to which jurisdiction, by legal proceedings, bas first attached, is entitled to proceed therein without interference by another court. This rule applies as well between State and Federal courts as between courts of the same State; e. g.; If a U. S. Marshal seize property under an attachment issued out of the Federal court, and a claimant of said property sue in replevin in a State court, the Marshal may justify by pleading the attachment. The remedy open to the claimant is to intervene in the attachment suit. Parks v. Wilcox, S. C. Colorado, Spring T. 1883: 4 Colorado L. Rep. 49. 9. JURISDICTION - TRIAL BEFORE ONE NOT A JUDGE. Parties to a litigation cannot by agreement confer jurisdiction to try a cause upon one not a judicial officer authorized by law to hold the Court, and when this appears in the record to have been the case, the cause must be sent back for trial. This without commending the moral conduct of the party who takes advantage of the result. Haverly Invincible M. Co. v. Howcutt, S. C. Colorado Spring T. 1883; 4 Colorado L. Rep. 62. 10. LANDLORD AND TENANT-LAND LET ON SHARES -EXECUTION SALE OF CROP. Where Land is let to a tenant on shares the interest of the landlord in the growing grain cannot be seized and sold on execution before severance so as to pass a good title thereto as against a purchaser at sheriff's sale of the land. Long v. Leavers, S. C. Pa., May 25, 1883; 40 Leg. Int. 359. 11. NEGOTIABLE PAPER-NOTE OF STOCK COMPANY-ENDORSEMENT. Where by a resolution of a stock company a promissory note is issued to pay an indebtedness of the company, the note being signed by the treasurer and endorsed by the directors as such, and afterwards the paper is taken up by one of them, this is nothing more than an advancement by him in behalf of his co-obligors, and entitles him to a contribution for the money thus advanced; he cannot pick out one of the endorsers and charge him with the whole liability, as in the case of an ordinary endorsement. Middleton v. McMurtrie, S. C. Dist. Columbia, 11 Wash. Rep. 593. 12. TRUSTS - SALE BY TRUSTEE TO CESTUI QUE TRUST-INVESTMENT-ADVICE OF COUNSEL. 1. A trustee furnished goods from his own store to a married cestui que trust, for the support of herself and family, at less than current prices in the neighborhood. Held, that the amount of such sales was a lawful charge in his favor, especially as the instrument creating the trust provided for the application of the principal to the support of cestui que trust and her family, upon order of the court. 2. The fact that a trustee made imprudent investments of the trust fund, upon the advice of the husband of the cestui que trust, will not excuse him. 3. Advice of counsel will not protect a trustee in the doing or omission of acts not warranted by, or in violation of, his trust. Cogbill v. Boyd. S. C. App. Va.; 11 Wash. Rep. 600. v. Sheedy, S. C. Pa., May 21, 1883; 13 W. N. C. 391. 4. CORPORATION-CONSTRUCTION OF CHarter. Corporations take those powers which are conferred upon them by the Legislature and nothing more; the charter of a corporation must be construed liberally as to the public and strictly to the grantee; a power in an act of incorporation to take and use such lands, water and materials, as may be necessary to construct and maintain the proposed works," does not carry with it a grant of a right to take the fee in land thus occupied. Pittsburg, etc. R. Co. v. Brice, S. C. Pa., 1888; 40 Leg. Int. 358. 5. HUSBAND AND WIFE-JOINT PURCHASE OF NECESSARIES-PRESUMPTIONS. A joint purchase of necessaries by husband and wife is regarded in law as the contract of the husband alone, and while book entries, charging the goods to them jointly, are presumptive evidence of a sale on his credit, they are not conclusive of that fact. It may, nevertheless, be shown that they were purchased by the wife and on her credit. Hoff v. Koerper, S. C. Pa., May 7, 1883; 40 Leg. Int. 359. 6. INSURANCE, FIRE-WAIVER OF CONDITION AS TO OCCUPATION. An agent who had power to insure unoccupied buildings issued on such a building a policy which stipulated that it should be void if the building should become unoccupied without the consent of the company indorsed. The premium paid was appropriate to a case of unoccupied property. The agent knew that the building was unoccupied but neglected to indorse the policy. The company never offered to return the premium paid. Held, that the company had waived the condition of forfeiture and was liable on the policy. Haight v. Continental Ins. Co., N. Y. Ct. App., March 27, 1883; 16 Rep. 376. 