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not agree with me that the lawyers of En- there were no means of lessening this expense and glish speaking countries are indebted to Mr. Gilbert trouble. I expect to show however that all the useful for the insight he has given them into the laws of purposes of notices of lis pendens in foreclosure cases Japan? And if these laws can be so interestingly might be accomplished with very much less expense stated, why should not writers on English and Ameri- and trouble. can law endeavor to adopt Mr. Gilbert's charming lit- What does a lis pendens in foreclosure effect? erary style? How interesting the study of law would 1. It fixes the time from which all subsequent purthen become !

chasers and incumbrancers of the mortgaged property GUSTAV KOBBE.

are bound by the decree, whether parties to the action

or not. CORRESPONDENCE.

2. It gives constructive notice to all persons who may contemplate acquiring an interest in or lien upon the

mortgaged premises that an action has been comLOST WILLS.

menced, the consequence of which is that if it is still Editor of the Albany Law Journal :

in progress the burden of the mortgage is increased by As you are publishing some articles on the subject of a bill of costs; if it is concluded the equity of redemplost 'wills, a case to appear in the 57 Vt. may be of tion is cut off. interest. A testator gave by will his real estate to A. Now the time of commencing an action with referand B., his two children and only heirs, and $600 to ence to determining the proper and necessary parties three other persons, who were not heirs, and made the can be just as well fixed by filing the complaint as by $600 a charge on the land given to. B. The will was the lis pendens. So nothing more need be said on that contested, but was established by the Probate Court; point. and B. appealed to the County Court. Just before If the exact time of filing a complaint for foretrial the two heirs, being the only parties in court, en- closure is noted upon it and in the clerk's register, and tered into an agreement by which judgment should be a reference to the complaint is made in the margin of rendered disallowing the will, and that they would the mortgage, all the purposes of the lis pendens will then divide the property between themselves.

be accomplished, and in a much better way. It would Accordingly judgment was rendered disallowing the only be necessary, in order to abolish lis pendens in will, and this was certified back to the Probate Court, foreclosure cases, to provide by law that if the comand affirmed; and A. and B. divided the estate be- plaint is filed in the office in which the mortgage is retween them, wholly ignoring the other legatees, who corded, the clerk shall forthwith note in the margin of were minors and unrepresented. B. holding posses- the latter a reference to the former. If in another ofsiou of the land, two of the minors having become of fice the plaintiff's attorney should be required to file a age, and a guardian appointed for the third, a bill in notice of the filing of the complaivt in the office where equity was brought to charge the $600 on B.'s land. the mortgage is recorded at least twenty days before Held, that although by statute all wills are to be judgment is entered. Such a notice need not be reproved and allowed by the Probate Court, the Court corded or indexed, but from it a reference to the comof Chancery had jurisdiction; and that the $500 should plaint may be made in the margin of the record of the be made a charge on the real estate received by B.; mortgage. and this on the ground that the transaction was fraud. In brief, my suggestion is to substitute for the lis ulent. The court say: "As between the parties to this pendens a reference in the margin of the mortgage to cause, the will may well be considered as proved in the complaint. This would do away with an enormous the Probate Court, and the appeal vitiated by the mass of useless writing. It would reduce thenceforth fraud."

the records and indices of lis pendens to one-tenth of Without examining the authorities, it seems to me their present dimensions, and very greatly facilitate that the facts in this case are somewhat novel, and you the examination of them. It would be a public benemay think the above worth publishing.

fit, but as it would involve some loss to county clerks Yours truly,

and their subordinates, of course there would be a EDWIN F. PALMER, fierce opposition to the adoption of any such reform. [Reporter of the Vermont Supreme Court.- ED.)

