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the debtor, and when pleaded at law it must be witness, the difference in the sales of his beer before
brought into court for the creditor. It may be the and after the construction of the starch factory. Held,
precise pieces of money need not be kept separate, but that the question was properly allowed, the other
the amount must be kept at all times subject to be re- proof showing that the flow of the slops from the
ceived by the creditor when he calls for it. Thayer sewer affected the atmosphere at the brewery, and the
p. Meeker, 86 III. 470; Crain v. McGoon, id. 431 ; Stow plaintiff's theory being that the atmosphere so pollu-
v. Russell, 36 id. 18; Knox v. Light, 12 id. 86. These ted affected the beer, and rendered it unsalable. Such
cases distinctly announce the rule that the money ten- | theory was however not conclusive, but was open to
dered must at all times be kept in readiness for the proof that other causes, and what affected the sales
creditor, and not used by the debtor,and when pleaded of the beer. Cunningham v. Stein. Opinion by Schol-
at law, it must be brought into court for the creditor. field, J.
It is in this way only that the debtor can escape the ARBITRATION AND AWARD — WHAT AWARD MUST
payment of interest and costs. We have only to turn

SHOW.-Where several distinct matters, not consist. to any book of precedents to find that a plea of tender ing of mere money demands, are submitted to arbimust aver a readiness, at all times after it is made, to

tration, the arbitrators must consider, and by their pay the money, and he must bring in into court. If award finally settle and dispose of all such matters in he uses the money, of course he is not at all times difference, and this must appear from the award itself ready to pay it. In the case of Gyles v. Hall, 2 P.

or it will be void. Tucker v. Page, 69 Ill. 179; BunWms. 378, where a tender was relied on to stop inter- tai v. Curtis, 27 id. 374. But when the controversy est, it was said by the lord chancellor: “But in this relates to cross money demands, whether in suit or case it ought to appear that the mortgagor, from that not, or where in any case the circumstances are such time, always kept the money ready, whereas the con

that the arbitrators will be warranted in requiring the trary thereof being proved, the mortgagor was not

party, who upon the whole appears to be in default, ready to pay it, therefore the interest must run on.

to pay to the other sum of money in gross, it is not This is the rule both at law and in equity, and it is

necessary, nor is it the better practice for the award supported by the principles of justice. Mathison v.

to show upon its face how the result was reached, Wilson, 87 Ill. 51; Carr v. Miner, 92 id. 604; Ventres v.

or in other words, how each item of their respective Cobb, 105 id. 33. Aulger v. Clay. Opinion by demands was disposed of. In such case the awarding Walker, J.

of a gross sum of money will be presumed to be a full WITNESS

PRACTICE ON IMPEACH- adjustment of all matters of differeuce embraced in CLIENT DEALINGS

the submission. Weed v. Ellis, 3 Caines, 253; Baspole's TWEEN.–The proper mode of inquiring into the gen- case, 8 Co. 97 b; Watmough v. Holgate, 2 Vent. 221; eral reputation of a person who has given testimony in Patton v. Baird, 7 Ired. (N. C.) Eq. 255; Blossom v. a cause, for truthfulness, is to ask the impeaching wit- Van Amringe, 63 N. C. 65. Stearns v. Cope. Opinion dess whether he knows such person's general reputa- by Mulkey, J. tion among his neighbors for truth and veracity, and

CONSTITUTIONAL LAW--POLICE POWER-REGULATwhat that reputation ig. In the English courts the

ING AND RESTRAINING TRADE.-The State, through the course is further to inquire whether from such knowl- General Assembly, bas supreme legislative power, exedge the impeaching witness would believe that per- cept so far as it is limited by its Constitution, or such son under oath. 1 Greenl. Ev., $ 461. While this court as has been delegated to the general government, or has adopted the English rule as correct, it has never its exercise has been limited by the Federal Coustituheld, and such is not the law, tbat it is compulsory that tion. The police power of the State, when exercised the opinion of the witness shall be asked or stated. by the Legislature in the passage of laws for the proFrye v. Bank of Illinois, 11 Ill. 367; Eason v. Chap- tection of life, liberty, and property, or laws for the man, 21 id. 34; Massey v. Bank, 104 id. 3:7; see also general welfare, has no limitations or restrictions, exPeople v. Tyler, 35 Cal. 553. (2) The general practice cept such as are found in the Constitution. The fact in the Circuit Courts of this State has been, to leave it that a law regulates trade or any business, or in some optional with the party calling the impeaching wit. degree operates as restraint on the same, does not ness, to ask the opinion of the witness, or vot as be render it obnoxious to any constitutional provision. may think proper; and this practice is correct, and in The Legislature, for the safety, security, and welfare harmony with the curreut of authority upon the ques- of society, may control the acts of the governed even tiou. Dealings between attorney and client will be