7. JUDGMENT-AGAINST DISCHARGED BANKRUPT— BINDING ON WHOM. 1. It is well settled that if a person who has been adjudicated a bankrupt, and has received his discharge in bankruptcy, thereafter suffers a judgment to go against him upon a debt properly provable in bankruptcy, he is bound by such judg ment, and so are all others claiming under or through him as parties or privies. 2. When A sold to B one-half interest in certain land in 1860 and the other half in 1867, and B sold the same to C in 1868 and C sold it to the administrator of A in 1877, and where it appeared that in 1875 a decree was had by a creditor of B, to which C was a party, and by said decree the said sale from B to C was set aside, and where upon a levy being made on the land to satisfy the claim of such creditor, the administrator of A put in a claim alleging that B had not paid A for the land, and that the deed made by B to C was really made to C as agent for A to satisfy said debt for unpaid purchase money. Held, that A was concluded by the decree mentioned, since, according to the claim, his agent was a party thereto; if the facts stated in the claim are true, C was the trustee of A and represented him in the proceedings upon which the deeree was rendered. Smith v. Cook, S. C. Ga., Sept. 18, 1883. 8. JURISDICTION-CONCURRENT JURISDICTION OF STATE AND FEDERAL COURTS. Where different courts have concurrent jurisdiction 13. WILL-LIFE TENANCY-SUPPORT OF FAMILY. shall have full and entire control of all my effects GENERAL LEGAL MISCELLANY. of wbatever kind." The widow presented her bill, alleging that the testator left six minor children, and that the income of the property would LORD COLERIDGE IN ST. LOUIS. not support them and asking that she be allowed to sell it, or a part of it, for the support of herselt Lord Coleridge is certainly a wonderfully good and family. The court held that there was no talker. At the reception tendered him by mempower of sale in the will and refused the prayer of bers of the St. Louis bar, at the St. Louis Club the bill. This construction of the will was prop- IIouse on Friday evening last, he made a response er, but the refusal of the prayer of the bill was to an elegant little address of welcome by Judge erroneous. The life tenant can waive her life estate in the property, which would vest the entire Treat, of the United States District Court, which estate in the children, and the court could then absolutely charmed all hearers by its appropriateorder a sale of so much of the property as was ness, modest dignity and happy delivery. The necessary for the purposes desired. The court following is the response in full: could hear evidence of the probable value of the Your Honor and Gentlemen of the St. Louis life estate of the widow and decree to her such Bar: Before I say anything in reply to this very sum as would be equal thereto, and could by proper order protect the remainder for the benefit noble address at the hands of his Honor, to which of the children, or decree that it be turned over I have just listened, permit me to apologize to you to them or to guardians for such as are minors. If if I have kept you waiting. I assure you that it the ordinary could order such a sale (code 1824), was nothing but the charms of St. Louis society, so can the Superior Court, in this proceeding, if and my ignorance of the time at which this meetthe bill be amen led so as to allege the willingness ing had been appointed, which has led me to deof the life tenant to surrender her life estate, and set forth specifically the property constituting the tain you, if detain you I have. estate. Rakestraw v. Rakestraw, S. C. Ga., Sept. Now, gentlemen, do let me say that I thank 18, 1883. you exceedingly for the address wbich his Honor has been pleased to read. I thank you individually and as a man for the kind personal expres sions toward myself which that address contained. RECENT LEGAL LITERATURE. I thank you still more as a judge and as a lawyer for the enunciation of those true and only prin ciples upon which, in my judgment, those who SIXTEENTH FEDERAL REPORTER.