Actions for special performanoe of recorded contracts WATERBURY, Vt., May 17, 1885.

to convey real estate might be governed by the same rule. In short, whenever an action is brought to obtain, perfect, or secure a right, which a party claims

by virtue of an instrumeut of record, a reference to LIS PENDENS IN FORECLOSURE SUITS.

the complaint, in the margin of the record, should Editor of the Albany Law Journal :

answer the purpose of a lis pendens. Any attorney who has examined titles to real estate

SAMUEL HUNTINGTON. in New York city must have observed the enormous

NEW YORK, May 22, 1886. number of notices of the pendency of actions in the county clerk's office. There is a room full of them, and the number is increasing with great rapidity. It

NOTES. is a common thing for scores of them to be returned on a search, and the number sometimes runs up into For legal information and grammar the Tribune the hundreds. An attorney is required sometimes to "takes the cake.” It recently informed its readers spend days in examining these notices, uinety-nine that the Lord High Chancellor has compelled a man per cent of which relate to foreclosure cases, and have to pay for an injury to another man's broken head, nothing to do with the title he is investigating. The caused by stumbling over a matting spread across the nuisance is only appreciated by those who have per- sidewalk in front of the defendant's residence on some sonally experienced it. I suppose the same state of festive occasion. His Lordship was probably holding things exists proportionately in the other counties of circuit for some common-law friend.

And the the State. Of course the expense of recording, binding, Tribune makes “ Mr. Cleveland " hold two offices at indexing and preserving all these notices is great, but once. It says: “As the chief-justice of a territory, it would have to be endured, and the lawyers would he selects the most conspicuous law-breaker and lawhave to submit to the drudgery of examining them if defier of that territory."

The Albany Law Journal.

7 there were 110 means of lessening this expere es si trouble. I expect to show howerer tbat all the vastu of purposes of notices of lis penilens in forelssure che Ey might be accomplished with very much less eleita - and trouble.

What does a lis pendens in foreclosure effet?
od 1. It fixes the time from which all subsetzat per:

chasers and incumbrancers of the monipsei
are bound by the decree, whether parties to the nation
or not.

2. It gives constructive notice to all person retabas contemplate acquiring an interest in or list at the mortgaged premises that an action has been ne menced, the consequence of which is that if the se

in progress the burden of the mortgage is increased of a bill of costs; if it is concluded the equity of redz of tion is cut off. 4. Now the time of commencing an action with the

ence to determining the proper and necessari perde can be just as well fixed by filing the complain! the lis pendens. So nothing more need be said a'i.

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II the exact time of filing a complaint fr fat

closure is noted upon it and in the clerk's rexist., ne DA

a reference to the complaint is made in the mids uld | the mortgage, all the purposes of the lis joiden tu

be accomplished, and in a much better way. Ibrah be | only be necessary, in order to abolish lis pemi rt. | foreclosure cases, to provide by law that if the ti

bine plaint is filed in the office ju which the mortgasts ho corded, the clerk shall forthwith note in the latt

the latter a reference to the former. If in about a of tice the plaintiff's attorney should be required

in notice of the filing of the complaint in the otisa mer d. the mortgage is recorded at least twenty dari batang be judgment is entered. Such a notice need not be con

corded or iudexed, but from it a referener man the one la plaint may be made in the margin of the record dat

mortgage. d.

In briel, my suggestion is to substitute for the la is peridens a reference in the margin of the DTTEI

the complaint. This would do away with na eni mass of useless writing. It would reduce thencedera the records and indices of lis prndens to mietect : their present dimensions, and very greatis faci.com the examination of them. It would be a pubire bele fit, but as it would involve some loss to colapdai aud their subordinates, of course there weakt) tierce opposition to the adoption of auf such reira

Actions for special performance of recorteil on

* Lord Coleridge - If a person puts any thing across the pavement and a person stumbles over it;

the owner is liable for the consequences. The pasALBANY, JUNE 6, 1885.

senger is not bound to look for mats on the highway. He may look at the stars if he likes.

Mr. McIntyre - He may run his 'head against a CURRENT TOPICS.

lamp-post. E once warned our judges of the Court of Ap

Lord Coleridge - The lamp-post is rightfully peals of the dangers of riding to court on

there, but any one who has a mat or carpet spread horseback. We are glad to see that our warnings

over the pavement must take care of it. took effect; that going to Saratoga on horse back has

Mr. McIntyre - The passenger may be guilty of been discontinued. But yet the practice produced

contributory negligence. its legitimate result in the threatened degradation of

Lord Coleridge – Possibly, but he is not bound Judge Andrews to the governorship of this State.

