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NEW JERSEY SUPREME COURT ABSTRACT.* of Errors and Appeals, delivered in the case of Tide

Water Co. v. Coster, reported in 3 C. E. Green, 518, NATIONAL BANK_USURY — FEDERAL AND STATE seems to me to dispose of this question. The opinion STATUTE.—Where a promissory note is discounted by of Chancellor Walworth, in 3 Paige, 73 (Beekman v. a National bank in New York, the New York statute Saratoga, etc., R. Co.), which is quoted by the chief forfeiting the entire debt is not applicable to the justice in the Tide Water case, is to the effect that if transaction. The Federal act supersedes the State

the public interest can be promoted by the taking of law, inposing penalties for usury, in so far as they per- private property, it rests with the Legislature to detertain to National bauks. This is res adjudicata in the mine whether the benefit to the public will be of suffiSupreme Court of the United States. In Farmers' | cient importance to render it expedient to authorize National Bank v. Dearing, 91 U. S. 29, Mr. Justice an interference with the private rights of individuals Swayne delivered the opinion of the court, overruling for that purpose, and the exercise of the right of emi. First National Bank v. Lamb, 50 N. Y. 95, and deny.

nent domain. “Upon this principle of public benefit." ing the efficacy of the State law to work the forfeiture says Chancellor Walworth, “not only the agents of of the debt. Importers, etc., National Bank v. Littell. the government, but also individuals and corporate Opinion by Van Syckel, J.

bodies have been authorized to take private property

for the purpose of making public highways, turnpike COVENANT-AGAINST INCUMBRANCES-DAMAGES.-

roads and canals, establishing ferries, draining swamps (1) A street was opened and land was assessed for ben

and marshes, and of bringing water to cities and vilefits. Held, that the existence of the liability to be

lages." In remarking upon the above language of assessed was a breach of the covenant against incum

Chancellor Walworth, the chief justice in the Tide brances contained in a deed for said land executed be

Water case says it embodies the correct principle, and tween the time of opening the street and making the

that “that the legislative power is not competent to assessment. This question has received the considera

take the property of A. and transfer it to B., simply for tion of the Supreme Court of Massachusetts in the case

the benefit or convenience of B., because such an act of Blackie v. Hudson, 117 Mass. 181. In that case it

has no public aspect.” “But if the sequestration of was held that a covenant against incumbrances was

the property of A. will to a material extent be servicebroken by the existence of a liability to an assessment

able to the public at large, whether such sequestration for widening the street, although the assessment there.

shall take place must be committed as a pure matter for was made subsequently to the execution of the

of discretion to the Legislature, provided such discredeed. In the subsequent case of Carr v. Dooley, 119

tion be exercised in good faith.” Olmstead v. ProprieMass. 294, the same principle was adopted in regard to

lors of the Morris Aqueduct. Opinion by Parker, J. a liability for an assessment for building a sewer. There is nothing in the statutes under which the im- JURISDICTION-LOCAL COURT-CONSENT WILL CONprovements meu tioned in those cases were made which FER.--The District Court of ope city may entertain a distinguishes them from the one now under considera- suit against a resident of another city in which a Distion. It may be observed of the cases in Massachu-trict Court exists, provided the defendant does not in setts that they fix the point of time when the liability time object thereto; and if he goes to trial without arises at the date of the order to make the improve- raising the objection the juristiction of the court will ment. Here it is necessary only to hold that the lia- be complete. Sometimes the law under which a tribubility exists from the time of the execution of the nal is organized confers jurisdiction on such terms work which constitutes the improvement. It is not that the status of parties is evidently designed to conintended to criticise or adopt the Massachusetts rule, stitute one of the legal bases of authority. Thus, in which has the merit of certainty as to the time when the grant of judicial power to the government of the the lien becomes fixed, but it is apparent that the cor- United States, the citizenship of parties is made a conrectness of the doctrine that the incumbrance pre- dition of jurisdiction. U. S. Const., art. 3, $ 2. In cedes the assessment strikes the judgment more forci- | actions brought in the Federal courts under this grant bly after the work has been done and the benefit bas the essential fact of citizenship must be averred upon actually accrued for which the assessment has been the record, or the courts cannot lawfully proceed. made. To this extent only is it essential to go to hold M. C. & L. M. Railway Co. v. Swan, 111 U. S. 379. So that this plaintiff is not only entitled to recover, but