as to the time and manner of performing labor, and scrutinized closely, in order to guard against wrong in the manner in which persons shall use their propbeing committed, owing to the confidential relations erty to prevent injury to others. Where a law is existing between them, and the supposed personal in- fouud on the statute books, the presumption is that it fluence of an attorney over his client; but there is no conforms to the Constitution. This presumption rule of law which absolutely prohibits a sale merely arises from the fact that each member of both bouses on account of the existence of the relation of attorney

who pass the law, and the chief executive who has apand client. Hess v. Voss, 52 Ill. 472. A sale of prop- proved it, are under the same obligation to support the erty from a client to an attorney will be sustained, Constitution as are the courts. Having performed all where the transaction is open, honest and fair, and no acts necessary to the adoption of the law, we must undue influence is used. See Alwood v. Mansfield, 59 presume they acted in view of the Constitution and

Laclede Bank v. Keeler. Opinion by all of its limitations. For these reasons the courts Craig, J.

never interfere to declare a law unconstitutional in NUISANCE-EVIDENCE-QUESTION OF DAMAGE.-

.-On case of doubt. To authorize such action by the court, the trial of an action on the case, brought by the

it must be clear the law violates some provision of the owner of a brewery, against the defeudant, the owner

organio law. When therefore a law is challenged as of a starch factory, located near the brewery, to re- unconstitutional, we must be able to turn to the procover damages for polluting the waters of a stream

vision of the instrument which prohibits the Legislathat ran through a part of the plaintiff's premises, by ture from its enactment, and the repugnancy must the flow of slops into the same, and for befouling the clearly appear. These doctrines and constitutional air with unhealthy and unsavory odors, arising from principles are distinctly announced by this court in the using and operating the starch factory, the court the cases of Field v. People, 2 Scam. 79; People v. Saloallowed the plaintiff to be asked, when testifying as a mon, 51 III. 49; People v. Marshall, 1 Gilm. 672; Lane

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V. Doe, 3 Scam. 238; Bruce v. Schuyler, 4 Gilm. the first instance to be a provision and settlement;
221; Mason v. Wait, 4 Scam. 127, and People v. Rey- therefore any antecedent or contemporaneous acts or
nolds, 6 Gilm. 1, and coincide with the decisions of facts may be received, either to rebut or support the
almost if not all courts. The act of June 18, 1883, re- presumption; and any acts or facts so immediately
quiring the operators of butter and cheese factories on after the purchase as to be fairly considered a part of
tbe co-operative plan to give bonds, eto., is not in con- the transaction may be received for the same pur-
travention of section 6, article 2, of the Bill of Rights, pose." In Taylor v. Taylor, 4 Gilm. 303, where a par.
which declares that “the right of the people to be se- ent purchased lands in the names of his two sons, and
ouro in their persons, houses, papers, and effects the question arose whether the purchase was an ad.
against unreasonable searches and seizures, shall be vancement, or whether they held in trust, it was held
inviolate." Such act is but a proper exercise of the that “the presumption of law is, where a father pur-
police power of the State for the protection of persons chases land in the name of his children, unaccompan-
iutrusting their property to the manufacturer from ied by any extraordinary circumstances, that it was
fraud and wrong. A number of cases arising under intended as an advancement; but the presumption
city ordinances have been referred to by counsel as may be rebutted by circumstances." In Cartwright
conclusive that this law is unconstitutional. In none v. Wise, 14 I11. 417, where a parent with his own money
of the cases referred to had the General Assembly, in entered a tract of laud in the name of his son, who
express terms, granted to the municipality the powers was an idiot, this court took stronger grounds in sus-
that were exercised. Such was the case in City of taining the conveyance as an advancement than was
Clinton v. Phillips, 58 III. 102 There the city author- done in the case last cited. In deciding the case it
ized the sale of the liquor, but made it penal to fail to was said: “The question arises whether a father who
make a statement, at designated times, of sales, their purchases land with his own money, and takes the
purposes, the time, and the persons to whom sold. title to his idiot son, can file a bill for a resulting trast,
The case of Toledo, Wabash & Western R. Co. v. City and claim that he did not intend it for the benefit of
of Jacksonville, 67 Ill. 39, was a city ordinance requir: his son, but for his own use. We are prepared to say
ing the useless act of the railroad company keeping a that such a bill cannot be sustained. It must be held
flagman at a crossing where there was no danger to to be an advancement in favor of the child. The pol-
perso118. They are unlike this case. In pone of the icy of the law requires that such an advancement thus
cases referred to was the law intended to protect the made to such a party should be held to be irrevocable
public from wrong and fraud, but the charters of by the father." Maxwell v. Maxwell. Opinion by
those cities only conferred the power to adopt reason- Craig, J.
able ordinances, and it was held they were not such,
and were held inoperative for that reason. Nor had

