Слике страница
PDF
ePub
[ocr errors]

and tenant, though the contractor occupies the farm buildings while so employed.-Gray v. Reynolds, N. J., 50 Atl. Rep. 670.

95. LANDLORD AND TENANT-Right of Tenant to Farm Orops.- The tenant of a farm in general, is the owner of the crops, and has authority to sell or mortgage tbem.-Kelley v. Goodwin, Me., 50 Atl. Rep. 711.

96. LICENSE:-Legal Classification.-In assessing a license tax on classes into which trades and profession are divided, the tax is not unconstitutional, if the classification be equal and unilorm on ail persons in the same class.-Browne v. Selser, La., 31 South. Rep. 230.

97. LICENSES - Money Loaning.-A person opening an ofice, and advertising that he has money to loan, and making daily loans, held to carry on the business of money loaning, and to be subject to a license, though the money loaned be his own.-State v. Tol. man, La., 31 South. Rep. 320.

98. LIFE ESTATES-Taxes.-A lile topant 18 liable for taxes accruing during the continuance of his estate.Jeffers v. Syddam, Mich., 89 N. W. Rep. 42.

99. LIFE INSURANCE – Cancellation.-Contention by insured that the policy is not renewed, and that there. tore he does not owe the premium, does not cancel It. -Tucker v. Dairy Mut. Ing. Co., Iowa, 89 N. W. Rep. 37.

100. LIFE INSURANCE Surrender by Iufant.- Per. sopal representatives of an Infant held not entitled to recover on a life insurance policy which the plant in. sured had surrendered to the company.-Pippen v. Mutual Bep. Lite 108. Co., N. Car., 40 S. E. Rep. 822.

101. LIMITATION OF ACTIONS Deception Causing Claim to be Barred.-Where delendunt bas by decep. tion, or by any violation of Juty toward plaintiff, caused him to subject his claim to the bar of limita tions, equity will not permit him to hold the advan. tage thus obtained.-Clark v. Augustine, N. J., 51 Atl. Rep. 68.

102. LIMITATION OF ACTIONS Guardian's Plea.Guardian's plea of limitation held not to relate back to the follog of an account, 80 as to prevent it from 10. terrupting the running of limitations, under Code 8 3486.- Blakeney v. Wyland, Iowa, 89 N. W. Rep. 16.

103. LIMITATION OF ACTIONS—Wife's Right of Action for Trespa89.-Under Code $ 163, a wife's right of ac. tion or trespass on land held by herself and busband by entirety is not barred until the statutory period after her busband's death.-Spruill v. Branding Mig. Co., N. Car., 40 N. E. Rep. 824.

101. MARRIAGE-Angulment for Fraud.-A marriage cappot be appulled for fraud, where the parties, after the commencement of the action, live together with full knowledge of the facts constituting the fraud.Steimer v. Steimer, 71 N. Y. Supp. 714.

105. MASTER AN SERVANT – Assumption of Risk.-A workman repairing an elevator, wbo is injured while needlessly working under the elevator by the elevator boy's failure to obey the workman's direction, cannot recover of the owners of the building.-Hall v. Poole, Md., 50 Atl. Rep. 703.

106. MONOPOLIE8-Restraint of Trade.-That pur. chaser of a fish business, under contract prohibiting vendor from further prosecuting the business, made gimilar contracts with other fish dealers, held not to make original contract invalid as in restraint of trade. A. Booth & Co. v. Seibold, 74 N. Y. Supp. 776.

107. MORTGAGES - Assignment.-The assignment of a mortgage containing a power of sale to a corporation incapable of exercising the power held not to prevent the exercise of such power by an assignee of the cor. poration.-Maslin v. Marshall, Md., 51 Atl. Rep. 85.

108. MORTGAGES Parol Variation.-The plain terms of a mortgage held pot susceptible of variation by a parol contemporaneous agreement, in the absence of facts warranting a reformation of the instrument.Holmes v. Holmes, Mich., 89 N. W. Rep. 47.

109. MORTGAGES Showing Fraud in Execution.

Other acts of a similar character occurring about the same time as the execution of a mortgage beld admis. sible as obowing fraudulent intent, in an action to set aside the mortgage.-Kelliber v. Sutton, Iowa, 89 N. W. Rep. 26.

