Графични страници
PDF файл
ePub

credit of the same funds for the succeeding year," the lands, a mortgage executed by the agent acting under board of public safety has no power to use in any such power is unauthorized and void.-MINNESOTA year, in addition to the amount appropriated by the STONEWARCo. v. MCCROSSEN, Wis., 85 N. W. Rep. general council for the police department, any bal. 1019. ance in the treasury arising from a levy for the same 75. RAILROAD8-Brakeman Riding on Pllot-Duty of purpose for previous years, until it has been appro. Engineer.-A brakeman, while standing on the pilot priated by the council.-NEUMEYER V. KRAKEL, Ky., of a switch engine, lost his footing, and was run over 62 S. W. Rep. 519.

and killed. Held, that an instruction that if the en. 67. MONICIPAL CORPORATION8 - Park's - Appropria.

i gineer, by the exercise of ordinary care, could have tion.-No appropriation having been made by the city seen tbat the brakeman had lost his footing, and be council of the city of Detroit, for the use of the park

did in fact lose his footing, and the engineer, by the board, to pay for water for the operation of drinking exercise of ordinary care, could bave stopped the en. fountains, hydrants, etc., the Detroit waterworks was

gine in time to have avoided inflicting fatal injuries not entitled to recover from the park board for water

on the brakeman, his failure to do so, if he did so fall, 80 furnished.-BOARD OF WATER COMR8. OF CITY OF

was negligence, wag erroneous, in assuming as a mat. DETROIT V. COMRA. OF PARKS AND BOULEVARDS, Mich.,

ter of law, that it was the duty of the engineer to ex. 85 N. W. Rep. 1133.

ercise ordinary care to see tbat the brakeman bad not

lost his footing, which was a question for the jury.68. NEGLIGENCE - Collision on Highway-Proximate

SAN ANTONIO & A. P. RY. CO. V. WALLER, Tex., 62 S. Cause.- Where plaintiff, riding his bicycle when it

W. Rep. 555. was quite dark, was run over by defendants, and the evidence was conflicting as to the speed at which tbe

76. RAILROAD8-Injury to Animals.-Wbere statute latter were driving, and there was some testimony that

provides that whenever a railroad train approaches plaintiff was riding at a high speed, the court prop

any crossing a bell sball be rung or a whistle ble erly instructed the jury that it plaintiff was exercis

and that in case of neglect, the railroad shall be liable ing due care, and defendants were racing their borses,

for damages sustained by any person by reason of plaintit could recover against all of defendants, but, such neglect. Held, that where a borse was injured before he could recover against any of them, their

by being run into by a train, and no statutory sigoals negligence must have been the proximate cause of

were given, there could be no recovery for the injury, the injury.-MAHNKE V. FREER, Mich., 85 N. W. Rep.

in the absence of evidence that such failure was the 1099.

cause of the injury.-MANKRY V. CHICAGO RY, Co., s.

Dak., 85. N. W. Rep. 1013. 69. NEGLIGENCE – Question for Jury.-Defendant tied his horso on a public street. with an ordinary 77. RAILROAD8-Speed of Train.-In an action against strap three-fourths of an inch wide, which was fag.

a railroad company for killing a cow there was evi. tened into the ring in the bit of the bridle; and while

dence that a rule of the company limited the speed of the borge was so standing a paper blew under bis feet,

trains at the place where the cow was struck to not whereupon he jumped, broke the bit, and ran into

more than six miles an bour, and the court charged plaintiff's buggy, breaking it, and injuring plaintiff. tbat if the train was running more than six miles an The horse bad previously broken a simllar strap and

hour at the time to find defendant guilty of negll. run away, being frightened by the blowing of a paper,

gence. Held, that the cbarge was erroneous, since & of wbich lact defendant knew, be afterwards taking

violation of the rule would not constitute negligence, the precaution to upbitch the horse from the buggy

unless such violation was the proximate cause of the while at church. Held, that the question of defend.