to look for mats on the pavement, and his not lookThe judge has had the self-respect to deny the im- ing for them is no evidence of negligence. Probably peachment. And now there reaches us from Pennsyl-") there was light enough for him to see the mat if he vania the rumor of a more fearful danger. One of the

looked for it, but he was not bound to look for it; newspapers has a column filled with a report of the

he may look at the stars if he pleases — if he can intended summer-retreats of members of the Phila

see them.' ” But no one can see the stars in London, delphia bar, and an account of the horses and car

off the stage, even if he can see the lamp-posts, riages thereof — "equipages,” it calls them. This is by reason of the fog. And if he could, and should more anti-Democratic than gowns. Nothing so hu

stumble over one of those wedding carpets, he miliating has threatened our institutions in many a

would verify the poet's assertion: “ The undevout day. What a fall from the simple and sinless time

astronomer is mad."
when Thomas Jefferson tied that historic fence to
his nag on Capitol Hill on inauguration-day! It may

And still they come.

" The Texas Court Reporter” be permitted a lawyer to ride in a Brougham, per:

is the name of the last-born legal periodical. It is haps—there seems a happy appropriateness in that,

a well printed octavo, of 64 pages, and is published but to think of a lawyer in (or on) a “ four-in-band,"

at Austin. It answers its title strictly, being taken attended by outriders, tigers, and the like, fills us with

up with reports of Texas cases. These appear to be distrust and dismay. How can such a lawyer hope

well reported. We welcome the new-comer to what to get. clients ? unless indeed, on the principle

cheer there is afforded. We only hope that Texas adopted by Commodere Vanderbilt in hiring railway reporting will not be overdone as the West Coast conductors for an obvious reason he preferred reporting is. Not that we have any objection to those who were already provided with fast horses,

the success of all. But we know from observation gold watches, and the like. Our code-opponents of

that so much journalizing in one locality can butthe New York City Bar Association will join with

prove the truth of the adage of Solomon us, we are sure, in frowning down this dangerous other wise man -- that “ riches have wings," and innovation. They cannot in decency print any more

next to fancy farming, legal publishing is the most pamphlets against the code - now why not appoint have and support one legal journal

. To expect or

certain Icarian device. Every locality ought to a committee to denounce this horse display? Mr. Carter, we infer, must be opposed to any thing only we could induce the new fledged lawyers to

ask for more is to put one's trust in princes. If drawn by more than one beast. Let us all draw our own conveyances.

save the expense of their "banquets" and invest it

in a good legal journal, even the new journals Here is bad news from London for heedless young might be prosperous. Prof. Dwight's last class of people intending to be married in church, and care

one hundred and thirty-one, and that of the Uniless old people giving house parties. The Canada versity of New York of thirty-one, and that of Legal Neus says: “ The practice of laying carpets or

Albany of some fifty, would make up a highly repieces of matting in front of houses in which enter

spectable if not too numerous roll. Never mind, tainments are being given has come under judicial brethren; there are good times ahead, for this year, notice in three recent cases tried before Lord Chief

at least, for we are not to have general codification Justice Coleridge in London. In De Tyron v. War

at present. ing, the latest of the three suits, the defendant, having an entertainment at his house in Grosvenor It is highly important just now to know what Square, had spread a matting across the sidewalk “vacation " is, and get the judges of Illinois have for the benefit of his guests. The plaintiff while been disagreeing about it. One judge dissenting, passing by tripped in the matting and fell down. they hold, in Conkling v. Ridgley, 112 Ill. 36, that He alleged injuries, sued for damages and obtained where the Circuit Court adjourned over for thirtya verdict for $300. The following colloquy, which two days, the period in which the court did not sit took place between the chief justice and the coun- and do business was “vacation,” but it did not emsel for the defendant, sums up the law on the sub- brace all the time the court was not actually in sesject:

sion, or the time of adjournments from day. This Vol. 31 - No. 23.

- or some

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to convey real estate might be governed by the story rule. In short, whenever an action is brought to a taiu, perfect, or secure a right, which a party by virtue of an instrument of record, a referensi the complaint, in the margiu of the record, answer the purpose of a lis pendens

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was held as to entering judgment by confession in but this does not so clearly appear. It is true that “ vacation." The court disregard the common-law custom and usage are not permitted to have effect definition "all the time between the end of one when they contravene any established rule of law. term and the beginning of another," and conclude 2 Greenl. on Ev., $ 249. And that usage cannot that recess is vacation. This will not be concurred alter the law. Thompson v. Riggs, 5 Wall. 663, 980. in by our school-boys.