in the creation of certain strictly local courts within to recover substantial damages. This result is in ac

the State of New York the jurisdiction was expressly cordance with the views of the chancellor in the case

limited to cases in which the cause of action arose of White v. Stretch, 7 C. E.Green, 76, a similar case to within a designated territory, or the subject of the acthis. (2) The measure of damages in action for a

tion is situated, or the defendant resided or was served breach of the covenant against incumbrances differs with process within that territory. Thereupon it was in three classes of cases. First, where the incum- held that some one of these elements of locality must brance is a debt which has been paid by the cove

exist to confer upon the court jurisdiction of the cause, nantee; second, where it might have been, but has not and that to extend the jurisdiction to causes not thus been so paid; and third, where the incumbrance is such localized would strip the courts of the local character that it cannot be discharged, as a servitude or unma

with which the Legislature had clothed them. Wheelock tured mortgage. In the first class of cases the cove. v. Lee, 74 N. Y. 495; Davidsburgh v. Insurance (0., 90 nantee recovers what he has paid ; in the second class

id. 526. In such instances as these the status of the he recovers nominal damages only, and in the third litigants is ranked with the subject-matters in controclass he recovers an amount estimated as a compensa- versy as donating a class of causes to which the juristion for the depreciated value of the land resulting | diction is confined, because of the precise terms in from the existence of the incumbrance. Sedg. Dam.

which the limited jurisdiction is granted. But in our 179. The present case is within the first class. Fagan act constituting District Courts, jurisdiction over v. Cadmus. Opinion by Reed, J. [(2) See 26 Am. causes does not seem to be made dependent upon the Rep. 135.)

status of litigants. No restrictive terms so confining CONSTITUTIONAL LAW-PUBLIC PURPOSES-PRIVATE

it appear. Every suit of a civil nature at law, in volv. PROPERTY.—The supplying of a city or town with ing not more than a designated sum, and except cerwater is a public purpose. The opinion of the Court tain specified causes of action, is made cognizable in

these courts. The boundaries of jurisdiction are thus * Appearing in 46 N. J. L. Reports.

determined by the nature of the controversy, and not

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by the place of its origin or the status of the parties. after marriage sees her in a situation of temptation, The added clause, giving each court exclusive juris- and does nothing to rescue her, and she yields, will be diction over such suits when the parties defendant re- understood as having consented to ber adultery. side within the city where the court is held is not vec- Chancellor Zabriskie declared in Hedden v. Hedden, 6 essarily nor most reasonably to be regarded as detract- C. E. Green, 61, that if a husband sees what a reasona. ing from the previous grant, but possesses merely a ble man could not see without alarm, or if he knows force quite consistent with it. The office of this clause that his wife has been guilty of ante-nuptial inconti. is to secure to the residents of these cities the privilege nence, or if be has himself seduced ber before marriage of having suits against them within the act brought whereby he is put upon his guard respecting her weak. only in that tribunal which is convenient for them. It ness, he is called upon to exercise peculiar vigilance indicates simply the persons who may not be con- and care over her, and if he sees what a reasonable pelled to submit to other jurisdictions. The exemp- man could not permit, and makes no effort to avert tion granted thus appears to be a mere personal privi- the danger, he must be supposed to see and mean the lege, and therefore those who have it may waive it at result. Cane v. Cane. Opinion by Vau Fleet, V. C. pleasure. If a defendant so favored be sued before

WILL-WIDOW RECEIVING RENTS-ACCOUNT-TAXES some other tribunal, and designs to avail himself of

AND INSURANCE.--A decedent left no property, except his privilege, he must either plead to the jurisdiction a lot with an unfinished bouse thereon, which bis (3 BI. Com. 298) or move in time to be discharged.

widow occupied for about three months after his Pleading generally or going to trial without objection

death, and then leased and received the rent. Iu a renders the authority of the court complete. Toland suit by the children for partition thereof, held, that V. Sprague, 12 Pet. 300; McCormick v. P. R. Co., 49

she was entitled to reimbursement of moueys paid by N. Y. 303. Funck v. Smith. Opinion by Dixon, J.

her for taxes thereon, and also for repairs of damage
to the house by a tempest, but not for the premiums

on insurance policies taken in her own name, and that NEW JERSEY COURT OF CHANCERY AB

she must account for the rents. Houston v. Houston. STRACT.*

Opinion by Chancellor.

