of that month. It is not disputed that this sequently invalid. Applying that decision to the presis the day it was filed in his office. This must be ent case, counsel for the district insists, that as these held to be the day on which the writ of error was bonds may be open to such a defense as was made in brought. The judgment which we are asked to review Scbool-district v. Stone, they cannot be deemed negoby this writ was entered in the Circuit Court of La tiable by the law-merchant; in other words, that the Crosse county, May 24, 1882. It is signed by the judge negotiability of the instrument ceases whenever the on that day, and is expressly dated as of that day, and maker is permitted, as against a bona fide holder for it is marked filed on that day over the signature of the value, to establish a defense based upon equities beclerk of tbat court. This is the judgment, the entry tween the original parties. But such is not the test of the judgment, and on that day the plaintiff in error prescribed by the statute defining the jurisdiction of had a right to his writ, and on that day the two years the Circuit Courts of the United States. If a promisbegan to run within which his right existed. It seems sory note is expressed in words of negotiability, the that the courts of Wisconsin, either by statute or by right of the holder of the legal title to invoke the jurcustomary law, keep a book called a judgment docket. isdiction of the proper Circuit Court of the United In this book are entered, in columns, the names of States is not affected by the citizenship of any prior plaintiffs who recovered judgment, and the defend | holder, or by the circumstance that the party sued asants against whom they are recovered. In another serts, or is able to make out, a valid defense to the accolumn is entered the amount of the principal judg- tion. The Constitution of Iowa provides that "every ment and the costs and the date of the judgment act shall embrace but one subject, and matters propitself. This record is kept for the convenience of par- erly connected therewith, which subject shall be exties wbo seek information as to liens on real estate or pressed in the title. But if any subject shall be em. for other purposes. This docket however is made up braced in an act which shall not be expressed in the necessarily after the main judgment is settled and en- title, such act shall be void only as to so much thereof tered in the order-book,'or record of the court's pro- as shall not be expressed in the title.” The title of the ceedings, and it may be many days before, this ab. statute under which those bonds were issued is, "An stract of the judgment is made in the judgment docket, act to authorize independent school-districts to boraccording to the convenience of the clerk. It is the
row money and issue bonds therefor for the purpose record of the judicial decision or order of the court of erecting and completing school-houses, legalizing found in the record-book of the court's proceedings bonds heretofore issued, and making school-orders which constitutes the evidence of the judgment, and draw six per cent interest in certain cases." The act from the date of its entry in that book the statute of contains six sections; the fourth providing that "all limitations begins to run. It follows that the writ of
school-orders shall draw six per cent interest after error in this case was brought five days after the two
having been presented to the treasurer of the district years allowed by law had expired; and it must be dis- and not paid for want of funds, which fact shall be inmissed. Polleys V. Black River Imp. Co.
Opinion by dorsed upon the order by the treasurer.” As there Miller, J.
are two kinds of school-districts in Iowa, "district [Decided Jan. 12, 1885.]
township” and “independent district," the latter
carved out of the former, it is contended that the title MUNICIPAL BONDS-NEGOTIABLE-IOWA STATUTE- to the act in question embraces two subjects: one reCONSTITUTIONAL LAW--SUBJECT EMBRACED IN TITLE. lating to matters in which independent school-districts -The decisions of this court are numerous to the effect alone are concerned, and the other to matters in which that municipal bonds, in the customary form, payable the township district and independent districts are,
- NO EX
concerned. That whether school-orders, which may observation in the witness, other than it has enabled
EMPLARY DAMAGES AGAINST SHERIFF CHATTEL by the same court in subsequent decisions, and they
MORTGAGE-VOID-HINDER AND DELAY.-In an action are decisive against the point here raised. Morford v.