And further, that 'a clear, certain and distinct con

tract is not subject to modification by proof of cusAmericans have contributed a bust of the poet

tom. Such a contract disposes of all customs and Coleridge to Westminster Abbey, Mr. Lowell practices by its own terms, and by its terms alone making the presentation address, and Lord Cole

is the conduct of the parties to be regulated and ridge responding for the family. His lordship’s their liability to be determined.' Simmons v. Law, remarks were characterized by an excess of modesty,

3 Keyes, 217. It is true also that usage is admisfor every one will recognize the propriety of choos

sible to explain an ambiguity, but it is never reing so distingnished a member of a family char-ceived to contradict what is plain in a written acterized by genius, and so elegant and liberal a

contract, although this is a repetition in another man of letters, to receive the memorial. Americans

form of the doctrine already expressed. Collender have also given a window to the new Shakespeare

v. Dinsmore, 55 N. Y. 200; S. C., 14 Am. Rep. 224; memorial building at Stratford on Avon, and the

Barnard v. Kellogg, 10 Wall, 383, 391 ; Bradley v. librarian calls for contributions of American

Wheeler. 44 N. Y. 495; Walls v. Bailey, 49 id. 464; Shakespearian literature to the library. American

S. C., 10 Am. Rep.407; Wheeler v. Newbould, 16 N. Y. lawyers ought to be well represented there — Judge

392. But these rules are uot applicable to the transHolmes, who is as skeptical of Shakespeare as Mrs.

action in question, for the reason that the contract Prig was in regard to the existence of Mr.

is not expressed in the instrument by wbich the Gamp's Mrs. Harris; Mr. Appleton Morgan, deposit was made. It is a direction to the People's who is of the way of thinking, we

Bank to pay to the defendant a certain sum of money believe, although president of a new Shakes

whether for the benefit of the holder or the drawer peare society in the city of New York; Mr.

does not appear from the contract itself, although Heard and Judge Davis who have written on

as already suggested, the fair inference is that it was Shakespeare's legal acquirements; and Mr. Cowen,

intended as a transfer from one depository to another, who has impugned the law of Shylock v. Antonio

and although the purpose of such transfer, it must these should all immortalize themselves by contrib

be conceded, was not expressed and does not appear uting their researches.

inferentially or otherwise. The transaction is however converted into a well-understood contract by

force of the usage, if it existed as asserted by the The following is a summary statement of the busi- defendant, for the reason that the presenter has the ness of the Supreme Court of the United States for right under its efficacy to require the application of the October Term, 1884, which closed on May 4th. it as he desires. The language employed in the Number of cases on the docket at the close of Oc

case of Wells v. Bailey, supra, elucidates and contober Term, 1883, not disposed of, 845; number of trols. It is there said “every legal contract is to be cases docketed during October Term, 1884, 470; interpreted in accordance with the intention of the total, 1,315. Number of cases disposed of at the parties making it.' A usage (with a limitation term jnst closed, 464; number of cases remaining hereafter noticed), when it is reasonable

, uniform, undisposed of, 861; total, 1,315. Number of cases

well settled, not in opposition to fixed rules of law, continued under advisement from October Term, and not a contradiction of the express terms of the 1883, 10; number of cases argued orally, 196; contract, is deemed to form a part of the contract, number of cases submitted, 119; number of cases and to enter into the intention of the parties. continued, 16; number of cases passed, 8; total, Parties are held to contract in reference to the law 349. Number of cases affirmed, 199; reversed, 97; of the State in which they reside, for all men being dismissed, 39; docketed and dismissed, 27; ques- bound to know the law are presumed to contract in tions answered, 2; settled and dismissed, etc., by reference to it. And so they are presumed to conthe parties, 85; dismissed in vacation, under 28th tract in reference to the usage of the particular place rule, 15; total, 464. Number of opinions deliv

or trade, in or as to which they enter into an agreeered, 272.

ment, when it is so far establisbed and so far known

to the parties that it must be supposed that their NOTES OF CASES.

contract was made in reference to it. Applying

these principles it must be assumed that Dr. Sims N Șims v. United States Trust Co., 35 Hun, 533, it knew when he gave Mr. Crowell the check, there was held that evidence of a custom of bank and

being no restrictive indorsement, that the latter had trust companies to accept checks to their own or- the right to direct the application of it in such way der, and not restricted as cash, was admissible. The as he thought proper. The usage embraced this court said: “It is contended by the learned counsel right and authorized him to demand its recognition for the plaintiff that this custom overrides the law, by the defendant.”