-Cases Argued and Determined in the Circuit and District have to expound the common law should be guided Courts of the United States, June-July, 1883. in the administration of jurisprudence which unRobert Desty, Editor, St. Paul, 1883: West derlies it. Publishing Co. For myself, accustomed as I have long been to Probably the most interesting case, In some re- the criticism of English writers, I have some diffispects, contained in this volume is Woodruff v. culty in recognizing in the far too flattering porNorth Bloomfield Gravel M. Co., from the Circuit trait given in this address, any traces of the feaCourt of the District of California, commonly tures of the original with which I have been so known as “The Debris Case.” Although turning | long familiar in the severely truthful mirror of upon a question of parties, its facts are aptly il- English newspapers. (Laughter.] But the truth lustrative of the way in which principles of law, obliges me to say that, as we all know, distance in the course of their progress and growth, adopt lends enchantment to the view; and as the Engthemselves to new circumstances as they arise. lish portrait painters are much nearer to their subThe facts which are a little peculiar grew out of ject, so it is tolerably certain-especially as one the process known as “hydraulic mining.” Sev- knows that from their omniscience anything like eral parties owning extensive mines at various error, anything like personal prejudice, anything points on the atlluents of the Yuba river, work like hard feeling is, from the necessity of the case, them independently of each other by the hydrau- uniformly absent [laughter]-it is quite certain lic process, discharging their waste earth and that the English portrait will be more correct than other debris into the stream, whence it flows the American. (Laughter.] down into the main river where the debris be. I can only say sincerely that I am not aware cones mingled into one indistinguishable m 133, that I have risen in our common profession by passes on and is deposited along the course of the any dishonorable art [applause], and I can truly river in the valley burying valuable lands and say that I have devoted the best of those poor creating a public and private nuisance. Ii was powers which alone I can command to the disheld that a bill in equity by a party injured charge of the many complicated and most imporagainst all the parties thus contributing to the tant duties of the high office which it is my lot to nuisance to enjoin it is not demurrable as being fill. multifarious or for a misjoinder of parties. Such But, passing away from this very unimportant parties may be joined in equity because they act. and unworthy subject to the more general and far ually contribute to the result, the injury being the more important topics which you have touched action of the debris, combined long before it upon in your address, do let me say that I really reaches the place of injury, and also on the cannot express adequately how much I sympathize ground of avoiding a multiplicity of suits. and agree with you, that law grows; that, while its principles remain unchanged, the application mischief, must be very able and rather good. of them must change with changing time. That [Laughter.] the English common law is as broad as the race, But the common law, happily, has survived as various and elastic as the various people of these dangers. It has survived to guard our freewhich that race is composed, and that it is, in its dom with its own great majesty. It has survived wisdom and profundity, as inexhaustible as our to be one amongst the many links which I hope language, these things I earnestly believe, am bind England and America indissolubly together. thoroughly convinced of. This is the theory that [Prolonged applause.] England is in a certain from time to time I have sought to maintain in sense the mother, and America is the child. argument and exemplify in practice. [Applause.] And the mother, like other mothers, But, gentlemen, our common law has had great suffered many pangs and much sorrow at the birth dangers to meet and overcome. The wise and of her child. [General applause and laughter.] broad liberality of Lord Holt and Lord Mansfield But now all those have passed away, and “she would have antedated many of those salutary knoweth no more sorrow,” for the joy and the changes which are now embodied in the law, had pride with which she looks upon the greatness and it not been for the narrow and unbending learn- the glory of what she has brought forth. [Loud ing of Lord Kenyon and Lord Eldon, which post and continued applause.] poned them for nearly a century. And in the same way the broad and manly sense of the Judges DICTA. of the Queen's Bench and of the Common Pleas, Prof. Gray in his volume on Restraints on in the times of Lord Denman and Lord Campbell, Alienation makes the following remarks on Obiter were overborne and crowded out and overruled by Dicta: That a Judge should