WILL-DOWER-PROVISION IN LIEU-FAILURE TO STATUTE-IMPLIED REPEAL.-- Where there are two

DISSENT.–After directing that his debts be paid, and statutes on the same subject, passed at different dates,

makiug a specific devise, a testator gave the "balauce and it is plain from the frame work and substance of

and residue" of his estate to his wife, declaring that the last that it was intended to cover the whole sub

that gift to her was in lieu of her dower. In the setject, and to be a complete and perfect system in itself,

tlement of the estate and the payment of the testathe last act must be held to be a legislative declaration

tor's debts, all his personal estate was exhausted, and that whatever is embraced in it shall prevail, and whatever is excluded is discarded and repealed. by order of the Orphans' Court. Held, that his widow

all his lands, other than those specifically devised, sold United States v. Tynen, 11 Wall. 88. Mr. Justice Van

was not deprived of her right of dower in those other Syckel, in Roche y. Jersey City, 11 Vr. 257, 259, said:

lands by her failure to file her dissent to the devise to "This rule does not rest strictly upon the ground of her within the time limited by the statute. Thomprepeal by implication, but upon the principle that

son v. Egbert, 2 Harr. 459; Chiswell v. Morris, 1 when the Legislature makes a revision of a particular McCart. 101. Osmun v. Porter. Opinion by Chancelstatute, aud frames a new statute upon the subject

lor. matter, and from the frame-work of the act it is apparent that the Legislature designed a complete scbeme for the matter, it is a legislative declaration MICHIGAN SUPREME COURT ABSTRACT. that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is de CONTRACT-NOVATION - CONSIDERATION — STATUTE cisive evidence of an intention to prescribe the pro- OF FRAUDS.-W. was indebted to plaintiffs, and devisions mentioned in the later act as the only ones on fendants were indebted to W. By W.'s request de. that subject which shall be obligatory." Bracken v. fendants promised to pay the amount which they Smith. Opinion by Van Fleet, V. C. (See 30 Alb, L. owed W. to plaintiffs instead of to him, and plaintiffs J. 238.)

relinquished their claim in consideration of such promMARRIAGE--DIVORCE---PRESUMPTION OF ADULTERY

ise, and defendant charged the amount to it on its own

books. Held, that the transaction rested upon a sufREBUTTAL

DECOYING DUTY HUSBAND.-(1) A visit by a married woman to a

ficient consideration, and that plaintiffs were entitled brothel will, unless satisfactorily explained, justify

to recover the amount from defendants. 2 Whart. the presumption that she went there for a criminal

Cont., $ 853. The statute of frauds bas no application

to a case like the present. Bird v. Gammon, 3 Bing. purpose. Lord Stowell said, in Williams v. Williams, 4

(N. C.) 883; Dearborn v. Parks, 5 Greenl. 81; Rowe v. Eng. Eo. 416(1 Hagg. Con. 290), that it was almost impossible to believe that a woman would go to a brothel

Whittier, 21 Me. 545; Pike v. Brown, 7 Cush. 133; Barfor any but a criminal purpose; and therefore in his

ker v. Bucklin, 2 Den. 45; Farley v. Cleveland, 4 Cow.

432; Rice v. Carter, 11 Ired. 298; Files v. McLeod, 14 opinion it had been properly held that such conduct on the part of a wife furuished sufficient evidence of

Ala. 611; Robbins v. Ayres, 10 Mo. 538, Bowen F.

Kurtz, 37 Iowa, 239. The rule has been stated to be adultery to justify a decree that she was guilty. And Dr. Lushington, in Astley v. Astley, 3 Eng. Ec. 303 (1

that where a party who was not before liable underHagg. Ec. 714), held that such conduct on the part of

takes to pay a debt of a third person, and as a part of a wife must constrain a court to conclude that she

the agreement, the original debtor is discharged from had committed adultery. (2) Such conduct will

his indebtedness, the agreement is not within the statnot however afford evidence of

Packer y. Benton, 35 Conn. 343; Fairlie v. Den

guilt if it is shown

ton, 8 Barn. & C. 395; Wilson v. Coupland, 5 Barn. &
that the wife was decoyed there
of

Ald. 228.
her husband, and for

The defendant's coupsel claims that no reby the procurement

covery can be had under the common counts. The the purpose of making a case against her.