to recover the possession of personal property the Unger, 8 Iowa, 82; Davis v. Woolnough, 9 id. 104; plaintiff is not entitled to recover as actual damages McAunich v. Mississippi & M. R.. Co., 20 id. 342; attorney's fees for the prosecution of the case, when the Farmers' Ins. Co. v. Highsmith, 44 id. 334. The gen
elements of malice, gross negligence or oppression do eral subject to which this special act relates is the sys
not mingle in the controversy. In an action against a tem of commou schools. That system is maintained
sheriff to recover the possession of personal property through the instrumentality of district schools of different kinds. Provisions in respect of those instru: wrongfully seized by the officer under an execution in
his hands, the sheriff, if not guilty of fraud, malice, mentalities--those referring to the erection and com
gross negligence or oppression in the execution of the pletion of school-houses in independent school-districts with money raised upon negotiable bonds, and
process, is not liable in vindictive or exemplary damothers
, to the rate of interest which all school-orders ages. A sheriff in seizing goods under a writ of exeshall bear-relate to the same general object, and are
cution is responsible in damages if he takes the goods
of the wrong person; and if acting under color of only steps toward its accomplishment. See also Montclair V. Ramsdell, 107 U. S. 153, where this sub- process he is guilty of fraud, malice, gross negligence
or oppression in the execution of the process, he may ject was considered. Independent School Dist. v. Hall.
be held liable in exemplary damages. Wiley v. Keo. Opinion by Harlan, J. (Decided Jay. 19, 1885.]
kuk, 6 Kans. 94; Nightingale v. Scannell, 18 Cal. 315; Cable v. Dakin, 20 Wend. 172. But where a sheriff wrongfully seizes property upon an execution in his
hands, and there is no malice, gross negligence, oppresKANSAS SUPREME COURT ABSTRACT.* sion or improper motive on his part in the seizure, he
is not liable in exemplary or vindictive damages. MARRIAGE - - DECLARATIONS TO PROVESANITY- Wiley v. Keokuk, supra; Phelps v. Owens, 12 Cal. 22; OPINION OF NON-PROFESSIONALS--WHEN AVOIDED FOR Dorsey v. Manlove, 14 id. 553; Nightingale v. Scannell, MENTAL UNSOUNDNESY.—Where a marriage contract is supra; Bell v. Campbell, 17 Kans. 212, and cases cited. claimed to be void upon the ground that the man was The case of Tyler v. Safford, 31 Kaug. 608, to which we 80 affiioted with paralysis at the marriage ceremony
are referred, is not in point, because that was an acthat he could not comprehend what was passing at the tion brought upon an attachment undertaking, and time, it is competent for the woman seeking to sustain the measure of damages in such a case is different from the contract to offer in evidence the written and oral one of this character. Where a chattel mortgage or declarations of the man made prior and repeated up written assignment of personal property is executed in to within a short time of the ceremony, showing that part to indemnify the mortgagees or assignees against the relations of the parties were affectionate; that the a possible liability on a redelivery bond, and another man had stated that he could not live happily without and important object of the instrument is to delay, her; that he intended she should have his property, as hinder and defraud the creditors of the mortgagors or she helped to make it; that they had corresponded assignors, and such intention is participated in by all several months, and that the contract of marriage be- the parties thereto, such instrument is fraudulent in tween them bad already been made. Non-professional toto, and cannot be supported to any extent as against witnesses, baving sufficient opportunity of observing a such creditors. Winstead v. Hulme. Opinion by Horperson alleged to be insane, or non compos mentis,may give their opinions as to his sanity or mental condition
INTOXICATING LIQUOR, UNLAWFULLY FURNISHED.as the result of their personal observation, after first
A physician having no permit therefor cannot under statiog the facts which they observed. This is now
the statute lawfully furnish intoxicating liquor as a the recognized rule in all the States except Massachu- medicine to a patient who is actually sick, and charge Betts, Maine, New Hampshire and Texas. While such
and receive pay for the same. The method and the opinions are admissible, yet no general rule can be laid
means of regulating the sale of intoxicating liquors for down as to what shall be a sufficient opportunity of the excepted purposes mentioned in the Constitution
must be referred to the wisdom and discretion of the * Appearing in 32 Kansas Reports.
ton, C. J.