injury.-SAN ANTONIO & A. P. RY.CO. V. CLARK, Tex., ant's negligence was properly left to the jury.-SINSA

62 S. W. Rep. 546. BAUGH V. BROWN, Mich., 85 N. W. Rep. 1110.

78. RAILROAD COLLISION – Injury to Fireman. 70. PARTNERSHIP-Character-Corporation.-Where Plalpt.ff, a direman on a north-bound train, was in. plaintiff dealt with an association of individuals as a

ed in jumping from big engine to avoid being in corporation, such dealing fixed the status of the asso.

volved in a collision with a south-bound train stand. ciation as to that transaction by estoppel, and plaint.

ing on tbe main track at a blind siding, where the iff was not entitled to subsequently claim a liability

trains had been ordered to meet. The night was dark, arising therefrom against the association as partners.

and the engine in front of bin was without headlight -CLAUSEN V. HEAD, Wis., 85 N. W. Rep. 1028.

or sigual lamps, and the wind was blowing sand and

snow across the track. The siding was without a tele. 71. PLEADING AND PRACTICE – Conduct of Jury. I graph station or a signal house by which it could be Where, on prosecution for violation of the local op. recognized, and it was a fair inference from the evi. tion law, it appeared that after the jury retired a dence that there was no signal light at the meeting juror stated that he had known the State's witness all point. Held, that the negligence causing the collision his life, and that he was a truthful man, while an. was attributable to the company, in ordering the other juror stated that a certain witpers for defend. trains to meet at such place, though it concurred with ant was under indictment for horse theft, none of negligence on the part of plaintiff's fellow servants, which evidence was before the jury during trial, de the conductor and engineer of the south bound train, fendant was entitled to a new trial.-BLALOCK v. in operating it without lights.- MEXICAN CENT. RY. STATE, Tex., 62 S. W. Rep. 571.

co. V. GLOVER, U.S.C.O. of App., Fifth Circuit, 107

Fed. Rep. 366. 72. PLEADING AND PRACTICE-Cross-Examination.Though the cross-examination of a witness will ordi

79. REAL PROPERTY – Absolute Conveyance. – AD narily be left to tbe discretion of the trial judge, where agreement between husband and wife, by which the improper cross-examination was allowed to such an former conveys property absolutely to tbe wife on a extent as to be clear y prejudicial it is ground for re.

consideration that she is to have a life estate, and versal.-GOULD V. GREGORY, Mich., 85 N. W. Rep. 1075.

that the remainder is to go to a daughter, is not void

as an inconsistent limitation ingrafted on an absolute 73. PLEADING AND PRACTICE-Exbibit as part of Peti. conveyance after its execution, and hence the daugh. tion.-Where a policy gued on is filled with the peti. ter may enforce such remaloder as against a person tion, and referred to therein as a part thereot, its

acquiring the property from the wife with a knowlstipulations limiting the liability of defendant are to

edge of the facts.- POST V. CAMPBELL, Wis., 85 N. W. be considered a part of the petition on demurrer.- Rep. 1032. HUDSON V. SCOTTISH UNION & NATIONAL INS. Co..

80. RBAL PROPERTY—Trespass to Try Title – Recov. 62 S. W. Rep. 513.

ery From Vendor.-In trespass to try title, plaintiff 74. POWER OF ATTORNEY - Mortgage.- Where & voucbed in his vendors, immediate and remote, on a power of attorney is given merely to sell and convey | warranty of title alone. There was no allegation of

fraud or mistake, or that the vendorg bad warranted on the part of the city.- DETROIT CITIZENS' ST. RY. the quantity of land. The sale was not by the acre, CO. V. BOARD OF PUBLIC WORKS OF CITY OF DETROIT, though the deed called for a certain number of acres. Mich., 86 N. W. Rep. 1072. A portion of the land was shown to be held by a su