(3) A husband who seduces his wife before marriage, and

testimony teuded to show, and we think established

the fact, that defendant was indebted to Weller in the * To appear in 39 N. J. Eq. Reports.

amouut of his indebtedness to plaintiffs, which was re.

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SHOW

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tained by them and constituted a fund in defendant's to personal property in one country under a title from hands with which to pay plaintiffs, and in such case the person domiciled in another can only be asserted the defendant wonld be liable under the count for by the instrumentalities which the institutions of the money had and received. Moreover the amount to be country where the claim is made have provided. The paid by defendant under the agreement was a sum foreign law furuishes the rule of decision as to the certain, and it is elementary law that when a sum cer- validity of the title to the thing claimed; but in retain is due on a simple contract, indebitatus ussumpsit spect to the legal assertion of that title it has no extrawill lie to recover it. Packer v. Benton, 35 Conn. 343. territorial force. As a result of this doctrine it is now Mulesone v. American Lumber Co. Opinion by Cham- | generally held everywhere, and is well settled in this plin, J.

State, that an executor or administrator appointed in [Decided Jan. 14, 1885.]

another State has not, as such, any authority beyond

the sovereignty by virtue of whose laws he was apEXECUTOR AND ADMINISTRATOR-FOREIGN-DOMI- pointed. Denio, J., in Parsons v. Lymay, 20 N. Y., CILE-PERSONALTY GOVERNED BY LAW OF.--S., a bach- 103, 112; citing Morrell v. Dickey, 1 Johus. Ch. 152; elor, who had previously been a citizen of Michigan,

Vroom v. Van Horne, 10 Paige, 549. The same genwent to St. Louis, Mo., where he engaged in business, eral doctrine is also coucisely stated in a case in the and on March 27, 1876, died intestate at the hotel where Federal Supreme Court: “A grant of administration is he boarded. He left heirs in New York, Minnesota strictly confined in its authority and operation to the and Michigan. He owned lands and claims, secured limits of the territory of the goverument which grants by mortgage, in Michigan, amounting to $50,000; one it, and does not de jure extend to other countries. It mortgage, executed by A. and wife, for $1,125 and in- cannot confer, as a matter of right, any authority to terest, being payable at St. Louis, Mo., or at any other collect assets of the deceased in any other State, and place that S. might elect, in five years from date. L., whatever operation is allowed to it beyond the origias publio administrator, claimed the right to adminis- pal territory of the grant is a mere matter of comity, ter on the estate in St. Louis, and notified by tele- which every nation 18 at liberty to yield or withbold, graph the heirs in Michigan of the death of S., and according to its own policy and pleasure, with refersent his body to them, as requested. R., a brother-in- ence to its own institutions and the interests of its law of S., on May 29, 1876, took out letters of adminis- citizens." Story, J., in Vaughau v. Northup, 15 Pet. tration in Michigan, and called on L. for the property, 2, 5. L. then, if legally administrator in Missouri, bad which L. refused to deliver, insisting on his right to

no official authority in this State except such as by act as public administrator. In June, 1876, L. made comity would be recognized; and the rules of comity public sale of the securities belonging to the estate for might be determined either by usage, of which the a mere nominal price, and F. became the purchaser of judicial decisions would be evidence, or by statute. the A. mortgage, with knowledge of the appointment Some of these rules are general, and are well settled. of R., and subsequently assigued the mortgage to There are cases, for example, where it has been held B., who executed a discharge thereof on payment of

that a foreign administrator has a right to collect and $600. M. afterward bought the land. R. died in Sep- take possession of administration (Doolittle v. Lewis, tember, 1878, complainant was appointed as his succes