110. MUNICIPAL CORPORATIONS Construction of Cross Walk.- Where a city constructs a cross walk, and leaves an open ditch alongside, without any bar. rier, and a person in the night falls into the ditch, the question of the city's negligence is for the jury.Goucher v. City of Sioux City, Iowa, 89 N. W. Rep. 24.

111. MUNICIPAL CORPORATIONS - Detective Sidewalk. -Judgment against a city for injury resulting from a delective sidewalk held not conclusive of the liability of the owners of property adjoining sucb walk, in a suit by the city against them.-City of Lansing v. Detrolt, L. & N. R. Co., Mich., 67 Pac. Rep. 64.

112. MUNICIPAL CORPORATIONS Enforcing Police Regulations.-Under Const. art. 12, $ 2, authorizing municipalities to make and enforce police regulations, a city may punish a misdemeanor, notwithstanding there is a general law defining and punishing the same offense.-State v. Quong, Idabo, 67 Pac. Rep. 491.

113. MONICIPAL CORPORATIONS – Limiting Municipal Indebtedness.-City's liability to paving contractor for loss resulting from an erroneous assessment on property not liable therefor held pot within the pro. hibition of Const. art. 11, § 3, limiting municipal in. debtedness.- Ft. Dodge Electric Light & Power Co. v. City of Ft. Dodge, Iowa, 89 N. W. Rep. 7.

114. NEGLIGENCE – Negligence of Párents.- Negll. gence of parents lo allowing child of four years old to play around engine bouge held pot immutable to child. -Fink v. City of Des Moines, Iowa, 89 N. W. Rep. 28.

115. NEGLIGENCE Presumption of Negligence.Wbere a pedestrian was struck by an iron guard, which fell from one of defendant's windows, negli. gence will bo presumed on delendant's part.- Mentz V. Schieren, 74 N. Y. Supp. 889.

116. NEGLIGENCE-Walder of Rules.-In an action lor Injury occurring while riding op an elevator erected to hoist materials for a building during construction, held, tbat there was no waiver of the rule against rid. ing enunciated by a postal notice, but that one riding took the risk.–Ball v. Hauser, Mich., 89 N. W. Rep. 49.

117. NEGLIGENCE- What is an "Act of God."-A flood, which might have been expected from the climatic or geographical conditions, held pot an act of God, in action for Injury from floating log9.-Gulf Red Cedar Co. V. Walker, Ala., 31 South. Rep. 374.

118. NEW TRIAL-Refusal to Hear Demurrer.- Relusal to hear a demurrer or motion to dismiss cannot be made the subject of a complaint in a motion for now trial.-Waldrop v. Wolff, Ga., 40 S. E. Rep. 830.

119. OFFICERS-Damages Against Usurper.-It is no defense, in an action by one entitled to a public omice against a usurper for bis salary, that plaintiff earned more than the amount of the same in another employ. ment while possession of the office was withheld.Fern v. Beeler, Kan., 67 Pac. Rep. 461.

120. PAYMENT Right to Discount.-A debtor «n. titled to a discount held not entitled to such discount on his failure to make the payment in full, though due to a dispute as to a set off claimed.-Perin v. Cath. cart, Iowa, 89 N. W. Rep. 12.

121. PHYSICIANS AND SURGEONS–Malpractice.-In an action for negligence in treating plaintiff's eye, where experts testified that delendant followed the estab. lished practice and no gross error is shown, he is not liable for injuries caused by the treatment.-Stern v. Lapng, La., 31 South. Rep. 303.

122. PLEADING-Effect of Demurrer.- Where plaintiff demurg to answer because of failure to state facts constituting the defense, the demurres should be car. ried back to the petition, where its allegations are in. sufficient to constitute a cause of action.- Johnson v. Wynne, Kap., 67 Pac. Rep. 549.