86. STREET RAILWAYS- Ordinance-Sounding Gong. perior title than that of plapitiff. Held, that there

-The violation of an ordinance requiring the contili. could be po recovery against the vendors for a deficit.

uous ringing of a bell on a street car while in motion -BARNES V. LIGHTFOOT, Tex., 62 S. W. Rep. 564.

does not render the company guilty of negligence per 1. RECEIVEB8-Priority.-Where a receiver bad in se in a crossing accident, even though the ordinance bis hands money which he held as an assignee, and is a condition in the grant of a franchise to the com. used a portion of such money to pay the expenses of papy, since the condition is unreasonable.- STAFthe receivership, and afterwards repaid the estate of | FORD V. CHIPPEWA VAL. ELEC. R. CO., Wis., 85 N. W. which he was assignee, he could not be allowed a pre. Rep. 1036. ference there for on a eettlement; it appearing that | 87. SURETIES - Discharge from Liability.- Undera certain creditors had also advanced money for detray. males agent's contract he was to pay cash on receipt log the expenses of the receivership, and the claim ol a bill of lading, and to keep strict account of all not being one of the estate, but of the receiver.- BUS. goods received by and returned by him, and his sure TER V. MANN, Ark., 62 8. W. Rep. 588.

ties bound themselves to pay or cause to be paid to

bis principal all sums which should become duo on 8082. ROAD. AND STREET8-Dedication. - Where, in a

count of shipments to bim or on his order during one solt for the partition of land among devisees in 1868,

year, during which all payments by him were to be the land was divided into lots, streets and alleys, as

made promptly in the ordinary course of business. directed by testator's will, and a copy of tbe plat

Held, that failure of the agent to pay cash for any thereof was filed in the county clerk's office, and

shipment on the receipt of the bill of lading was u deeds were executed to the devisees referring to the

breach of contract entitling his principal to proceed plat and to B street, as shown thereon, and lots were

against him and his sureties to enforce collection of sold and conveyed by the devisees by deeds referring

the debt then due, and hence his gureties were en to the plat and calling for tbe streets dedicated there.

titled to call on authorized agents of his principal for by, there was a dedication of B street, though the land

information as to the state of his accounts, and if, by was not then within the clty limits, and though the

their misrepresentations, the suretles changed their plat was pot recorded, as tbe law did not then require

position to their detriment, they were discharged tbat to be done, and the subsequent extension of the

from liability.-ST. LOUIS BREWING ASSN. V. HAYES, city limits so as to include a part of B street, and the

U. 8. C.. of App., Fifth Circuit, 107 Fed. Rep. 895. original construction of that street at the expense of abutting property owners, pursuant to a city ordi.

88. TAXATION–Tax Collector - Sureties-Limitation Dance, are sufficient evidence of aceeptance by the

of Actiope.- Where a tax collector issued receipts to city.-SOUTH COVINGTON & C. ST. RY.CO, V. NEWPORT

his creditors for taxes which he did not collect, and L&A. TORNPIKE CO., Ky., 62 S. W. Rep. 687.

the tax rolls were marked "Paid" in connection with

each item where such receipts had becp issued, and 83. SALES-Breach of Warranty – Rescission. - De. the collector did not report any stubs of receipts to fepdant, in an action for tbe price of a threshing ma. the commissioner's court, but retained them in his chipe, pleaded a breach of warranty, and asked for a office, where they might have been inspected, limitarescission. The machine was scld at its represented tions rap against the right of action against the sure. value, and the evidence showed tbat it was of no ties on bis bond, since the commissioners would bave practical value. Held, tbat a decree ordering a rescis. discovered the wrong bad they compared his report sion, and that the unpaid purchase money notes be with the tax roll and receipt stubs, as required by cancelled, and that the price paid be returned to the Rev. St. art. 5168. The statute of limitations ruis defendant, and ordering the latter to return the ma against counties, except when otherwise provided.chine, would not be reversed in toto on the ground WARD V. MARION CO., Tex., 62 S. W. Rep. 557. that pleading a breach of warranty was an a mirmence