IN

THE ALBANY LAW JOURNAL.

443

in but this does not so clearly appear

. It is true ties w custom and usage are not permitted to bare etas ne when they contravene any established rule of law, de 12 Greenl. on Ev., $ 249. And that enge ekam ed alter the law. Thompson v. Riggs, 5 Wall 62, Ne

And further, that a clear, certain and distinct es tract is not subject to modification bş proof el ru

tom. Such a contract disposes of all customs et
wat
---ll practices by its own terms, and by its terms ale

is the conduct of the parties to be regulatie
their liability to be determined.' Simmons r. La
8 Keyes, 217. It is true also that usage is sin
sible to explain an ambiguity, but it is neces
ceived to contradict what is plain in s tem
contract, although this is a repetition in
form of the doctrine already expressed

. Cause ans

v. Dinsmore, 55 N. Y. 200; S.C., 14 Am. Rep. the

Barnard v. Kellogg, 10 Wall, 383, 391; Brader
Whecier. 44 N. Y. 495; Walls v. Bailey

, 49 il

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8. C.,10 Am. Rep.407; Wheeler v. Nexboul. II 392. But these rules are uot applicable to the 13 action in question, for the reason that the can: is not expressed in the instrument by shid deposit was made. It is a direction to the Papier Bank to pay to the defendant a certain sum of size

whether for the benefit of the holder of the dar Mr. does not appear from the contract itself

, alice as already suggested, the fair inference is that : 5 intended as a transfer from one depositors to and although the purpose of such transfer

, i es be conceded, was not expressed and does not enten inferentially or otherwise. The transaction is be ever converted into a well-understood contract

force of the usage, if it existed as asserted 5* 1.si | defendant, for the reason that the presenter los for right under its efficacy to require the appista

on

en,

As the fourth of July is approaching it is well to open and in repair and free from puisance. In our
be forearmed. In Robinson v. Greenville, 42 Ohio opinion however the word nuisance, in this con-
St. 695, it was held that a city is not liable for an néction, does not include an assemblage of persons
injury to a person passing in a street, by reason of engaged in such unlawful act, but refers to some-
the negligent discharge of a cannon by disorderly thing which is in a sense fixed or permanent as a
persons. The court said: “Undoubtedly there is defect in the street. But if we could hold otherwise,
difficulty sometimes in determing the class in which the result would be the same, for if nuisance em-
a particular case must fall; and it is also true that braces a mob, then the city is not liable for such
there is considerable conflict in the authorities, as nuisance, on the principle already stated.” See
to the extent of such liability. We will make no Tindley v. Salem, 137 Mass. 171.
attempt to settle this conflict, but have referred to
the above cases for the purpose of illustrating the

A piggery is an indictable nuisance. Commondistinction already stated between cases falling wealth v. Perry, Massachusetts Supreme Court, within the police power of the corporation and those March, 1885. The defendant asked the judge to in which it represents the property rights of the instruct the jury that evidence of the natural odors citizen. Reference to most of the cases on the sub- 1 which come from the bodies of domestic animals, ject, decided previous to 1877, will be found in however annoying to certain persons, would not Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. sustain an indictment for a nuisance; and that the 332; and see Springfield v. Spence, 39 Ohio St. 665; keeping of swine to the number of 500 near dwellBathurst v. Macpherson, 4 App. Cas. 256; Barnes v.

ing houses and streets of a town was not per se a District of Columbia, 91 U. S. 540. That firing can

nuisance. The judge refused so to instruct, and innon in a public street of a municipal corporation, structed the jury that the natural odor of one aniexcept in case of imperative and urgent necessity, mal might not be a nuisance, but the natural odor is an intolerable nuisance, and that all persons en

of 500 might be; that it was for the jury to say gaged in such unlawful act are personally liable for whether it was so in this case ; that 500 swine kept all damages caused thereby, are propositions con