RAILROAD-FENCING TRACKS-KILLING STOCK.-A the Legislature required that such ordinances should

statute of the State of Indiana gave the owner of stock be adopted. The corporate bodies in those cases were

killed on a railway a right of action against the comonly empowered to pass reasonable ordinances, and pany, without regard to the question whether such they were in those cases held to be unreasonable, and injury was the result of willful misconduct or neglitherefore void. Hawthorn V. People. Opinion by

gence, or the result of unavoidable accident. It was Walker, J.

however provided the act should not apply to any

railroad securely fenced in, and such fence properly CONTRACT--MENTAL CAPACITY-BURDEN OF PROOF

maintained by such company. Although this statuto -EVIDENCE OF IMPROPER RELATIONS NUMBER OF

is general, and contains no exception, it was held in WITNESSES.--(1) Although the mind of an individual

L. and Ind. R. Co. v. Shriner, 6 Ind. 141, the Legislamay be, to some extent, impaired by age or disease,

ture did not intend to authorize railroad companies to still if he be capable of transacting his ordinary busi

inclose streets in a town against the use of the public, dess, if he understand the nature of the business in

and that a literal construction of the statute would which he is engaged, and the effect of what he is do

lead to an absurdity. In that case the animal was ing, and can exercise his will with reference thereto,

killed within the corporate limits of the town of Lahis acts will be valid. Meeker v. Meeker, 75 Ill. 266;

fayette, at a place where the railroad track crossed one Trish v. Newell, 62 id. 196; Pickerell v. Morss, 97 id,

of the streets of the town, and it was ruled it would 220; Lindsey v. Lindsey, 50 id. 79. (2) On bill to set

not have been lawful to erect a fence at that point, aside a conveyance of real estate made by his ward,

and that the want of such fence was not the cause of on the ground of insanity of the grantor and undue

such accident. In the case of Ind. and Cin. R. Co. v. influence of the grantee over him, the burden is upon

Kinney, 8 Ind. 402, it was held under the same statute the complainant to prove one or both of these allega

cited in L. and Ind. R. Co. v. Shriner, a railroad comtions of his bill by a preponderance of evidence, Lilly

pany would not be liable for stock killed or injared at v. Waggoner, 27 Ill. 395; Willemin v. Dunn, 93 id. 511.

a place on their road where a fence ought not to be (3) The fact that a man is not the husband of a woman

erected, unless the injury was negligently or, willfully with whom he is on intimate terms and transacts busi

done, and that an open space in front of a mill standness, but by some were supposed to be man and wife,

ing within fifty feet of the track is such a place. In is not sufficient evidence of illicit or adulterous inter

the case of Iud. and Cin. R. Co. v. Parker,29 Ind. 471, it course between them, or of improper relations. (4) Mere numbers of witnesses alone, testifying to a state apply to injuries done at a point

where it would be il

was held, as in the other cases cited, the statute did not of facts, or as to the mental capacity of another to

legal or improper for the railroad company to mainmake a rational contract, will not control, where the

tain fences, such as road and street crossings, but that less number are more intelligent, more reliable, or in

it was not every place within the corporate limits of a any material respect superior as witnesses to the

town or city that is within the exception. The excepothers. English v. Porter. Opinion by Scholfield, J.

