Слике страница
PDF
ePub

Abstracts of Recent Decisions.

CARRIERS INJURY TO PASSENGER RUNAWAY HORSES-PRESUMPTION OF NEGLIGENCE.-In Budd v. United Carriage Co., 35 Pac. Rep. 660, which was an action against a carrier, operating coaches for injuries to a passenger, the Supreme Court of Oregon holds that evidence that the horses ran and kicked and that the driver lost all control over them,

raises a presumption that defendant, in disregard of its duty, provided wild and unsafe horses and a careless and incompetent driver; and also holds that such carrier is not relieved from liability for an injury caused by driving a team over an unsafe road by showing that the injured passenger directed him to drive over such road.

CARRIERS OF PASSENGERS FAILURE TO STOP AT STATION. -- It is a "just and legal excuse " for not stopping at a station to let off three passengerslaborers who had been drinking--that it was after dark, the snow was deep and drifting, that, as the engineer and conductor knew, a freight train was close behind, and the only place near the station where they could stop without danger of being stalled by the snow was on a bridge and elevated track. Reed v. Duluth, S. S. & A. Ry. Co. (Mich.),

59 N. W. Rep. 144.

CARRIERS. -Employees on a street car have a right to assume that a passenger, in alighting from the car in broad daylight, will notice an excavation in the street, caused by the removal of paving blocks; and the company is not chargeable with negligence because they stop ped the car near the excavation, or because they failed to caution the passenger as to the condition of the street. Bigelow v. West End St. Ry. Co. (Mass.), 37 N. E. Rep. 367. CONTEMPT OF COURT - ERRONEOUS ORDER. It is no excuse for contempt of any order of court that the order is founded on error of law or fact. The error must be questioned by direct proceedings to review the order, not by disobedience. Forrest v. Price (N. J.), 29 Atl. Rep. 215.

CORPORATION

APPOINTMENT OF RECEIVER.

Where funds of a corporation were attached by plaintiffs, and subsequently a bill for a receiver was filed, and a receiver appointed, and the funds were paid over to the receiver, by order of court, without prejudice to the rights of attaching parties, the claims of plaintiffs, if allowable to be proved, should be preferred, to the extent of the property attached. Page v. Supreme Lodge, Knights and Ladies of Protection (Mass.), 37 N. E. Rep. 369.

[blocks in formation]

stabbed him are admissible as part of the res gestæ. Commonwealth v. Werntz (Penn.), 29 Atl. Rep. 272. JUDGMENT AUDITA QUERELA. A judgment debtor who has been compelled to pay the judgment by the assignment thereof cannot maintain audita querela to recover the amount so paid against the judgment creditor, who had nothing to do with the enforcement of the judgment, and who received nothing thereunder. Radcliffe v. Barton (Mass.), 37 N. E. Rep. 373.

NEW TRIAL-OFFER TO BRIBE JUROR.--The fact a juror was offered a bribe by a person not an agent of the prevailing party, it appearing from the juror's affidavit setting out the fact that he was not influenced thereby, is not ground for a new trial. Clay v. City Council of Montgomery (Ala.), 14 South. Rep. 646.

SPECIFIC PERFORMANCE.-A deed which has been delivered in escrow pending the fulfillment of the contract of purchase is not the basis of an action to enforce the specific performance of the contract, since a deed cannot be itself the contract for its own execution.-Davis v. Talbot (Ind.), 36 N. E. Rep. 1098.

TRESPASS TO REALTY-TELEPHONE COMPANIES— MUNICIPAL CORPORATIONS.—A telephone company, invested with the power of eminent domain, and authorized by law to erect poles and stretch wires through the streets of a city, was required by ordinance to remove its poles and wires from a street to the adjoining sidewalk. In doing so, it was necessary to trim certain trees, and this was done by the servants of the company, under the direction of a city officer. Held, that the company was not liable therefor to an action of trespass by the owner of the trees, since the act was done under lawful authority. Southern Bell Telephone & Telegraph Co. v. Constantine, U. S. Cir. Ct. of App., 61 Fed. Rep. 61.

VENDOR AND PURCHASER EASEMENT.

[ocr errors]

INCUMBRANCE BY

A grantee of land which is incumbered by a right of. way or other easement takes it burdened with such incumbrance, and will not, as a rule, be entitled to recover damages therefor. Chicago, R. I. & P. Ry. Co. v. Shepherd (Neb.), 58 N. W. Rep. 188.

WATER-COURSE — DIVERSION. A natural depression in the soil, down which surface water flowed in a state of nature, forming swamps in places, and carrying water the greater part of the year, and into which a flowing well was afterward drained, insuring a flow of living water at all seasons of the year, is a water-course; and an upper riparian owner will be enjoined from diverting the flow of the water at the suit of a lower owner. Rummell v. Lamb (Mich.), 59 N. W. Rep. 167.