Legislature. The various provisions of the enacted statute all tend to show that the Legislature had uointention to permit physicians, druggists or any other person to sell intoxicated liquors for the excepted purposes “without first having procured a druggists' permit therefor from the Probate judge." Ita lex scripta – 80 the law is written. We cannot make the law, por by judicial construction change or modify its terms so as to legalize sales which are expressly probibited. Woods v. State, 36 Ark. 36; Wright v. People, 101 Ill. 126; State v. Hall, 39 Me. 107; State v. Brown, 31 id. 523; Commonwealth v. Sloane, 58 Mass. 52. Counsel refer to the statutes of several States forbidding the sale of intoxicating liquors, which contain no exceptive provisions, and cite decisions from those States to the effect that the Legislatures of those States must be presumed to have left the necessity of saving life and curing the sick to operate as an implied exception to the general terms of the statutes. Thomason v. State, 50 Ind. 449; State v. Mitchell, 28 Mo. 563; State v. Larimour, 19 id. 391; State v. Wray, 72 N. C. 253. Some of these cases are in conflict with the previous decisions of this court. While the old dramshop act regulating the sale of intoxicating liquors was in force, this court decided that druggists had no right to sell intoxicating liquors, even for medical purposes, without license. City of Salina v. Seitz, 16 Kans. 143. But the decisions cited by the defend. ant are not applicable to the present case, because there is embodied in the statute of this State a specifio provision made for the sale of intoxicating liquors for medical purposes, aud the statute is bristling all over with provisions tending to show that it was in the mind of the Legislature, at the time the statute was adopted to forbid physicians and all other persons from selling or bartering intoxicating liquors for medical purposes, without first having procured a permit. It is very true that the evil sought to be remedied by the statute is the use of intoxicating liquors as a beverage, and that this purpose interprets the law. IntoxicatingLiquor cases, 25 Kaps. 751. But the idea of prohibition as embraced in the statute is the absolute destruction of the use, as a beverage, of intoxicating liquors. To accomplish this, the Legislature has seen fit to throw severe restrictions around the anministering of liquors even as a medicine. It has attempted thereby to prevent the excepted sales from becoming the ways and means of rendering the statute abortive. Whether the Legislature has acted wisely, it is not for us to say, For the law, the Legislature and uot the courts is responsible. It is ciearly indiscreet to prosecute trausactions like the one charged in the complaint; but the defendant had no right to administer liquor as a medicine contrary to the provisions of the statute. State v. Fleming. Opinion by Horton, C. J.
TAXATION-NOTICE TO OWNER-ENJOINING COLLECTION.–There is no doubt that notice of some kind must be giveu to a property owner and an opportunity given him to he heard before an assessment upon his property becomes finally and irrevocably fixed. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep. 385; Same v. Same, 13 id. 7:22; Thomas v. Gain, 35 Mich. 155; Butler v. Supervisors, 26 id. 22; Paul v. Detroit, 32 id. 108; Philadelphia v. Miller, 49 Penn. St. 440; Patten v. Green, 13 Cal. 325; Gatch v.Des Moines, 18 N. W. Rep. 310. And that the notice should be provided for in the statute or ordinance authorizing the improvement, there is no doubt. The object of notice however is to enable the property owner to protect his rights by the proper proceedings. If he appear in the case the object of notioe has been accomplished, nor will he be heard afterward to complain on that ground. But even where there is neither notice nor appearance, but the circumstances were such that he must have known the facts, if there was authority to impose the tax, a party cannot, after the improvemeut is made, enjoin the collection of the tax assessed to pay for the same; in other words, retain the benefit derived from the improvement without doing equity by tendering the amount for which the property would be justly liable. La Fayette v. Fowler, 34 Ind. 140; Sleeper y. Bullen, 6 Kan. 300; Evansville v. Pfisterer, 34 Ind. 36; Weber v. San Francisco, 1 Cal. 455; Kellogg v. Ely, 15 Ohio St. 64; Tash v. Adams, 10 Cush, 252; Motz v. Detroit, 18 Mich. 495; Warren v. Grand Haven, 30 id. 24; Peoria v. Kidder, 26 Ill. 351. Barker v. Omaha. Opinion by Maxwell, J. [Decided Aug. 26, 1884.]
USURY-QUESTION OF INTENT-PLEADING.–To constitute an usurious transaction there must be a loan, and there must be an intent to take usurious interest. Pomeroy v. Ainsworth, 22 Barb. 118; Reed v. Coale, 4 Ind. 283; 2 Pars. Bills & Notes, 405. Both parties must concar in this intent-the borrower to give and the lender to accept usurious interest. State Bank v. Coquillard, 6 Ind. 232; Evans v. Negley, 13 Serg. & R. 218; 'Leavitt v. De Launy, 4 N. Y. 364; Agricultural Bank v. Bissell, 12 Pick, 586; Bank v. Waggener, 9 Pet. 378; Lloyd v. Scott, 4 id. 205. The intent which is essential is not intent to violate the statute, but to take more than the rate fixed by law. Abb. Tr. Ev. 793 ; Fiedler v. Darrin, 50 N. Y. 437. The intent may be deduced from the facts proved, as by the reservation of interest in excess of the legal limit (Abb. Tr. Ev. 793); but the proof cannot make a stronger defense than the answer in the case. It is therefore essential in pleading usury to state with whom the usurious agreement was made, its nature, and the amount of usurious interest agreed upon or received. Manning v. Tyler, 21 N. Y. 567; Maxw. Pl. & Pr. (3d ed.) 105. New England, etc., Co. v. Sanford. Opinion by Maswell, J. [Decided Nov. 18, 1884.)