not occasionally let a great lawyer indeed, but a man of the most nar- fall a remark not strictly necessary to the decision row technicality, who, when he was young, dom- of a case, is neither possible nor desirable; but of inated Westminster Hall with the most despotic elaborate statements, confessedly uncalled for to sway. I mean Baron Parke, who was afterwards determine a cause, and confessedly made to foreknown as Lord Wensleydale. He was a man who stall opinion on a matter not in judgment, there used to rejoice in non-suiting the plaintiff in an have been, it is believed, before Nicholas y. Eaton undefended cause, (Laughter), that is to say, do- (91 U. S., 716) and since Marbury v. Madison (1 ing what by the very nature of the case was injus- Cranch, 137), but two cases in the history of the tice. He resisted with the utmost of his ability Supreme Court. They are worth noting. From the very slightest attempts that were made to 1842 to 1844 a controversy had been going on beallow amendments in the pleadings. For, said tween the Superior Court of New Hampshire and he, “Good heavens! Think of the state of the Judge Story, sitting as Circuit Judge in the First record.” [Laughter.] That is, he thought of Circuit. The latter claimed, and the former dethe parchment. The clients nothing. nied, the rights of the courts of bankruptcy to [Laughter.] And he set himself deliberately to enjoin proceedings in the state courts, and to didestroy and defeat the intentions of the English rect the sheriff to deliver property attached in a Parliament in 1852 and 1854, to introduce some- state court to assignees in bankruptcy (Ex parte thing of an equitable breadth and freedom into Foster, 2 Story, 131; In re Cook, Ib., 376; Kittour common law procedure as it existed at that redge v. Warren, 14 N. H., 509; In re Bellows, 3 time, and he succeeded. I should be sorry to Story, 428; Everett v. Stone, ib., 146; Kittredge v. think that this was a fair description of every- Emersun, 15 N. II., 227). In 1844 the Supreme thing existing at that time, but I remem- Court of the United States was moved to issue a ber great and esteemed lawyer-) do writ of prohibition to a District Court sitting in not know whether his has reached bankruptcy. The Court was unanimous against this side of the Atlantic in the honor and distinc- the right to issue the writ; but Judge Story, who tion it should, I allude to Mr. Justice Maule, one delivered the opinion, embraced the opportunity of the most powerful intellects I ever knew, and at to reaffirm the opinions on the power of the Bunkthe same time a man who was certainly gifted ruptcy Courts which he had maintained on cirwith a slight turn of friendly satire. I remember cuit (Ex parte Christy, 3 How., 292). Mr. Justice once hearing him say in court to a gentleman of Catron protested. That the Supreme Court, he the bar who was arguing, “Well," he said, “that said, has no jurisdiction “to review the proceedseems a horror in morals and a monster in argu ings of a Bankrupt Court is our unanimous ment. Now, the case in Meeson & Wellsby that opinion. So far we adjudge, and in this I concur; lays it down is the law.” (Laughter.] but a majority of my brethren see proper to go I do not want to say a single word against the further, and express their views at large on the moral worth nor the intellectual force of these jurisdiction of the Bankrupt Court. In this men. They were learned men, and men of ex- course I cannot concur. Perhaps it is the retraordinary power; men who, if they had not had sult of timidity, growing out of long-estabthat extraordinary power, could not have done lished judicial habits in Courts of error elsewhat they did; because I have learned what you where, never to haz ird an opinion where no case know, that in literature, in morals and politics, was before the court, and when that opinion might in anything that you please, a man, to do much be justly arraigned as extra judicial and a mere were a Hame were dictum by courts and lawyers, be partly disregarded wbile I was living and almost certainly be denounced as undue assumption when I was no more—a measure of disregard awarded with an unsparing hand here and elsewhere to the dicta of State Judges under similar circumstances; and it is due to the occasion and myself to say that I have no doubt the dicta of this court will only be treated with becoming respect before the court itself, so long as some of the judges who concurred in them are present on the bench, and after· wards be openly rejected as no authority-as they are not” (p. 322). The words were prophetic. The next year Judge Story died. The Superior Court of New Hampshire entirely disregarded his dicta in Ex parte Christy (Peck v. Jenners, 16 N. H. 516). The case was carried to the Supreme Court of the United States, and there, in 1819, the decision of the State court was unanimously onfirmed. Peck v. Jenners, 7 How. 612. The other instance in which the judges of Supreme Court, in delivering opinions, have indulged in elaborate dicta, confessedly uncalled for, is the Dred Scott case. 17 How. 393. The result of the cases does not augur well for the practice.