in the vicinity of roads and dwelling houses might cerning which there is no room for difference of become a nuisance, where one would not; that opinion. But a very different question is presented people residing in the neighborhood of this piggery when it is attempted to fasten liability for such in- had a right to have the air free and uncontaminated juries on a municipal corporation. We cannot say by odors, smells and stenches offensive to the senses ; that the firing complained of in the petition was

that it was not necessary for the government to show licensed or expressly authorized. While the com

that the contamination of the atmosphere was to mon law rule, that pleadings must be construed such an extent as to cause an actual injury to health, most strongly against the pleader, has been abro- but it would be sufficient for it to show that the gated, we are not required, under the present system, smells and stenches were so offensive as to render to construe every equivocal word or phrase most the residences and habitations in the vicininty unstrongly in favor of the pleader. On the contrary, comfortable; and that the keeping of swine to the the meaning of the pleader must be fairly ascer

number of 500 near dwelling houses and streets of tained, without regard to technical rules from the

a town would become a nuisance, if smells and whole instrument. Crooks v. Finney, 39 Ohio St.

stenches actually emitted from such keeping were 57. Of course, if legal or technical words are used, such as to render the dwelling houses uncomfortable we are to understand them in their recognized | for residents, or to render the passing in the streets sense, unless the context shows another sense was

uncomfortable. The court, on appeal, affirmed the intended. The words of the petition, fairly con

conviction, observing: “A piggery in which swine strued, charge no more than that the authorities of

are kept in such numbers that their natural odors the village permitted, that is, took no measures to fill the air thereabouts and make the occupation of prevent, such firing; and so the case clearly falls the neighboring houses and passage over the adwithin the first class to which we have referred, and jacent highways disagreeable or worse is a nuisance. hence the corporation is not liable. Norristown v.

Commonwealth v. Kidder, 107 Mass. 188. The Fitzpatrick, 94 Penn. St. 121; S. C., 39 Am. Rep. indictment was sufficient, and the instructions 771; and Boyland v. New York, 1 Sand. 27, are

asked were erroneous. both remarkably like this case in their facts, and in each it was held that the corporation was not liable. And see Campbell's Adm'x, v. City Council of Mont- A curious question of right in a party wall was 53 Ala. 527; City of Lafayette

decided by the Pennsylvania Supreme Court, in Timberlake, 88 Ind. 330. To be sure, it is McCall's Appeal, March 30, 1885, 16 Week. Notes urged here that the village is liable by force of the Cases, 95. A. erected a solid party wall the whole Revised Statutes, $ 2640, which provides: The length of his building to the height of sixteen feet council shall have the care, supervision, and con- above the ground, He continued the wall as a solid trol of all public highways, streets, avenues, alleys, wall to the height of seventy feet except in three side walks, public grounds and bridges within the places, forty feet apart, where he receded from the corporation, and shall cause the same to be kept | party wall nine feet, and then built on foundations

fib

Jth. it as he desires. The language emplorad i

Uc

case of Wells v. Bailey, supra, elucidates sel as

of trols. It is there said 'every legal contractes

P.0; interpreted in accordance with the intention =

the parties making it.' A usage (with s liaisons

ing hereafter noticed), when it is reasonable, cada veas well settled, not in opposition to fired fula link

fm, and not a contradiction of the express tenen 190; contract, is deemed to form a part of the ansi

ses and to enter into the intention of the partie

Jal, Parties are held to contract in reference to the 197; of the State in which they reside, for all ma

are presumed to

pes. | bound to know the law are presumed by reference to it. And so they

fth tract in reference to the usage of the partierkost

iv

or trade, in or as to which they enter into an
ment, when it is so far established and so far bir

gomery,

contract was made in reference to it. Aponte

to the parties that it must be supposed that the

these principles it must be assumed that D: it knew when he gave Mr. Crowell the chart te Ind being no restrictive indorsement, that the Interie for the right to direct the application of it in and

embru

'he as he thought proper. The usage

sel / right and authorized him to demand its magazin

by the defendant,"

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on his own ground, thus forming recesses for light the partnership business; and in an action to recover and air. Held, that he had a right to do this, and the latter alone the party sued may set off a debt due should not be restrained. The court said : “At him from them having no relation to the transactions present, the appellant has sustained no injury by of the firm. Collyer Part., § 764; Holbrook v. Lackey, reason of these recesses being left open. He

may 13 Met. 132, 134; Nehrboss v. Bliss, 88 N. Y. 604. fill them up for the support of any building he may The relation of the surviving plaintiffs to the action erect on the party wall."