7 Johns. Ch. 45; Browu V. Brown, 1 Barb. Ch. 189; sor, and a suit was instituted to foreclose the mort- Vroom v. Van Horne, 10 Paige, 549; S. C., 42 Am. Dec. gage. Held (1), that although S. was at the time of his 94; Riley v. Riley, 3 Day, 74; S. C., 3 Am. Dec. 260; death domiciled in St. Louis, L. was not authorized by Smith v. Gould, 34 Me. 413; Rand v. Hubbard, 4 Metc. the Missouri statute to take charge of his estate as 252; Marcy v. Marcy, 32 Conn. 308), and where there public administrator; and (2) that as public adminis- are no domestic creditors or other claimants, there will trator he had no authority, after the appointment of be no occasion to question such cases. There may R. as administrator, to sell and assign the mortgage in

also be cases of payments to a foreign administrator suit, and that the mortgage should be foreclosed. The which may be recognized, there being no conflicting general principle relied upon by defendants, that

administration. Williams v. Storrs, 6 Johns. Ch. 353; personal property, in contemplation of law, accom- Trecothick v. Austin, 4 Mason, 16, 33; Wilkins v. Elpanies the person of the owuer, and that its disposition lett, 9 Wall. 740; Vroom v. Van Horne, supra; Cition his death is to be determined by the laws of his zens' Bank v. Sharp, 53 Md. 521. And where an addomicile. But while the rule of distribution is thus ministrator in the forum of his appointment has asdetermined, the steps to reach it may be otherwise signed demands bona notabilia there, it may be correct prescribed; and when the property is in one jurisdic- to hold that his assignee may sue thereon here in his tion and the domicile in another, the necessity for dis- own name; as was held in Harper v. Butler, 2 Pet. 239, tinct proceedings in administration may be impera

and Petersen v. Chemical Bank, 32 N. Y. 21, and cases tive. The proceedings, when taken in this class of cited; as to which see Knapp v. Lee, 42 Mich. 41; S.C., cases, are governed and regulated by certain rules of 3 N. W. Rep. 244. But this case involves the validity interstate comity, which are thus stated by the Court of the assignment of a debt secured by real estate of Appeals of New York: “ It is an established doc- mortgage on lands in this State. It was decided in triue, not only of international law, but of muni- Cutter v. Davenport, 1 Pick. 81, that the foreign adcipal law of this country, that personal property has ministrator had no authority to make such an assignno locality. It is subject to the law which governs the ment; and this is followed in the recent case of Dial person of the owner, as well in respect to the disposi- v. Gary, 14 S. C. 573; S. C., 37 Am. Rep. 737. Whether tion of it by act inter vivos as to its transmission by these decisions would be followed in this State if there last will and testament, and by succession on the were no statute bearing upon the question, we do not owlier dying intestate. The principle no doubt has its care to inquire, because we think if the power to asfoundation in international comity, but it is equally sign would exist independent of statute, it does not obligatory as a rule of decision in the courts as a legal exist uuder the statutes now in force. The statutes rule of purely domestic origin. It does not belong to provide for recognizing the authority of a foreign adthe judges to recognize or deny the rights which indi- ministrator when it becomes necessary to make sale viduals may claim under it at their pleasure or caprice; of lands in this State, and prescribes the steps to be but it having obtained the force of law by user and taken for that purpose. How. St., $$ 6057-6061. If adacquiescence, it belongs to the political government of ministration is needed in this State for other purposes, :he State to change it whenever a change becomes de- new letters must be taken out; and an administration birable. But the right which an individual may claim ancillary to one in another State would proceed like any

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other up to the time of accounting. And for the pur- gage, and at her request this mortgage was purchased pose of selling lands it seems very clear that a public by a third person and held for her. She sold property administrator could not be recognized in this State at enough to pay both debts, and of that which was sold all; for the statute contemplates the case of an admin- enough was included in the chattel mortgage to pay istrator “appointed” in some other State or country, that off. Afterward her son, who was cognizant of all who shall produce and file in proper court an authen- the facts, took an assigument of the chattel mortgage. ticated copy of his appointment.” $ 6057. A public Held, that the chattel mortgage must be deemed satadministrator having no appointment for the special isfied. (2) If there were any facts to excuse the case would not be within the terms of this statute. No

failure to apply the moneys received on the sale in sat. case has been called to our attention in which it has isfaction of the mortgage, they should have been afbeen held that after letters issued in one State or firmatively established, as the sale prima facie paid it, country a foreign administrator can be recognized under the circumstances stated. Long v. Moore. there even for the purposes of a voluutary payment; Opinion by Cooley, C. J. and the cases like Vaughn v. Barret, 5 Vt. 333; Young [Decided Jan. 21, 1885. 1 v. O'Neal, 3 Sneed, 55; and Ferguson v. Morris, 67 Ala.