NEBRASKA SUPREME COURT ABSTRACT.
OHIO SUPREME COURT COMMISSION AR
SALE-STOPPAGE IN TRANSIT.—The right of stoppage in transitu may be asserted by the vendor of the goods at any time before their delivery to the vendee by the carrier. But if the goods are by the vendee sold to a third party in good faith for value, and they are by the carrier delivered to the vendee, who delivers them to his vendee, the lien of the consignor is lost, and he cannot retake the goods in the possession of such ven. dee of his vendee. Hutch. Car., $ 409; Story Sales, ss 318, 319; Newball v. Vargas, 13 Me. 93; Fraschieris v. Heuriques, 6 Abb. Pr. (N. S.) 251. United States, etc., Pump Co. v. Oliver. Opinion by Reese, J. (See 35 Am. Rep. 17.) [Decided Nov. 18, 1884.]
MARRIAGE WIFE SEPARATE ESTATE THAT HUSBAND MAY USE.--If a wife, when asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and he, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his
*To appear in 41 Ohio State Reports.
own use and benefit. It is not necessary that the ag. go upon the adjacent lands. The liability of the city sent of the wife shall be established by evidence prov- for the injury sustained by the plaintiff is contended ing words spoken or written by her. If it be clearly | for upon the principle of the cases of Hargreaves v. proved that the wife was called to act upon a definite Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314; proposal that she should consent to her husband's re- Mullen v. St. John, 57 N. Y. 567; Beck v. Carter, 68 duction to possession of a specific article, or part of id. 283, and many others, that a municipal corporaher separate property, for his own use aud benefit, and tion is liable for injuries resulting from obstructions, that she did act affirmatively upon that proposal, the excavations, pitfalls or other dangerous condition of assent is express within the obvious meauing of this premises outside of the street, but so near to it as to statute. Pollock's Principles of Contract, 28, and cause injury to persons in the proper and lawful use of cases cited; 1 Story Cont., 14, Alexauder v.Vaue, 1 M. the street, and upon the principle also of the cases of & W.511. Franc v. Nirdlenger. Opinion by Granger, | Bennett v. Railroad Co., 102 U. S. 577; Sweeny v. Old C.J.
Colony Railroad, 10 Allen, 368; Larue v. Farren Hotel NEGOTIABLE INSTRUMENT-MATERIAL ALTERATION
Co., 116 Mass. 67, that the owner of land is liable to --SURETY-CONTRIBUTION.-(1) The rule is elementary, persons who go upon it, by invitation express or imthat a material and intentional alteration of a written plied, for injury arising from
the unsafe or dangerous instrument will avoid it, when the alteration is made condition of the premises. The plaintiff was walking by or with the privity of one claiming a benefit under along the sidewalk immediately before the accident the iustrument, and after the instrument has been de occurred. The place where he fell into the excavation livered and taken effect. Fullerton v. Sturges, 4 Ohio
was about thirty feet from the sidewalk or street St. 529 and cases cited. In German Bauk v. Dunn, 62 proper. The north end of the excavation did not come Mo. 79, after a note was completed, in the absence and within thirty feet of the street. A person therefore without the authority or knowledge of the maker, the
in the ordinary use of the sidewalk would seem to name of the payee was by the holder erased, and his have been out of all possible danger of falling into the own name substituted. In the case of Stoddard v.