tion allowed would be as to places where it would be ADVANCEMENT--PRESUMPTIONS AS TO.-The general improper to fence the track, whether within or withrule is, that a purchase of land by a parent in the name out the corporate limits of cities or villages. In conof a child, or of a husband in the name of the wife, is struing their own statute on the same subject, and presumed to be an advancement and not a trust. which is not unlike the Indiana statute, in F. and P, Perry on Trusts, $ 147, says: “Whether a purchase in M. R. Co. v. Lull, 28 Mich. 510, the court thought the the name of a wife or child is an advancement or not rule established by the case last cited was a satisfao• is a question of pure intention, though presumed in

tory one, that it expressed the limits of the exceptions

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arising under the statute accurately, and a track Reed v. Randall, 29 N. Y. 358; Gaylord v. Allen, 53 id.
within the corporate limits of a city or town, at a 515; Dounce v. Pow, 64 id. 411; Gilson v. Bingbam,
point where no reason arising from publio necessity 43 Vt. 410; Allison v. Vaughn, 40 sowa. 421. But it is
existed for keeping it open, was as much within the equally well settled in this State that where there has
statute as a track elsewhere. It seems the courts of been a warranty of the quality of the goods, and a
Missouri and Iowa have followed closely the rule es- failure of such warranty, the vendeo may retain the
tablished by the cases ut supra, in construing similar property and sue on the warranty. Aultman v.
statutes on the same subject. Lloyd y. Pacific R. Co., Theirer, 34 Iowa, 272; Rogers v. Hadson, 35 id. 283;
49 Mo. 199; Davis v. B. and M. R. Co., 26 Lowa, 549; McCormick v. Dunville, 36 id. 645; King v. Towsley,
Cleaveland v. C. and N. W. R. Co., 35 id. 220. It is 19 N. W. Rep. 859. The rule established by the de.
seen it is held by these courts, that notwithstanding cided weight of authority, both in England and this
the statute makes railroad corporations liable for in- country, is that rescission of a divisible contract will
juries done to stock unless their tracks are inclosed not be allowed for a breach thereof, unless such breach
with suitable fences, yet they are not bound to fence goes to the whole of the consideration. Freeth v.
their tracks at places where it would be improper to Burr, L. R., 9 C. P. 208; Mersey Steel & Iron Works v.
do so on account of the great publio inconvenience it Naylor, L. R., 9 Q. B. Div. 648; Simpson v. Crippin, L.
would occasion, and hence are not liable because of R., 8 Q. B. 14; Newton v. Winchester, 16 Gray, 208;
the omission, unless guilty of negligence or willful Winchester v. Newton, 2 Allen, 492; Sawyer y. Rail-
misconduct in regard to the accident that caused the way Co., 22 Wis. 403; Burge v. Cedar Rapids & M. R.
injury. The reason for the rule adopted in such cases Co., 32 Iowa, 101; Hayden v. Reynolds, 54 id. 157; S.
is well stated in People v. Davenport, 91 N. 1. 574, C., 6 N. W. Rep. 180. See also the collection of au-
where it is said, a "principle of construction of uni- thorities in the note to Norrington v. Wright, 21 Am.
versal authority is that which requires the court to Law Reg. 395. Neyer v. Wheeler. Opinion by
limit and restrict the operation of a statute, when its Reed, J.
lauguage, if applied in its literal sense, would lead to [Decided Dec. 11, 1884.]
an absurdity or manifest injustice.'