123. PLEDGE8-Forged Certificate of Stock.-Pledges of certifcates of stock forged by a busband after bis wife's pledge of the gonuine certificate held entitled to share in the surplus after payment to pledgee of the valid certificate. - First Nat. Bank v. Jones, 74 N. Y. Supp. 692,

124. PRINCIPAL AND SURETY-Defense of Principal.That execution on a judgment rendered against sev. eral, some as principals and some as sureties, did not state that fact, as required by statute, could not avail a principal.-Walker v. Columbus State Bank, Kan., 67 Pac. Rep. 552.

125. PRINCIPAL AND SURETY-Eventual Condemna. tion Bond.-Where defendants in trover gave an eventual condemnation money bond with a surety, though judgment is not obtalned agalost one of the defendants, he is liable as co-surety on the bond.Waldrop v. Woll, Ga., 40 S. E. Rep. 830.

126. PUBLIC LAND8-Adjudication in Land Omce.-A contest in the land office over conflicting bomestead optries is adjudicated and closed when the motion for review 18 denied and overruled by the secretary of the interior.-Cope v. Braden, Okl., 67 Pac. Rep. 475.

127. RAILROAD8-Crossing in Front of Engine.-Tbe attempt of a traveler to cross in front of an engine standing near the crossing is not so inherently dan. gerous as to prevent a recovery of damages, if the ep. gine is unexpectedly started forward upon her.-st. Louis & S. F. Ry. Co. y. Dawson, Kan., 67 Pac. Rep. 621.

128. RAILROADS-Failure to Look and Listen.-Where there is evidence that a traveler, lejured at a railroad crossing, might have assured bis salety by stopping to look and listen, an instruction submitting the question of his obligation so to do was improperly re. fusod.-St. Louis & S. F. R. Co. v. Brock, Kan., 67 Pac. Rep. 538.

129. REFORMATION OF INSTRUMENT8-Mistake.--An Instrument will not be reformed for mistake, in the absence of fraud, upless the mistake was mutual.-. Whelen v. Osgoodby, N. J., 50 Atl. Rep. 692.

130. REFORMATION OF INSTRUMENT8-Mistake ip De. scription.-A mistake in the description of property in a tre insurance policy held properly rectifed in a suit on such policy after the property has been de. stroyed by are.-German Ins. Co. v. Kirkendall, Kan., 67 Pac. Rep. 443.

131. REPLEVIN-Ownership.-In replevin, overments, additional to the general deplal, that defendant 18 the owner of the property and that it had been delivered to him by an officer, who selzed it in replevin between the same parties, does not enlarge tbe 188ues raised by the general denial.-Street v. Morgan, Kan., Pac. Rep. 448.

132. STATUTE8-Journal of Senate as Evidence.-The journals of the senate and house are the only com. petent evidence of legislative procoedings lo reference to the amendments of a bill in the course of its pag. sage.-Jackson v. State, Ala., 31 South. Rep. 380.

133. STATUTE8-Pleading Foreign Statute.-In a plead. ing of a foreign statute, a reference to the page and volume of the foreign laws and an averment of the substance of the statute is sufficient.-Showalter v. Richert, Kap., 67Pac. Rep. 454.

134. STATUTE8-U pressonablenees.-Though a statute Is unreasonable, it will not be beld vold, unless some of its provisions are in conflict with the constitution. - State v. Bolden, La., 31 Soutb. Rep. 393.

135. SOB BOGATION-P’artpers.-Creditor partner, pay. ing a drm debt, held subrogited to the firm creditors' rights in mortgages given by the debtor partner to se. eure the debt.-Schuyler v. Booth, 74 N. Y. Supp733.

136. TAXATION- Property Brought in After Date of Assessment.-Law, 1899, ch. 248, providing for assegg. ment and taxation of property in certain cases, does not apply to property brought into a county after the 18t of March, where the owner has listed all his prop.

erty for taxation under the general l8w8.-Hull v. Joonston, Kag., 67 Pac. Rep. 548.

137. TAXATION-Purchaser at Tax Sale.- Where pur. cbaser of property at a tax sale 18 admittedly in good faith up to citation upon him in a petitory action, prescription runs in his favor and those holding un. der him from the date of the tax sale.-Gautbier v. Cason, La., 31 South. Rep. 386.