is in no sense that of representatives or assignees of

the firm as distinguished from the firm itself. The In Shale v. Minges, 35 Hun, 622, it was held that and continues to be such. They in law are princi

cause of action is theirs, deemed originally theirs, an action brought by the members of a firm for slander of its financial condition and credit does not pals and owners in respect to the matters of the partabate by the death of one of the plaintiffs pending because they are survivors. Their rights in that

nership by virtue of their relation as partners and suit. The court said: On the part of the defendant it is contended that the death of one of the right of action in question was in the firm. The

respect are not derivative or representative. The plaintiffs produced a dissolution of the partnership, death of the member neither vests any rights in the that the firm then ceased to exist; and therefore the practical effect is the same as that produced by survivors, nor does it divest them of any rights of the death of a sole plaintiff. The question is novel property or action then existing. In the prosccuand must be disposed of on principle deemed appli- derived powers, and asserting no new or additional

tion of this action they are exercising no new or cable to the nature of a partnership and the relation rights. Adams v. Hacket, 27 N. H. 289; 59 Am. Dec. of the surviving members to it. If it may be said

376, 377. that a firm as such has an existence in the legal sense distinct from its members, that the right of

MY FIRST CASE. action depends upon the continuance of such entity, and that by the death of one of its members that

A SKETCH AT THE MANSION HOUSE. entity disappears, then a reasou can be seen for the result given at the circuit. In such case there would QURIED in the twilight of an underground den, remain no plaintiff to prosecute the action and it would necessarily abate. But on the death of one regretfully ruminating over the fate which had transof several members of a partnership no personal rep- ferred me, a lad of seventeen, from the pleasant resentative takes his place in respect to the partner- leisure of a country town, with abundant cricket and ship property. He by the event is taken out of the

no drudgery, to my present quarters, where circumfirm, and a dissolution is the consequence, but prac- stances were exactly reversed, when the sudden tically the dissolution has relation only to subse- appearance of the lively Captain C. woke me up. quent business transactions to a qualified extent. This gentleman, ever jovial and impecunious, was a While the agency in the surviving members is so fine specimen of the promoter " class and the pen qualified that they cannot create any new obliga- of Dickens alone could have done justice to that tions or liabilities, their relation to the situation in natty, blithe exterior and that frank insouciant adwhich the death of the member left the property dress which had so long enabled their adroit posand business enables them respectively to manage sessor to live upon his wits and the British public. and control its affairs as fully and completely as On this occasion he was even livelier than usual, before. * The joint relation of the surviv- | being, as he quickly informed me, about to appear ors is not broken into a tenancy in common by such in a new role, that of defendant at the Mansion death, nor are their relation and equities impaired House police court, in a charge of defrauding a railby it. The property of the firm does not, nor do way company. His face fell somewhat when he any rights of action in respect to its matters pass to lea ed that Mr. W. was at Westminster and not any representative of the partnership. It and all likely to return till the afternoon, but as the sumthe then existing rights of the firm continue in the mons was for eleven o'clock, and that hour was survivors, and are theirs at law the same as they had already past, there was no time for deliberation, and been prior to the death of the one member; the after a minute's pause, he asked me to accompany property and rights of all united.

And to that ex- him and as he expressed it, "cheek the thing through tent, and for all practical purposes limited as before somehow.” Accordingly off we went together armmentioned, it may be said that the place prior to in-arm stopping on our way to adorn ourselves with that event filled by the three is after such death oc- flowers, in approved city style. The facts of C.'s cupied by the two survivors. Adams v. Hackett, 27 offense were very simple. On arriving at his office N. H. 289; 59 Am. Dec. 376; Nehrboss v. Bliss, 88 a week or so before, he had found a telegram N. Y. 600, 604. The title and rights of the surviv- there, summoning him out of town for some days

. ors are original and complete in them.

The law

He sent a commissionaire to his wife at his suburbam recognizes no distinction between a debt due the home, with a note to explain his absence, and, survivors in their own right and as surviving part- thinking no harm, gave the man the return half of ners. They may join in the same action a claim his railway ticket. Now the commissionaires, who, due them independent of it, with one arising out of be it explained, are a corps of old soldiers uni

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