". The same rule

SLANDER— CHARGE OF CRIME JUSTIFICATION of construction had been previously adopted by this

PROOF BEYOND A REASONABLE DOUBT.-In an action court in Perry County v. Jefferson County, 94 Ill. 218.

of slander for charging plaintiff with the commission On the other hand the law is equally well settled that

of a crime, when the defendant justifies be need not where no reason arising from public pecessity exists

establish beyond a reasonable doubt that the plaintiff for keeping it open at any given point, whether within

committed the crime in manner and form as pleaded. or without the corporate limits of a city or village, all

The court instructed the jury that the defendant must railroad corporations must conform to the statute,

established beyond a reasonable doubt that the plaintand fence their tracks, or answer for damages that

iff did commit the crime of larceny in manner and may result from the omission of that duty. C., M. &

form as the defendant had pleaded. This instruction St. P. R. Co. v. Dumser. Opinion by Scott, J.

is in accord with Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; Fountain v.

West, 23 id. 9; Ellis v. Lindley, 38 id. 461. Logically IOWA SUPREME COURT ABSTRACT.

these cases were much shaken by Welch v. Jugen

heimer, 56 Iowa, 11. It is logically impossible to say SALE-WARRANTY OF QUALITY - SEVERABLE CON

that one rule should obtain when an action is brought TRACT-RIGHT TO RESCIND.--D. offered to sell W. &

to recover damages caused by the commission of the Co. 10 car-loads of barley like a sample sent him, for crime of argon, and another in an action brought to 70 cents per bushel. W. telegraphed and wrote D.

recover damages for slander charging such crime, and that they would take 10 car-loads like the sample

when the defendant pleads justification. If an action named, and D. answered that he would "turn out the

had been brought to recover the value of the wood al10 cars as fast as possible.” One car-load was deliv, leged to have been stolen in this case, the plaintiff in ered, aud D. drew for the price thereof; but as it did

the action would be entitled to recover if he estabnot come up to the sample in quality, W. & Co.

lished the fact that the wood had been stolen by a refused to pay the draft, but retained the barley, and preponderance of the evidence. Logically the same informed D. that they had given him credit for the

rule must apply when the same party asserts and revalue of the barley, which was five cents less than the lies ou the same facts in any other civil action where agreed price, and would retain the amount until the

the right of recovery or defense is asserted. Bradley other nine car-loads were delivered; but that D. might

v. Kennedy, 2 G. Greene, 231; Forsheo v. Abrams, 2 draw on them against future shipments. D. insisted

Iowa, 571; Fountain v. West, 23 id. 9; and Ellis v. upon payment for the load delivered, and refused to

Lindley, 38 id. 461, overruled. Riley v. Norton. Opiusend more barley until payment was made, but offered

ion by Seevers, J. [48 Am. Rep. 673; 7 Abb. N. C. 357. to deliver the balance if payment was made. No-ED.] more barley was delivered, and D. sued for the price [Decided Deo. 9, 1884.) of the one car-load. Held, (1) that there was an express warranty that the barley to be delivered should

SALE-WARRANTY - ELECTION OF VENDEE TO REbe equal to the sample, for the breach of which W. &

SCIND-DAMAGES.-The vendee of personal property Co. were entitled to damages; and (2) that the con

which has been sold with warranty as to its quality, on tract was severable, and the failure to pay for the car

the failure of the warranty has the election to rescind load delivered was not a rescission thereof, and did

the contract by returning the property and recovering pot entitle D. to rescind it, and that W. & Co. were

back the money received by the vendor, or to retain entitled to damages for Di's failure to deliver the re- the property and sue for the damages sustained in conmaining car-loads. Defendants having been induced sequence of the failure. Aultman v. Theirer, 34 Iowa, to enter into the contract, and the delivery of the car

272; Rogers v. Hanson, 35 id. 283; McCormick v. Dunload in question having been made, plaintiffs must be ville, 36 id. 645. Defendant elected to pursue the latheld to have warranted that the grain corresponded

ter course. He retained the property, and at the time in quality with the sample. If there had been no war

of the trial had it in his possession. His answer then ranty of the property, defendants, if they elected to was in the nature of a counter-claim for the damages keep it, would have been bound to pay the contract

which he sustained in consequence of the failure of the price. This is the well-settled rule in such cases. See warranty. His claim, it is true, was against the ven