138. TAXATION-Tax Sale.- Where property sold at execution is afterwards sold at tax sale on an asseasment against the purchaser at execution sale, tbe original owner can purchase the property from the latter and possess it for himself.-Gauthier v. Cason, La., 31 South. Rep. 386.

139. TRADE-MARKS AND TRADE-NAME8-Fancy Desig. dation of Food.-A term deemed a fancy desigpation as applied to certain food, though food of a similar nature and of a similar pame had been long lo use in the far east.-Dr. Dadirian & Sons Co. v. Hauenstein, 74 N. Y. Supp. 709.

140. TRESPA88-Rigbt of Action by Tenant in Com. mon.-In an action by a tenant in common to recover for the cutting of timber upon the estate, plaintiff is oply entitled to recover a portion of the entire damage equivalent to the part of the estate owned by him. -Winborne v. Elizabeth City Lumber Co., N. Car., 40 8. E. Rep. 825.

141. USORY-National Banks.-Where an action to recover illegal interest charged by a national bank was barred by limitation, and defendant collected a judg. ment against plalotiff for costs, such collection was not a ugurious transaction, extending the period of limitation.-Talbot v. First Nat. Bank, Iowa, 89 N, W. Rep. 15.

142. VENDOR AND PURCHASER-Breach of Contract.On breach of contraet of sale of land by vendee, held not necessary tbat vender should make the second sale by auction.-McKiernan v. Valleau, R. I., 51 Atl. Rep. 102.

143. WATERS AND WATER COURSES The Thread of a Stream.-The thread of a stream is the line midway between the banks at the ordinary stage of water, without regard to the chandel, or the lowest and deepest part of tbe stream. -State v. Burton, La., 31 South. Rep. 291.

144. WILLS-Devise lor Lile. - Where really is devised to one for life, and no further testamentary disposi. tion thereof is made, the reversionary interest vests immediately on testator's death in his helre at law, with the right of ponsors'on postponed.-Ollver v. Powell, Ga., 40 S. E. Rep. 826.

145. WITNE8808-Conversations With Deceased Per. E008. -As to conversations which occurred with a decedent in the presence of a third person, such third person is the only competent witness.-Michels v. Western Underwriters' A880., Micb., 89 N. W. Rep. 56. 146. WITNESSES Cross Examination.- Where

defendant on croes examination admitted the probabil. ity of baving made contradictory statements, crossexamination of the person to whom the statement was said to bave been made, and who was a witness for his co.defendant, as to whether such statement had been made, held not reversible error.- State v. Edwards, La., 31 South. Rep. 308.

147. WITNE8888–Transactions with Deceascd Per. 8009.-Defendant, in an action for lands by an beir of a deceased intestate, is competent to testify as to transactions between himself and the decedent with respect to the premises in question.-Oliver v. Powell, Ga., 40 S. E. Rep. 826.

148. WORK AND LABOR-Contractor Prevented from Completing Contract.-Where a contractor is prevented by the other party from completing the cop. tract, and elects to resclod, and suos in general as. sumpsit, be cannot recover damages for the breach, but merely the value of bis services.-North p. Mallory, Md., 51 All. Rep. 89.

[ocr errors]
[ocr errors]

.

[ocr errors]

RIGHT TO INJUNCTION IN CASE OF BREACH. Central Law Journal.

OF CONTRACT FOR PERSONAL SERVICES.

Whether a prohibitory injunction can be ST. LOUIS, MO., JUNE 6, 1902. invokerl to prevent the breaking of a con

tract for personal services or to assist in its REVQCATION OF CHECK BY DEATH OF

negative enforcement is one of the most inDRAWER.

teresting questions in modern jurisprudence. On the interesting question of the revoca- Ever since the celebrated English case of tion of a check by the death of the drawer Lumley v. Wagner, the rule has been stated the authorities are very meager.