[blocks in formation]

notice to appear before the presiding judge of the court at a specified time, whether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled, and that at the time appointed the judge must settle and sign the bill of exceptions.

By section 460 the time for preparing the bill of exceptions and the amendments thereto, or for settling the same, may be enlarged by consent of the

SMYTH, Recorder. The defendant was convicted of the crime of criminally receiving stolen property on the 21st of March, 1894, and was sub-parties or by the presiding judge or by a judge of section 461 provides that if the bill of exceptions be the Supreme Court, but by no other officer; and not served within the time prescribed in section 468, or within the enlarged time therefor, as prescribed in the last section, namely, 460, the exceptions are deemed abandoned.

sequently, on the 30th day of March following, sentenced to imprisonment in the State prison for the term of one year and six months.

No motion was made on his behalf after the rendition of the verdict in arrest of judgment or for a new trial, and no bill of exceptions was proposed or settled at the trial, nor has any bill of exceptions been even prepared or served upon the district attorney up to the present time, nor was the court applied to to extend the time to prepare and serve a bill of exceptions, nor has the time been enlarged to do so by consent of the parties.

[ocr errors]

The defendant now moves for an order granting him ten days from the entry of said order" in which to serve his proposed bill of exceptions herein, and such further other relief as to the court may seem just.

Section 455 of the Code of Criminal Procedure provides that exceptions may be taken by the defendant to a decision of the court upon a matter of

The defendant has failed to comply with the provisions of any of the sections above cited, and no proper or reasonable excuse has been presented for his not doing so. It seems to me therefore that as the bill of exceptions was not presented on the trial nor within five days thereafter, and the time for preparing it has not been enlarged by consent of the parties or by the judge who presided at the trial, this motion must now be denied.

FACTS ABOUT THE UNITED STATES
SUPREME COURT.

law by which his substantial rights are prejudiced, TH

and not otherwise, in any of the following cases:
1. In disallowing a challenge to the panel of the
jury.

2. In admitting or rejecting testimony on the

THERE have been fifty-nine judges of the Supreme Court of the United States since its establishment in 1789. There have been eight chief

justices. Jay of New York, Rutledge of South

Carolina, Elsworth of Connecticut, Marshall of Vir

trial of a challenge for actual bias to any juror who gitia, and Taney of Maryland, before the close of

participated in the verdict, or in allowing or disallowing such challenge.

3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.

Section 456 provides by whom the exceptions are to be settled and how filed, and section 457 provides that the bill of exceptions must be settled at the trial unless the court otherwise directs. If no such direction be given, the point of the exceptions must be particularly stated in writing and delivered to the court, and must be immediately corrected or added to until it is made conformable to the truth; and by section 458 it is directed that if the bill of exceptions be not settled at the trial, it must be prepared and served within five days thereafter upon the district attorney, who may within five days serve upon the defendant or his counsel the amendments thereto. The defendant may then, within five days, serve the district attorney with a

the civil war (all eastern men), and Chase of Ohio, Waite of Ohio, and Fuller of Illinois (all western men), since. All the early chief justices came from seaboard States. Massachusetts, which has enjoyed other civic honors under the government, has never had a chief justice of the United States Supreme Court. Two judges served thirty-four years each— Marshall of Virginia and Story of Massachusetts. Delaware and Vermont of the original States and Indiana of the new States never had a judge in this court. Louisiana never had a judge until President Cleveland appointed Senator White. New York has had a judge on the bench since 1845, but has one no longer, Mr. Cleveland having appointed a Louisiana man to the vacancy on the New York circuit.-New York Sun.

The validity of calls made a British corporation for unpaid stock is to be determined by the British law. American Pastoral Co. v. Gurney, U. S. C. C. (Mo.), 61 Fed. Rep. 41.

The Albany Law Journal.

ALBANY, SEPTEMBER 1, 1894.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.}

A the recent meetin J. of ewton Fiero, at the T the recent meeting of the American Bar

request of several prominent members of the association, moved that the president appoint

a committee to investigate into the expediency of a scheme for uniformity in legal reporting, and to recommend a remedy for existing difficulties. Mr. Fiero, in his report to the New York State Bar Association in 1892, recommended the uniformity of reporting decisions, which was adopted by the publishers of the present official series of reports of the State of New York. It is therefore peculiarly fitting that Mr. Fiero should have been appointed one of the members of this committee to act

practically in relation to reporting the decisions of the courts of the different States which is yearly becoming more burdensome to the profession because of the greater and increasing volume of reports. The committee as appointed consists of Mr. Fiero, Hon. Francis Rawle, of Philadelphia, Hon. John F. Dillon, of New York, Edward Otis Hinkley, of Baltimore, and W. E. Talcott, of Ohio. The result of the labors of this committee will be watched with keen interest by the members of the bar of this and every State.