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dor of the property, but he alleged that plaintiff took CONTRACTOR.-Section 3314, Rey. Stat. 1878, authorizthe notes subject to his counter-claim, and he sought ing a mechanio's lien, does not exteud to a building or to set off the amount of his damages against the notes machinery placed in a building constituting a part of in its hands. The burden was on him to establish the the water-works of a municipal corporation. The pubamount of damages which he sustained in consequence lic inconvenience which would result from having of the failure of the warranty, and this he has not such machinery removed is too obvious and grave to done. The measure of his damages is the difference require any discussion. The comfort, health, safety between the value of the property as it actually was, and property of the citizens would be greatly endanand what its value would have been had it been as gered by allowing the facilities for procuring water to warranted. Pitsinowsky v. Beardsley, 37 Iowa, 9; be suspended, even for a short period. In view of the McCormick v. Vanatta, 43 id. 389. J. J. Case Thresh- serious consequences which would result by allowing ing Machine Co. v. Haven. Opinion by Reed, J. the lien to attach to machinery thus used, and which [Decided Dec. 10, 1884.]

more than countervail any private advantage, we are

inclined to hold that the provision does not apply in CONTRACT-PUBLIC POLICY – AGREEMENT NOT TO

the case before us. True the city has paid into the UPHOLD WILL.-An oral contract entered into by an

court the price of the boilers; but suppose it had not heir and the father and grandfather of an infant lega- doue so; if the lien is given they might be removed. tee, providing that the heir shall pay the amount of

Consequently on grounds of public necessity and conthe legacy if the others would not do any thing to up

venience, we must hold that the lien did not attach. hold the will, and so defeat provisions made for other

The case stands upon the same ground as where matelegatees, is without consideration, contrary to public

rial is furnished for a county court house, jail, public policy, and void. Gray v. McReynolds. Opinion by

school building, or other public building, which are Rothrock, C. J. [See 30 Am. Rep. 383.]

held to be exempt from the operation of mechanic's [Decided Dec. 13, 1884.]

'ien laws. See Phil. Mech. Lien, $ 179, and cases cited VENDOR AND VENDEE-LIEN OF VENDOR-PRIOR- in the notes; also Leonard v. City of Brooklyn, 71 N.

OF JUDGMENT. Whether a judgment lien Y. 498; 27 Am. Rep. 83; Board Com’rs v. Norrington, takes precedence of a vendor's lien, where the 82 Iud. 190; Board Com’rs v. O'Conner, 86 id. 531. Iu judgment creditors have taken judgment in igno- Burnham v. City of Fond du Lac, 15 Wis. 193; Buffrance of the vendor's lien, appears to be an open ham v. City of Racine, 26 Wis. 449; Merrell v. Campone in this State. It was held in Allen v. Loring, bell, 49 id. 535, it was held that a municipal corpora34 Iowa, 499, that the lien of an attachment takes pre- tion was not subject to the ordinary process of garcedence of a vendor's lien, where the attaching credi- nishment. In 1873 the Legislature enacted chapter 150, tor acquired his lien without notice of the vendor's which is very nearly the same as section 3328, Rev. St. lien; and Gilman v. Dingeman, 49 Iowa, 311, there is This section gives the subcontractor who has done an intimation that the same rule would apply in favor work or furnished material to any principal contractor of the holder of a judgment lien. In Porter v. City of for the construction and repair of any building or maDubuque, 20 Iowa, 442, it was said: “The right to a chinery for any county, town, city, village or school. lien in favor of a vendor, upon real estate sold to a district an action therefor against such principal con. vendee, is not based upon contract, nor is it properly tractor, and such county, town, city, etc., jointly for au equitable mortgage; neither can it be regarded as the recovery thereof. “But no judgment shall be a trust resulting to the vendor by reason of the ven- rendered against any defendant therein other than dee holding the estate with the purchase-money un- such principal contractor, for any amount greater than paid. It is a simple equity raised and administered by the amount due from it to such principal contractor courts of chancery." In Allen v. Loring the court, in at the time of the commencement of such action." On speaking of the vendor's lien, says: “It is never al- rendition of judgment in such action against the lowed to override or take priority of equities or rights principal contractor, the court may also render judge of third persons which have attached in ignorance of ment against the county, town,city, etc., for the amount such vendor's lien." Iu 3 Pom. Eq. Jur., $ 1253, the due from it to the principal contractor, when the author says: “Whether the grantor's lien is or is not suit was commenced, to a sufficient amount superior to that of subsequent judgments recovered to pay the judgment recovered against the prinagainst the grantee, is a question upon which the cipal contractor, and payment thereof shall disAmerican decisions are in direct conflict. On princi-charge its indebtedness to such principal contracple however, and especially when considered in con- tor for the amount paid. In Klaus v. City of Green nection with the universal system of registry, it seems Bay, 34 Wis. 629, the remedy thus given was cousid. to me clear that the subsequent judgment liens are ered to be in the nature of a garnishment proceeding entitled to precedence." See also Johnson v. Caw. against the political corporation or municipality, thorn, 1 Dov. & B. 32; Roberts v. Rose, 2 Humph. 145; where it could discharge its indebtedness to the pridGann v. Chester, 5 Yerg. 205; Gilmau v. Brown, 1 cipal contractor by paying the subcontractor the Mason, 192. While we do not regard the question pre- amount due him from such principal contractor. But sented as entirely free from doubt, we have to say the subcontractor is expressly limited in his recovery that we thiuk that the rule which subordinates a ven- to the amount due from the municipal corporation to dor's liop to a judgment lien acquired without notice the principal contractor when the suit was comis the better rule. A person who has a claim upon two menced. In this case the court finds that the city of funds as security cannot be required to exhaust one in Madison was not indebted to the Libbeys at the time preference to the other, except where it can be done of the commencement of this action. The correctness without injustice to him. Clarke v. Bancroft, 13 of this finding is not questioned; therefore there could Io wa, 320. Cutler v. Ammon. Opinion by Adams, J. not be any recovery against the city in this case. Ra[Decided Dec. 9, 1884.]