We are

to be that in contracts for personal services therefore inclined to give special prominence where special and extraordinary skill or to the recent case of Weiand's Administrator ability is involved, as, for instance, v. State National Bank, 65 S. W. Rep. 618, in cases of authors or opera singers where the Court of Appeals of Kentucky of great renown, court of equity, distinctly held that the death of the drawer wbile powerless to compel performoperates as a revocation of a check, so that ance, will, in case of an attempted breach of if the bank pays it after notice of that fact, such contract, prevent the defaulting party it does so at its peril. The only direct au- from profiting by his perfidy and close every thority for this holding is to be found in the avenue of usefulness in that particular position assumed by several prominent text direction against him until he has honorably writers, principally Morse on Banking, who performed or been released from his obligalays down the rule as follows: If the tion. It is of course true that in this coun. drawer has revoked the order before the bank try at least the courts have not been anxious has made payment or bound itself to pay, it to extend the operation of this rule, must not pay; nor if the drawer is insane, but it has been only in a recent class nor if the drawer is dead, not being a corpo- of cases that a new argument has been adration or firm." Of course, in cases of the vanced against the operation of the rule at all death or insanity of the drawer, knowledge in this country,--the constitutional objection of that fact must be brougbt home to the bank that it enforces involuntarily servitude. before it has paid the check or has become The cases referred to arose in the recent bound for it. This same statement of the law is litigation between certain clubs of the Namade in 2 Edw. Bills & Notes, § 739. The tional Base Ball League and certain players only case which seems to sustain the law as of that association who broke their contracts thus announced is that of Tate v. Hilbert, 2 for the season of 1902 and attempted to hire Ves. Jr. 118.

their services to a rival organization. The We cannot say that we approve the rule first of these cases arose in Philadelphia, thus announced. It injects an element of the outcome being unfavorable to the contoo much uncertainty into one of the most tention of the players sought to be enjoined. common transactions of modern business | Philadelphia Ball Club v. La Joie, reported life. It has been estimated that three-fourths on page 446 of this number of the Jourof the credit transactions of the United States NAL. Following this case, similar litigaare represented by commercial paper in the tion involving identically the same contracts form of checks. They have certainly become arose in the circuit court of St. Louis in the a very popular medium of exchange, and de- case of American Base Ball and Athletic serve to bave added to them every element Co. v. Harper. The opinion in this case by of certainty that is possible to attribute to Talty J., we also publish in this issue im. them. If the uncertainty of the maker's mediately following the Pennsylvania case. In death is to be permitted to invalidate obliga- this latter case, for the first time, the question tions of this character, their usefulness as a of involuntary servitude is considered as a medium of exchange will be seriously im- coustitutional defense to the issuance of an paired. If such is the rule at common law, injunction in this class of cases. Considering the more quickly it is changed by statute the the great importance of this question we are better it will be for the business interests of fortunate in being favored with an exhaustive the country.

analysis and annotation of both these cases by

Prof. John D. Lawson of the Missouri State University, and in view of the high practical value and interest that attaches to this question, it will be quite unnecessary to urge upon any discerning lawyer or jurist its most careful consideration.

NOTES OF IMPORTANT DECISIONS.

that a person riding on the bumper of a street car after being warned by the conductor of bis dangerous position is guilty of contributory negligence, as a matter of law, so as to prevent recovery for injuries occasioned by being struck from the rear by another car.

The court is clear and emphatic in its statement of the law on tbis question: "Plaintiff involuntarily, and without invitation or perniission, chose to ride in a dangerous place, rather than attempt to get inside or to wait a few minutes for another car. His negligent act was a continuing one, and directly contributed to the injury. When a place is one not provided or intended for passengers to ride upon, and is in itself dangerous, the employee who assumes to permit a passenger to ride in such a place acts without authority, unless such authority be shown expressly or by common custom."

This case comes within the principle established by the following anthorities: Chamberlain v. Railroad Co., 11 Wis. 238; Jackson y. Crilly, 16 Colo. 103, 26 Pac. Rep. 331; Railroad Co. v. Miles, 40 Ark. 298, 48 Am. Rep. 10; Carroll v. Transit Co., 107 Mo. 653, 17 S. W. Rep. 889; Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506; Bard v. Traction Co., 176 Pa. 97, 34 Atl. Rep. 954, 53 Am. St. Rep. 672. The last case is the parallel of this in its facts, except that the conductor in tbat case did not know that the plaintiff was standing upon the bumper.