MALICIOUS PROSECUTION - PARTICIPATION OF DE 389, which deny the validity of such a payment gener

FENDANT-FALSE ARREST-PROBABLE CAUSE.- Defend. ally, if questionable when no domestic appointment

ant had a horse stolen from his pasture. A man of exists, are perfectly sound and reasonable if there is at the time a valid administration in the State. See

bad reputation, who had served a term in prisou, and

was then under criminal accusation, told a story conNoonan v. Bradley, 9 Wall. 394, 405. It is the duty of

necting plaintiff and his son with the larceny. De. the citizens of the State to recognize and defer to the

fendant, for some time, took no notice of this story, judicial determination of its own tribunals, as much

but after three weeks or so went to a justice and obwhen they concern matters of administration as in

tained warrant for plaintiff and his son, other cases (Henderson y. Clarke, 4 Litt. 277), and this

ou which they were arrested in the night-time, handis especially true in a case like the present, where

cuffed, and taken to the jail. Defendant, with others, nothing existed to bring in question the judicial deter

was with the officer when the arrest was made and the mination of the Michigan court, except the bare assertion of his own authority by the foreign official. By

parties taken away. The warrant was obtained with

out evidence, and the case was continued before the the law of this State tbe title to this demand, for all

justice for three weeks, and was then voluntarily purposes of administration, was in the Michigan ad

abandoned. Plaintiff then brought an action for maministrator, who might put it in suit when due, or as

licious prosecution. Held (1), that the defendant, sign it of record or discharge it of record. He was

wlien he applied to the justice for a warraut, was therefore the only person who could be safely dealt

bound to state to the justice any facts tending to de. with in respect to it. Reynolds v. McMullen. Opinion

tract from the credibility of the charge against the by Cooley, C. J. [26 Eng. Rep. 12; 37 Am. Rep. 737;

plaintiff, and if his information came from such a 36 id. 700.-ED.)

source that he gave it little or no credence himself, he [Decided Jan. 14, 1885.]

should have stated the fact. (2) The defendant in thus NEGLIGENCE-RAILROAD-PERSONAL INJURY-CON- procuring a warrant without evidence, and accomTRIBUTORY NEGLIGENCE-STREET CROSSING.- Where panying the officer who made the arrest in the nightin an action against a railroad company for a personal time, is responsible for the conduct of the officer, and injury the evidence shows that the plaintiff exercised those who accompanied him, in what they did with no care to avoid the danger, and there is no dispute in his apparent acquiescence. (3) A story of crime wbich the testimony on this point, the court may instruct in itself or from its source is so incredible or so unthe jury to find for the defendant; but when the evi- trustworthy that a party does not venture to use it as dence shows, or tends to show, that the plaintiff was evidence for others to act upon, will uot justify him in negligent in his efforts in the right direction to avoid acting upon it himself to the serious prejudice of the danger, but they did not go to the extent for any others. Chapman v. Dunn. Opinion by Cooley, C. J. reason of securing his escape, it is for the jury to say, [Decided Jan. 21, 1885.] under all the circumstances, whether he was negligent in not exercising more care, or in making greater efforts to prevent the injury complained of; and espec

OHIO SUPREME COURT ABSTRACT* ially in the case where, if the defendant had per

JANUARY TERM, 1884. formed his duty, the plaintiff would have been likely to have avoided the danger altogether. Palmer v. Detroit, L. & N. R. Co. Opinion by Sherwood, J.

CHATTEL MORTGAGE-REFILING-WITHIN THIRTY [Decided Jan. 21, 1885.]