duenz v. School Dist., 42 Wis. 397. 'Wilkinson v. Hof

Opinion by Cole, C. J. [See 37 Am. Rep. 189;


[Decided Dec. 16, 1884.]


son.-Where a father executes a deed of conveyance WORKS-PRIORITY-SUBCONTRACTOR AND SURETY OF of his real estate, and a bill of sale of his personal



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property, to one of his sons, upon condition that the have full power and discretion in grading or filling up
son should give him one-half of the buildings and one- their streets, and need make no provision for carrying
half of the crops during the lives of himself and wife, | off the surface water of adjoining lands, or against its
and whoever should first die, one-third of the crops back.flow upon such lands (Lynch v. Mayor, etc., 76
to the survivor, and pay to his other son and daughter N. Y. 60), and when it has made such provision by a
certain sums of money after his decease, aud also to sewer or a drain it may discontinue or abandon the
liquidate a mortgage on the land, such conveyance same if such owners are left in no worse condition
and transfer of his property is a trust for his use, and thau they would have been if such sewer or drain had
is void under the statute of frauds (Rev. St., $ 2306) as never been made. City of Atchison v. Challiss, Kan.
against existing or subsequent creditors, and the fact 603. The authorities cited by the learned counsel of
that the son had previously made advances of consid- the appellant are cases of nuisapoe and condemnation.
erable sums of money to the father, does not change This is peither. The injury is caused by the occa-
the character of the conveyance or strengthen his title sional raius and melting snows, which create tempo-
to the property as against such creditors. Disregard-rary surface water, and the plaintiff's land is in no
ing mere form, and looking only to the substance of sense taken for public use. This is the vital and only
the transaction, as it is our plain duty to do, the con- question in this case, and as we bave seen, the injury
veyance of his property by the intestate to the defeud by the back flow of mere surface water, however
ant created a trust in the property conveyed for the caused, by the reasonable improvement or use of the
support and maintenance of the intestate and his wife land below by the owner thereof is without remedy.
during their lives, or during the life of either of them, The principle is as well established by reason as by the
and for the payment of specified sums of money after decisions of this and other courts, and may not be
their decease to their other children. True, the con- | yielded or compromised to meet seeming cases of hard-
dition expressed in the conveyance is not, in form, for ship. Waters v. Village of Bay V'ieu. Opinion by
such maintenance, but that is its plain and obvious | Orton, J.
import. Had the defendant failed to furnish the in- [Decided Deo. 16, 1884.]
testate and his wife the stipulated buildings, and to
deliver to them the stipulated proportion of the crops
raised on the farm, thus depriving them of the means