In a recent issue of the LAW JOURNAL we commented on the decision of Lemmon v. Webb, as recently decided in England, where the question determined was whether a party had a right to cut the overhanging branches of a tree belonging to an adjacent owner without notice

to him. In that case the matter of Crowhurst v. Burial Board of Amersham was cited as the

by eating the leaves of the ewe tree which grew upon the land of the defendant joining the plaintiff's field, and no part of which tree grew over the plaintiff's land, although some of the branches could be reached by the horse stretching its neck over a ditch which belonged to the defendants, and which divided their land from the plaintiff's. The Crowhurst case and the one under consideration were similar in facts except in so far as the position of the ewe tree in relation to the line between the lands of the parties

was concerned. The defendant in the Crowhurst case was held liable because he maintained a poisonous tree in such a position that

its branches extended over the land of the plaintiff, while in the present case the branches were quite a distance from the boundary line, although not separated from the plaintiff's property by a fence. Judge Charles, in writing the opinion, says that it is urged on the appeal that the tree was something in the nature of a nuisance, and that the growing of this ewe tree so near the boundary was actionable in case damages resulted.

In the matter of Townsend

v. Wathen, 9 East, 277, it was held that a man who placed traps baited with flesh on his own. ground so near the premises of another that dogs kept on his neighbor's premises must probably be attracted by their instinct into the traps and be injured by them, is liable. But in the present case the plaintiff was bound to keep his horse from his neighbor's land, and there was no duty on the defendant to take precautions as if the tree were a nuisance. Judge Collins, in writing his opinion, also holds that the planting of the tree near the boundary line, although not extending over it, does not constitute a trap, and that the person maintaining such a piece of property is not liable to a stranger for loss happening to his property. Undoubtedly if a ewe tree were regarded as a trap or nuisance the law would be that the owner must maintain a protection against it, while in the present case he need only take such measures as will maintain the tree wholly on his land, and in a position where it will not annoy or disturb those who must necessarily

use the adjoining property.

leading authority, as it is also in the action of Ponting v. Noakes et al., recently decided by the Queen's Bench Division in England. The latter action was brought to recover damages An interesting and novel decision has been for the death of the plaintiff's horse which died I determined by the General Term of the Third VOL. 50- No. 9.

Department, in the matter of Springfield Fire & Marine Ins. Co. v. Village of Keeseville. The action is brought by the insurance company, who had paid the party insured a sum greater than the plaintiff clains it would have been if the defendant had supplied sufficient water to extinguish the fire. The plaintiff alleges that it is a fire insurance company licensed to do business within this State; that it has paid an annual tax to the defendant for the privilege of having the protection of its water-works, its fire department and its appliances, and that the insured has assigned all her rights against the defendant to the company. The plaintiff also claims that the excess of damages caused by the fire, over what would have resulted if the defendant had furnished an adequate supply of water is the sum of $4,150, and that the defendant had wrongfully and negligently allowed and caused its water-works, pumps, pipes and fire appliances to be and remain out of repair. The question comes up on a demurrer; all the facts are therefore assumed and the most favorable construction is allowed in regard to the allegations of the plaintiff. The opinion holds that there are two functions of every city, one governmental, and the other a business power; that the former is given and used for public purposes, and in the exercise of those powers it acts as a municipal corporation; that the latter power is given for corporate purposes, and in the exercise of such power, it is like a private corporation or individual. This has been held in the case of Lloyd v. Mayor, 5 N. Y. 469; Maximillian v. Mayor, 62 id. 160; Ham v. Mayor, 70 id. 459. a governmental corporation it is not responsible for the acts of its officers or agents, and the maxim respondeat superior does not apply. But in the exercise of its other functions it is responsible for its omission to perform its corporate duties to the same extent as a natural person would be under the same circumstances. Conrad v. Ithaca, 16 N. Y. 158; Platts v. City of Cohoes, 89 id. 219.