excavation. If the excavation had been so near the Penuiman, 108 Mass. 366, the action was to charge the street that a person had fallen into it while passing on defendant as an original promisor upon a promissory the sidewalk and in the ordinary use of it, à liability note. It appeared that the note was made payable to for resulting injury would follow. This excavation the maker's order; that while it was in this condition,
was so far from the street that it could have caused no and before the maker indorsed it, the defendant put injury, except when the person passing along the sidehis name ou the back of it for the maker's accommo
walk turned out of his way, as the plaintiff clearly did dation; and that in negotiating it to the plaintiff, the in this case, and went to it. Protection against pitmaker altered its face so as to make it payable to the falls, excavations, or other dangerous condition of plaintiff's order, without the defeudant's knowledge | grounds is extended to those only who are there by or consent. It was held that this was a material alter | invitation express or implied. If business is carried ation, and avoided the defendant's liability. See also
on upon the lot, or any curiosity kept there, open to Cumberland Bank v. Hall, 1 Halst. 215; Dolbier v.
the public, or any inducement or allurement held out Norton, 17 Me. 307. (2) It is the general rule that if
to the public beyond a mere permission to go there, several persous become co-sureties, by the same in the duty to keep the premises safe arises; but is a lot strument, and one surety pay the demand, or more
is left unfenced a person who goes upon it by bare perthan his own proportion of it in reference to the nudi
mission because there is no obstruction to keep him off, ber of his co-sureties, and thereby relieve the latter goes at his own risk. Railway Co. v. Bingham, 29 Ohio from liability, he may recover against each .co-surety
St. 364; Beck v. Carter, 68 N. Y. 283. Kelley v. City of his aliquot share or proportion of the debt, or of the
Columbus, Opinion by MoCauley, J.
NEGOTIABLE INSTRUMENT—ALTERATION-DOES NOT payment. But notwithstanding his discharge, he paid
RELEASE WHEN CONSENTED TO-BONA FIDE HOLDER, the note sua sponte, and having done so, he could have (1) The material alteration of a promissory note avoids no claim for contribution upon the other joint and sey
the note as to the maker not consenting thereto, even eral makers who were his co-sureties. To establish a
in the hands of a bone fide holder. Bauk v. Hall, 1 claim for contribution, the payment must have been
Halst. N. J. L. 215; Stoddard v. Penniman, 108 Mass. made by him under a legal and fixed obligation. Pitt 366; Draper v. Wood, 112 id. 315; 17 Am. Rep. 92, 106; !, Purssord, 8 M. & W. 538; Davies v. Humphreys, 6 2 Dan. Neg. Inst., S$ 1387-1390. (2) If a promissory note id. 153; 2 Parsons' N. & B. 253. In the emphatic lan
be altered by substituting another payee for the origi. guage of the court in Russell v. Failor, 1 Ohio St. 327 : ) nal payee with the knowledge and consent of one of “Upon no principle of justice or sound reason, can a
the makers, but without the knowledge or consent of surety, by voluntarily paying money on a void note,
the other maker, such material alteration releases impose au obligation upon à co-surety for contribu- from all liability the maker not consenting. Lanier v. tion." Davis v. Bauer. Opinion by Dicknian, J.
McCabe, 2 Fla. 32; Prince v. Crawford, 50 Miss. 344;
Crossthwait v. Ross, 1 Humph. (Tenn.) 23; Smith v. MUNICIPAL CORPORATION
NEGLIGENCE -- PUBLIC Sloane, 37 Wis. 285; 19 Am. Rep. 757; Deardorf v. BUILDING-EXCAVATION FOR. -A city is not liable for Thatcher, 78 Mo. 128; 1 Dan. Neg. Inst., $$ 355-358. (3) an injury resulting from the unsafe or dangerous con- Where a note given for a threshing machine jointly dition of lands adjacent to a street where the place of owned by H. and L. was executed in the individual danger is so far from the street that no injury can re- names of H. and L., and H. and L. are in partnership sult to persons in the ordinary and proper use of the in the operation of the machine-dividing the profits street. The owner of land is not liable for injury re- and losses equally-and while such relation exists the sulting from the unsafe or dangerous condition of his payee in the note is altered by substituting the name premises
, to persons who go upon them without invi- l of O. for the original payee, and the alteration is made tation express or .mplied. The fact that a pavement with the knowledge and consent of H., but without was continuous from a sidewalk on a street over the the knowledge or consent of L., held, as H. and L. are adjacent lauds to the place of danger, was not of itself slot in a trading or commercial partnership, H. had no an implied invitation to a person on the sidewalk to authority to make the material alteration in the note