of subsistence, a court of equity would promptly have
the inded the conveyance

and restored the property to IT s strange that although some of the jokes at the ban v. Bresnahan, 46 id. 385; Bishop v. Aldrich, 48 id. the attention of few outside of Massachu621; Blake v. Blake, 56 id. 392; Delong v. Delong, id. setts has been called to the speech then made by 514. Severin v. Rueckerick. Opinion by Lyon, J. Judge Oliver Wendell Holmes, Jr., which we publish [Decided Deo. 16, 1884.]

for the benefit of our readers. It is refreshing in these

days when the practice of the law is viewed by 80 MUNICIPAL CORPORATION-SURFACE WATER-DAM- many, not only of the laity, but even members of the NUM ABSQUE INJURIA.-Where the owner of land suf- bar, simply as a means of bread-winning, with no fers iujury from the flow of surface water caused by higher aims and ethios than those of the traders in an improvement of the street, but the land is too re

stocks and land; and when we seem to have yielded mote to entitle the owner to compensation for land without a struggle to the players that distinctive title taken for public use, the injury is consequential only, of the profession of which our predecessore were so and it has been too often decided by this court that proud to read the words of one who, after reaching buch an injury is damnum absque injuria to be an open

eminence in the theory, the history and the adminisquestion, and such are the decisions elsewhere, where tration of justice between man and man, still regards the common-law rule prevails. “According to that his calling with the same passion that the painter feels rule no natural easement or servitude exists in favor for his art. Even a layman should be pleased and inof the owner of the higher ground for the flow of mere

terested by this outburst of Elizabethan English in our surface water over the lower estate, but the owner of prosaic age over what too many, even of its students the latter may detain or divert the same without ren

consider a dry aud technical branch of learning. dering himself liable in damage therefor.” “An owner “ The court and the bar are too old acquaintances to has the right to obstruct and hinder the flow of mere speak much to each other of themselves or of their surface water upon his land from the land of other mutual relations. I hope I may say we are too old proprietors, and he may even turn the same back upon friends to need to do it. If you did not believe it alor on to the land of his neighbor, without incurring ready, it would be useless for me to affirm that in the liability for injuries caused by such obstructions." judges' half of our common work the will at least is "Mere surface water, which is supplied by rains or melt- not wanting to do every duty of their noble office; that ing snow flowing in a hollow or ravine on the land is every interest, every faculty, every energy, almost not a water-course.” O'Connor v. Fond du Lac, A. & P. every waking hour is filled with their work; that they Ry. Co.,52 Wis. 526. In that case the chief justice re- give their lives to it, more than which they cannot do. views the previous decisions of this court on that ques. But if not of the bench, shall I speak of the bar? Shall tion, and no difference is made between the case of a I ask what a court would be, uuaided? The law is railroad company grading its track and a municipal made by the bar, even more than by the bench; yet corporation grading its streets so far as mere surface do I need to speak of the learning and varied gifts that water is concerned; aud Hoyt v. City of Hudson, 27 bave given the bar of this State a reputation throughWis. 656, which is directly in point, is cited, as well out the whole domain of the common law? I think I as Pettigrew v. Village of Evansville, 25 Wis. 223 ; need not-nor of its high and scrupulous honor. The Fryer v. Warne, 29 id. 511; and Eulrich v. Richter, 37 world has its fling at lawyers sometimes, but its very id. 226. Whether this is mere surface water and not a denial is an admission. It feels what I believe to be water-course is a question of fact which the jury de- the truth, that of all secular professions this has the termined against the plaintiff, and there is nothing highest standards. which would even imply that the flow of such surface And what a profession it is! No doubt every thing water was so great or constant as to be so near a water- is interesting when it is understood and seen in its course as to be an exception to the rule, which some

connection with the rest of things. Every calling is authorities seem to recognize. Municipal corporatious great when greatly pursued. But what other gives

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