NUISANCES—RIGHT OF MUNICIPALITY TO DECLARE THE KEEPING OF A JACKASS A NurSANCE.—Every day adds constantly increasing testimony to the fact that in the cities the liberties of the people are being rapidly curtailed. We cannot say, however, that this is not one of the necessities of city life as it exists to-day in all its complexity. In regard to nuisances, the rules has been and is to-day well settled that the authority to prevent and abate nuisances conferred upon a municipality does not permit it to declare that a nuisance which is not so in fact. The difficulty, however, lies in the fact that the courts hesitate to disturb the discretion of municipal assemblies in branding certain things as nuisances. Many kinds of business, for instance, might easily be considered a nuisance in a large city which would be perfectly legitimate in more rural districts. On this priaciple the court rested its decision in the recent case of Ex parte Foote, 65 S. W. Rep. 706 in which the the Supreme Court of Arkansas held that under a statute which invests municipal corporations with power to prevent annoyance within their limits, to abate nuisances, and to enact ordinances to carry into effect such power, and "to improve the morals, order, comfort and convenience of their inhabitants," a town may enact an ordinance prohibiting the keeping of a jackass within its limits in hearing distance of its populace, and declaring such keeping to be a nuisance. The court says: “As a rule, a jack is kept for one purpose only,and that is propagation of his own species and mules. He has a loud, discordant bray, and, as counsel say, frequently “makes himself heard regardless of hearers, occasions, or solemnities. He is not a desirable neighbor. The purpose for which he is kept, bis frequent and discordant brays, and the associations connected with him, bring the keeping of him in a populous city or town within the legal notion of a nuisance."

Wills-EFFECT OF MARRIED WOMEN'S ACT3 ON RULE REVOKING WILL OF UNMARRIED FEMALE ON HER MARRIAGE.- Is the rule tbat a will of an unmarried female is deemed revoked by her subsequent marriage, affected by legislation removing the disabilities of married women? One phase of this interesting question is considered in the recent case of In re Booth's Will, 66 Pac. Rep. 710. In this case it appeared that the statutes of Oregon provided that the will of an unmarried woman should be deemed revoked by her subsequent marriage. The exact holding of the court was that this statute was not repealed by a subsequent enactment, removing the common-law disabilities of married women, and vesting them with complete control of their property.

This question has become highly important because of the fact that recent legislation of a similar character has been adopted in many states in this country. In regard to the particular question here involved, however, it has been gener. ally held that the effect of such legislation is to abrogate and apnul the common-law rule, because it removes the reason upon which it was founded, and substitutes an entirely new principle and policy. Chapman v. Dismer, 14 App. D. C. 446; Appeal of Emery, 31 Me. 275, 17 Atl. Rep. 68; Noyes v. Southwortb, 58 Mich. 173, 20 N. W. Rep. 891, 54 Am. Rep. 359; Fellows V. AL len, 60 N. H. 439, 49 Am. Rep. 328; In re Ward's Will, 70 Wis. 251, 35 N. W. Rep. 731, 5 Am. St.

STREET RAILROADS-CONTRIBUTORY NEGLIGENCE OF PASSENGER RIDING IN A PLACE OF DANGER.-The electric street railway may be the juggernaut of modern times, but it is not always ruthless in the injuries which it occasions nor indeed always at fault. The prejudices of the injured passenger often blinds him to the fact that his own gross negligence bas contributed most proximately to bis injury. In the recent case of Neiboer v. Detroit Electric Railway, 87 N. W. Rep. 626, the Supreme Court of Michigan held

Rep. 174; Roane v. Hollingsbead, 76 Md. 369, 25 prisoners confined in that institution, and comAtl. Rep. 307, 17 L. R. A. 592, 35 Am. St. Rep. mit such custody to some other officer, to be 438; Webb v. Jones, 36 N. J. Eq. 163; In re Tul selected by that body? We think tbis question ler's Will, 79 Ill. 99, 22 Am. Rep. 164.