-New York Daily Register. others also ? In our view, it is sufficient to set forth and clearly show in the statement, that the stock got upon the railroad or was killed at a point where the company bound by law to fence, and in consequence of "the failure to construct or maintain such fences or cattle guards' the stock were killed or injured. If our view is correct, then it is certainly not necessary, to make the averment as stated in the opinion, as the affirmative allegation of the one proposition, necessarily negatives the others. In support of the opinion in 76 Mo. supra, the court cites the case of Rowland v. St. Louis Iron Mountain & Southern Railway Company, 73 Mo. 619. On examination of the latter case, we find tbat the judgment therein, was reversed “because the amended statement does not set forth that the hogs got on the railroad or were killed in consequence of the failure to construct and maintain such fences or cattle-guards." The latter case was reversed because it did not contain a plain statutory requirement; the former, because it failed to allege something not required by the statute. Suppose that the stock were killed within the limits of an incorporated town, and that fact was not negatived in the statement, would it be anjust or unreasonable to hold it to be a matter of defence? If true, it could be easily proven, and if proven, would defeat the action. We have been taught to view with liberality the statements and proceedings in justices' courts; but the opinion in the 76 Mo. supra is an advance toward technical strictness not yet required of petitions in circuit courts. R. A. D. Trenton, Mo., Oct. 1st, 1883. CORRESPONDENCE. NOTES PLEADING INJURIES TO STOCK IN JUSTICES' COURT. Legitimate and respectful criticism, we believe, has always been held to be proper, even when ap. plied to a court of last resort. Adopting this view, we shall briefly direct attention to the case of Schulte v. The St. Louis, Iron Mountain & Southern Railway Company, 76 Mo. 324, wherein the court decide that a statement before a justice of the peace against a railroad company for killing stock to be sufficient under sec. 13 of tho railroad law, (sec. 809, stat. 1879) “must aver that the stock were not killed within the limits of an incorporated town.” Inasmuch as this is the only reason assigned for reversing the judgment, we will assume that the statement upon which the case was tried was suflicient in all other respects. It is held by the courts that a railroad company is not bound to fence its road where it runs through a town or city, nor at a station or depot, which public convenience requires to be kept open for the transaction of business and the receipt of freight and passengers, nor at public or private road crossings. Now, if it must be avered that the stock were not killed within the limits of a town or city, is it not also necessary to aver that the stock were not killed at a station or at a crossing of a public or private road? If the one must be stated, by what parity of reasoning or logic can a statement be held sufficient that fails to negative the other propositions? If it is absolutely necessary to negative the one, why not the -"Do you know the prisoner?” asked a Harlem judge of a witness. “Yes, sir, I do; I know him intimately; he and I were in a bank together at the same time.” “Ah, when was that?" was the question of a shrewd lawyer, who was counsel for the prisoner. “Well, as near as I can remem ber, it was five years ago, and about three o'clock in the morning; none of the bank oflicers were present at the time." The witness was speedily excused. - The following instructive incident in connexion with the trial of the late assassin, Guitean, bas been communicated to the Boston Advertiser: -P. J. Sheahy, who served as one of the jurors in the Guiteau trial, has become insane, and will be conveyed to an asylum. His ivsanity has been gradually developing ever since the banging