DAYS.-In order to preserve the lieu of a chattel mort

gage beyond the first year, the filing of the verified ASSIGNMENT-CHATTEL MORTGAGE-BONA FIDE PUR.

statement and copy required by section 4155 of the CHASER.- Where a partnership firm, in contemplation Revised Statutes, must be done during the thirty days of their insolvency, exeoute a chattel mortgage of their

immediately preceding the expiration of the year. stock in favor of a near relative, and a few days after The refiling of the mortgage with such statement beward make a common-law assignment of the same, fore the commencement of the thirty days is not suffiupon a bill filed by her against the assignee for relief,

cient. The claim of plaintiff in error is that the verifiand for payment of her claim, if it appears that she

cation and refiling of this mortgage on September 16, knew of the insolvency of the firrn when she took her

1879, was equivalent to an original filing, and thereby security, and that this knowledge induced her to ask

the lien of his mortgage became valid as against subit, she is not entitled to preference as a bona fide se

sequent purchasers in good faith, for one full year after cured creditor. Cron v. Cron. Opinion by Sher

the date of reliling; and in support of this claim relies wood, J.

on Swift v. Hart, 12 Barb. 530. This ense holds under [Decided Jan. 21, 1885.]

a statute similar to ours that a verification and refiling CHATTEL MORTGAGE-SALE-SATISFACTION-PLEAD

after the expiration of a year from the original filing ING.–(1) A woman who held a bill of sale of personal

revives the lien as against subsequent purchasers. This property in security for a debt proceeded to sell the doctrine was questioned in the subsequent case of property. Part of it was covered by a chattel mort

*To appear in 42 Ohio State Reports.

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Newell y. Warner, 44 Barb. 258. It is however ex- v. Atwood, 15 Ohio St. 186, where it is said: “The liapressly decided in National Bank v. Sprague, 20 N. J. bility of the lessee arising from his express contract is Eq. 18, that in order to preserve the lien of a chattel so permanently fixed during the whole term that no mortgage beyond the first year, the refiling a copy re- act of his own can absolve him from the lessor's dequired by law must be done during the thirty days mauds in respect to it.” That was an action by the immediately preceding the expiration of the year. A lessor against the lessee; but the principle applies in refiling before the commencement of the thirty days is any case upon the lessee's covenant where the plaintunavailing. Biteler V. Baldwin. Opiuion by McIl- iff is entitled to the rent secured by the covenant. It vaine, J. [See 21 Eng. Rep. 164. ]

was also decided in that case that an assignment by the

lessee, with the lessor's concurrence and his subseMECHANICS' LIEN-HOW CONSTRUED--SERVICE OF

quent receipt of rent from the assignee, will be ineffectNOTICE-DIRECTOR IS “OFFICER OR AGENT. '-Under

ual to discharge the lessee from his liability. “The the provisions of “An act to secure pay to persons per

lessor, when there is an express agreement of the forming labor or furnishing materials in constructing

lessee, may sue at his election, either the lesses or the railroads," passed March 31, 1874 (71 0. L. 51) which

assignee, or may pursue his remedy against both at provides that “Any person performing said labor or

the same time, though of course with but one satisfacfurnishing said materials, who has not been paid

tion." The foundation of the action by the assiguee therefor, shall serve a notice in writing upon the sec

of the reversion against the assignee of the leasehold is retary or other officer or agent of said railroad con

the privity of estate between them. Tne principle is pany, stating ini said notice the kind and amount of

that the latter shall not enjoy the former's property materials furnished," etc., the service of such notice

without the payment of rent. The action against the upon a director of the railway company to be affected

lessee is upon this express covenant to pay rent during by it is sufficient. It seems clear to us, upon both rea

the term which, as we have above said, runs with the son and authority, that the design of the statute was to

laud anà vests in the assignee of the reversion the right facilitate the methods by which the laborers and ma

to receive the reuts accruing during his ownership of terial-men chiefly affected by it are to secure their

the fee. Smith v. Harrison. Opinion by Mollvaine, claims by cbarging the companies with them, and is

J. (26 Am. Rep. 311.]
entitled to such reasonable and liberal construction as
will best carry out its purpose. Railway Co. v. Cronin,

EMINENT DOMAIN--PUBLIC USE-QUESTION OF LAW 38 Ohio St. 127; Barnes v. Thompson, 2 Swan (Tenn.),

-REV. STAT., $ 4511.-The facts being ascertained, the 315; Buck v. Brian, 2 How. (Miss.) 880; Phillips Mech.