must be answered in the negative. As was said The court in the present case, however, while by Cole, J., in State v. Burnst, 26 Wis. 412, 7 Am.' recognizing the above rule insists that such legis. Rep. 84, if the legislature can do this, no reason lation cannot be held to repeal a positive statute can be perceived why it may not also strip the declaring that a will made by an unmarried wo office of every other power, duty, or function man sball be deemed revoked by her subsequent which pertains to it, and leave to the electors of marriage. The court is upheld in tbis conten the state only the privilege of choosing an officer tion by the following authorities: Loomis v. who would be sheriff in name, but with no power Loomis, 51 Barb. (N. Y.) 257 ; In re McLarney's to perform any of the duties or exercise any of Will, 153 N. Y. 416, 47 N. E. Rep. 817,60 Am. St. the functions belonging to tbat office. The Rep. 664; Swan v. Hammond, 138 Mass. 45, 52 case cited, as well as Warner v. People, 2 Am. Rep. 255; In re Fransen's Will, 26 Pa. 202; Denio, 272, 43 Am. Dec. 740, People v. Keeler, In re Craft's Estate, 164 Pa. 520, 30 Atl. Rep. 493. 29 Hun, 175, and Allor v. Wayne Co., 43

The reason for the rule announced in this case Mich. 76, 4 N. W. Rep. 492, support the concluis well stated in the case of Brown v. Clark, 77 sion which we have reached upon this point. The N. Y. 369, where Mr. Justice Andrews, in discuss only case to which we have been referred, or ing the identical question bere involved, says: which we have found, supporting an opposite "It is quite consistent that the legislature should conclusion, is State v. Dews, R. M. Charlt. 443, have intended to leave the former statute in force, which holds that a sheriff is entirely a ministerial although the new statutes took away the reason officer, whose province is to execute duties preupon wbich it was based. The legislature may scribed by law, and which duties may be conhave deemed it proper to continue it for the rea tracted, enlarged, or transferred at the will of the son that the new relation created by the marriage legislature. It is enough to say, with respect to would be likely to induce a change of testamen this case, that the reasoning of the opinion does tary intention, and that a disposition by a mar not commend itself to us. We conclude, thereried woman of her property by will should de fore, that the various statutes which have been pend upon a new testamentary act after the mar referred to, so far as they deprive the sheriffs of riage."

the custody as the common jail of their respectSHERIFFS AND CONSTABLES-CONSTITUTIONAL

ive counties and of the prisoners confined therein, RIGHT OF SHERIFFS TO CUSTODY OF PRISON

and place it in the hands of board of freeholders, ERS.-A recent statute of New Jersey provided

are inoperative and void." that the charge and keeping of county jails and custody of the prisoners therein should be trans

CONFLICT OF LAW AS TO SALE OF ferred from the sheriffs to certain board of chosen freeholders. Although the statute providing for

LIVE STOCK IN ONE STATE HELD the election of sheriff did not specify his duties,

UNDER CHATTEL MORTGAGE IN it will be observed that such a statute practically ANOTHER. releases that officer of his most important duties

From an early stage of civilization chattel as generally understood. The Supreme Court of New Jersey had occasion to pass upon this stat.

mortgages have been an important medium ute in the recent case of Virtue v. Board of Free of security for the payment of money, and holders, 50 Atl. Rep. 360. It was held contrary they are at the present day the most availto the constitution on the ground that thefframers able means whereby very large and very of the constitutions of 1776 (article 13) and of 1814,

valuable classes of personal property may be providing that the inbabitants of each county should “annually elect one sheriff,” witbout pre

pledged for a present or future debt or scribing in express words the duties which should turned to secure one about to be lost. The attach to the office, must be presumed to have genius of these instruments, and the rules of known the duties which had theretofore apper law and common sense pertaining to them, tained to the office, and to have intended that the

are neither occult nor esoteric, not hidden and designation of the office eo nomine should carry such duties with it; and the office of sher

mysterious, nor unintelligible to any busiiff, with its common-law duties, having been

ness man who will give them some attention. continued by the colonial and state constitutions, The whole subject cannot be covered, of and a part of such duties being the custody of course, in the limits of a paper like this. I shall the county jail and of the prisioners confined

confine this paper, therefore, largely to mattherein, tbe statute interfered with the constitu

ters growing out of the live stock industry, tional rights of that officer. The court said in part:

though most of what I shall say applies with “Can the legislature detach from the office of equal force to other species of personal propsheriff the custody of the county jail and of the

erty.

« ПретходнаНастави »