of Gaitean, which event seemed to have a powerful effect on the mind that before that time never showed the slightest symptoms of weakness. Before the trial he frequently expressed the greatest repugnance to serving on a jury that was to try a man for his life, and after the trial he became morbid on the subject of being in part responsible for a hanging The Central Law Journal. want of ordinary attention to the rights of the ST. LOUIS, OCTOBER 12, 1883. CURRENT TOPICS. Last Monday was the first day of the October Term, 1883, of the Supreme Court of the United States. The number of cases upon the docket at that time was a trifle over 1000, or an increase of a little more than 50 cases over the number docketed at that time last year. In view of the rate of disposition of causes, heretofore attained, it is fair to presume that, at most, not more than 400 cases will be disposed of at the present term, and that at the adjournment next spring, the court will still be between 600 and 800 cases behind. It is much to be hoped that the evil of this state of affairs will sufficiently impress itself upon congress at the coming session, to bring about some practical measure of relief. The line that forms the limitation of the rule, allowing injuries to the feelings to be considered as an element of damages in actions for negligence, is so shadowy as not always to admit of its being plainly indicated by words. A recent decision of the Supreme Judicial Court of Massachusetts (White v. Dresser), turns upon a distinction, in actions for injuries to real property, based upon the use to which the property injured was applied. The defendant dug upon his own land, which formed the natural lateral sup. port of the plaintiff's adjoining land, so that some of the plaintiff's land and a stone wall upon it fell, and some trees which had been set out upon the land by the plaintiff were endangered. It was admitted that this, if done without malice or negligence, would be a wrongful act and entitle the plaintiff to damages for the injury to his land in its natural state. If done negligently, he could recover for injury to his land and to improvements and erections upon it. The court below ruled in effect, that if the defendant's viola. tion of the plaintiff's right of lateral support occurred through gross carelessness or Vol. 17-No. 15. Em plaintiff, the measure of damages might include injury to the feelings of the plaintiff, as well as injury to his property. The court did not find, and the evidence does not disclose, any circumstance of aggravation which could cause injury to feelings, unless gross carelessness can be deemed such. Said the Supreme Court: Waiving the question whether the rule of damages given would have been proper had the injury been inflicted with a manifest disregard of the plaintiff's rights, and with a purpose to injure him exhibited, it is sufficient to say that there was nothing in the nature of the injury to the plaintiff's property which involved injury to his feelings, and nothing in the circumstances attending it, as shown by the evidence and found by the court, which could give him a right to damages for wounded feelings. blen v. Myers, 6 H. & N. 54; Canning v. Williamstown, 1 Cush. 451; Stowe v. Heywood, 7 Allen, 118; Meagher v. Driscoll, 99 Mass. 281; Hawes v. Knowles, 114 Ib. 518. Meagher v. Driscoll was trespass for breaking and entering the plaintiff's close which was the burial place of his deceased child, and removing the remains of the child. The defendant claimed that the act was done through accident and mistake as to the plaintiff's rights, and that the measure of damages should be the actual injury to the real estate only. A ruling that if the defendant acted either with a willful disregard of the plaintiff's rights or under a mistake arising from gross carelessness, the jury might, in assessing the damages, consider the injury to the plaintiff's feelings, was sustained. The natural consequence of the trespass was injury to the plaintiff's feelings, and the point decided was that the damages could not be mitigated by reason of a mistake of the defendant arising from his gross negligence. In the case at bar, gross carelessness was the only ground for allowing damages for injured feelings. Neither the plaintiff's ownership of his land nor the use which he had made, or which he intended to make, of it were sufficient so to identify or connect him with it that the injury to it would, of itself, be a personal injury to him. |
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