question whether or not a ditch will conduce to the Liens, $ 16. There certainly was a literal compliance

public health convenience or welfare within the meanwith its requirements. When we reflect that “the

ing of the Revised Statutes, section 4511, so that it will corporate powers, business and property of the[railway]

be of public use, is a question of law; and the mere corporations ** * must be exercised, conducted and

fact that larger and better crops may be raised on two controlled by the board of directors"{$ 3248, Rev. St.),

farms sought to be drained does not authorize tbe eswe cannot question that a director of such company is

tablishment of the ditch. Article 1, section 19, of the an "officer" of it. We are at liberty to suppose also

Constitution provides that “private property shall that a director of a railway corporation is one who is

ever be held inviolate, but subservient to the public sufficiently interested in its affairs to see to it that any

welfare;” thus placing beyond question that private fact which comes to his notice affecting his company

property cannot be taken for a mere private use. will with promptness be brought to the knowledge of

McArthur v. Kelly, 5 Ohio, 139; Shaver v. Starrett, 4 the latter. To hold that class of persons who are

Ohio St. 498; Reeves v. Treasurer Wood Co., 8 id. 345. chiefly affected by this provision to a strict rather

Two petitioners sufficient, and one petitioner is all the than liberal construction of it, would tend rather to

law requires; and the land through which the ditch is defeat than to effectuate it. Railway Co. v. McCoy.

to pass need not be owned by more than two persons, Opinion by Owen, J.

and if owned by one person only the ditch may be

made. Reeves v. Treasurer Wood Co., 8 Ohio St. 333; COVENANT-ASSIGNEE OF LEASE -LIABILITY FOR RENT Kent v. Perkins, 36 id. 639. Whether or not the use --RUNS WITH LAND.-(1) The lessee of a perpetual for which property is proposed to be taken is a public leasehold estate is liable, upon an express covenant to use is a question of law, to be settled by the judicial pay rent to the lessor, his heirs and assigns, during the power. Coster v. Tide-Water Co., 18 N. J. Eq. 55; term, in an action by the assignee of the reversion for Tyler v. Beacher, 44 Vt. 618; Parham v. Justices, 9 Ga. accruing rents, whether such rents accrue before or 341; Anderson v. Turbeville, 6 Coldw. 150; Channel after an assignment by the lessee of all his interest in Co. v. Railroad, 51 Cal. 269. The use must be for the the leasehold estate. (2) Such covenant for rent runs public at large. Memphis Freight Co. v. Mayor, 4 with the land, and an assignee of the reversion may, Coldw. 419. The use that will justify the taking of under our Code, sue thereon in his own name. (3) The private property by the power of eminent domain is receipt of rents from the assignees of the leasehold es. the use by or for the government, the general public tate does not absolve such lessee from liability on his or some portion of it; and not the use by or for parexpress covenant. See Crawford v. Chapman, 17 Ohio, ticular individuals, or for the benefit of certain estates. 449; Masury v. Southworih, 9 Ohio St. 340. A perpet- The use may be limited to the inhabitants of a small ual leasehold estate is not a fee-simple, although by locality, but the benefit must be in common,and not to our statutes it has many incidents of a fee-simple es- a very few persons or estates. Costar v. Tide-Water Co., tate. Taylor v. De Bus, 31 Ohio St. 468. The fee sim- supra; Talbot v. Hudson, 16 Gray, 417, 424; Gilmer v. plo remains in the lessor, his heirs and assigns, the Lime Point, 18 Cal. 229. The prosperity of each indiprincipal value of wbich is the right to the rents re- vidual conduces in a certain sevse to the public wel. served by the lease. And the right to sue for and re- fare, but this fact is not a sufficient reason for taking cover rents follows the fee-simple estate, and the action other private property to increase the prosperity of intherefor must be in the name of the owner of the fee dividual men. The draining of marshes and ponds at the time the rent accrues.

ds to the fact that the

may be for the promotion of the public health, and so plaintiff below, as well as her predecessors in interest, become a public object; but the drainage of farms to bad received rent from the owners of the leasehold af- render them more productive, is not such an object. ter the defendant bad assigned and transferred all his Anderson v. Kerns Draining Co., 14 Ind. 199. Mcinterest therein, it will be sufficient to refer to Sutlit | Quillen v. Hatton. Opinion by Follett, J.

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