As

Judge Herrick, who writes the opinion, holds that supplying water is not a necessary public function of a city, but is merely a matter of private business, citing Long Island Water Supply Co., 30 Abb. N. C. 36, and asserts that the public has no interest in this function of the municipal government to furnish water

since individuals must pay for the water supplied them. The distinction is clearly drawn between the liability of the city for the negli gence of its fire department in contra-distinction. to its water-works. Any city which receives rents for supplying water may have absolute control over the action of its employees connected with the water-works, and can employ and discharge them at pleasure. The State does not make it a duty of any municipal corporation to provide and maintain water-works for the benefit of its citizens, though each city usually has control over supplying of water. The judge says that municipal corporations would use a greater degree of care and diligence if they were held responsible to the citizens for their negligence in matters respecting their private corporate existence, and maintains that the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, for the doctrine has been frequently reiterated in the Court of Appeals that there is no absolute guarantee or undertaking on the part of the municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance, and that to create liability there must be willful misconduct or culpable neglect. Hunt v. Mayor, 109 N. Y. 135; Danaher v. Brooklyn, 119 id. 241. In the case under discussion the plaintiff's assignor was prevented from using the water that she was entitled to, that she had paid to receive, and that the defendant had impliedly at least contracted to furnish. Negligence in maintaining the water-works was therefore a breach of the contract and the city was liable for any damages resulting therefrom in the same degree as an individual would have been. A city when it contracts to furnish a supply of water does not act as an insurer, for its duty is only to use ordinary care and diligence in perforining this function, and its liability is the same as a business corporation which had employed incompetent men, or by its negligence had to carry its contract with an individual for which it would be liable for resultant damages. The municipality had gone into supplying water as a business and had conducted that for its own benefit, and it would seem therefore that the defend

ant is liable for a breach of its contract, not acting as a governmental corporation in the discharge of its duties as such, but as a business corporation. The right of the plaintiff to sue is necessarily the important question in the action, and arose from privity of contract growing out of the assignment by the insured to the plaintiff of all her rights against the municipality. The insured had paid water taxes and they were paid undoubtedly partly in consideration of the defendant's supplying her with water in case of fire on her premises. The plaintiff acquired the right of action and privity of contract with the defendant by reason. of this assignment even though the license paid by the plaintiff to do business in the municipality carried with it no right to have the buildings of the persons it insured supplied with water in case of fire.

any of the pictures made by the defendants' agents from the tableaux vivans. The plaintiff complains that his copyright, under the international act, has been infringed by the reproduction of these pictures in the Daily Graphic, and he desires to have the defendants restrained from further infringing on his copyright.

The claims made by the defendant were: First, that the plaintiff was not registered as the proprietor of the copyright in question; second, that assuming him to be entitled to the copyright in the pictures, the extent of that right must be determined by the German law and not by the English law; and third, that what the defendants have done was not an infringement of the plaintiff's copyright even according to the English law.

The necessity for registration is not decided by the court, but it is held that the plaintiff is restricted to his rights under the German Copyright Law, and the decision turns on the question as to whether the reproductions are in

The determination of this case by the Court of Appeals will be watched with great interest and we cannot see why any municipality contracting to supply water for certain known pur-fringements. The facts are not contradicted poses is not liable for a defective supply causing damage to the party who has contracted for such water and for the negligent maintenance of any part of the city's machinery which is not used for governmental purposes.

The English Court of Appeals, in the case of Hanfstaengl v. Empire Palace Limited et al., has decided a most important case under the Copyright Law. The defendants were the proprietors of certain newspapers and sent artists to a theatre of varieties to make sketches of tableaux vivans, from which drawings were made which were published in the defendants' newspapers. The idea of the living pictures was taken from certain paintings made in Germany by foreign artists, the copyright in which was the property of the plaintiff and the production of these "tableaux vivans" had been decided by the Court of Appeals not to be an infringement of the plaintiff's copyright. The drawings in the newspapers of the defendants were rough and incomplete and did not represent any of the artistic merits of the plaintiff's pictures, as they merely conveyed a rough idea of the subjects and the grouping of their main

features.

The plaintiff applied for an injunction restraining the defendants from the publication of

that the defendants sent artists to make rough sketches of the tableaux vivans, and that these drawings were made without the use of any photograph or imitation of the plaintiff's paintings except that the tableaux vivans themselves were arranged after photographs made from the German pictures. The protection of authors, whether of inventions, work of art, or of literary compositions, is the object to be attained by all patent and copyright laws. The acts are to be construed with reference to this proposition. On the other hand, care must always be taken not to allow them to be made instruments of oppression and extortion. It is on such considerations as these that fair reviews of literary works, although containing lengthy extracts from them, are not infringements of the copyrights in them. Moreover, the intention of an infringer is immaterial if he copies more than is fair so that his copy may be used as a substitute for the original, as in the case of Ronorth v. Wilkes, 1 Camp. 94, although in doubtful cases the extent to which the copying has been done and the object sought to be attained by the copies complained of are matters which must be considered. Bradbury v. Hotten, 27 L. T. Rep. (N. S.) 450; Scott v. Stanford, 16 id. 51. The extent of copying, and the degree of resemblance between the original and the copy

« ПретходнаНастави »