89. TAX SALÉ-Report of Sale.-Under Comp. Lawg, of the contract, but that the rellt I capceling the potes

3922, providing tbat where any record or poper, alter and orderiog the repayment of the purchase price

sule for taxes, cannot be found in the proper office, it was authorized.-GARR, SCOTT & CO. V. Young, Tenn.,

will be presumed, unless the contrary is shown, that 62 8. W. Rep. 631.

the paper or record was duly made, the fact that after 64. SALE-Fraud-Fiduciary Relations- Rescission.

a gale there was no evidence that the county treasurer Where the president of a bank, who had been in the

made to the auditor general the report required by habit of helping the bank to make loans, knowing

the statute does not render the sale void.-CHURCH Y. that it relied on bis advice, sold It a note, with knowl.

NESTER, Mich., 85 N. W. Rep. 1078. edge that the maker was in straightened circum 90. TELEPHONES AND TELEGRAPHS - Breach of Cor. stances, it pot insolvent, and that the indorsers were

tract for Use of Instrument.-Where plaintiff, who not financially strong, but representing to the bank WHS epgaged in a general messenger business, had a that he believed both maker and indorsers to have

contract with defendant telephone company for tbe the best of credit, the president's relation to the bank use of its telephone in his place of business for a was such tbat It was entitled to a full disclosure of his

period of three years, defendant bad no rigbt to refuse information; and, for his failure to place it in posses.

to deliver messeges to plaintiff to notify persong sion of the facts, It was entitled to rescind its pur | wanted at another telephone exchange, and is there. chase of the note, and recover the consideration paid

fore liable in damages to plaintiff for removing its therefor.-HICK: V. STEEL, Mich., 85 N. W. Rep. 1121. instrument from his place of business after be had

used it only four months, because be refused to pay 85. STRERT RAILROADS-Turnouts.-Under an ordi. DADCO authorizing a street railway company to con.

therefor unless defendant would deliver such mer. struct and maintain a single-track railway along cer.

Bages.-UWENSBORO HARRISON TIL. Co. v. WISDOM, tain streets, with the right to construct, use, and

Ky., 62 S. W. Rep. 629. operate all necessary and convepiept tracks for turn. 91. TRADE-MARKS-Iufringement – Preliminary In. outs, sidetracks, curves, and switches wherever the junction.-The registered trade mark “Yuses" baving same may be necessary, the game to be constructed been applied, under various pronunciations incidental and in operation within one year from the date of the to its use, such as "Why use a," and "Yuse a," etc., to passage of the ordinance, beld, that the relator was the manufacture and sale of an incandescent gas authorized to construct such turnouts, after the road mantel, but commonly pronounced by the trade in was constructed, as should be made necessary by the general in referring to the mantle as though spelt lacrease of travel, without further legislative action "You see a," the owner is entitled to a preliminary in.

626.

tinction against the use of the earlier conceived but land to him worth $5,000, reservlog possession and subsequently registered trademark, "U-C-A," as ap. the right to sell, in which event tho son was to replied to the manufacture and sale of a similar article; ceive la certain price per acre, or $5,000 at tbe ene iutent with which the latter mark was used being luther's death. Subscquently the father made a will Immaterial, and its registration being only prima facie giving $5,000 and some village lots to his son. By evidence of its validity.-WELSBACH LIGHT Co. v. legacies to other children and his wife, be die posed ADAM, U.S.C. C., W. D. (N. Y.), 107 Fed. Rep. 464. of all bis estate except a farm included in the land 92. TRUSTS AND TRUSTEES-Superintendent of Mint

originally deeded to his son, which was to be equally Logs of Public Moneyg.-Whether the superintendept

divided among the cbildren. He then assigned to his

children his personal property on the same basis as ul A mint was at fault or not, he and his sureties are

in the will. The son knew of the assigomopt. On the liable on hio bond "for the faithful discharge of his duties" for the loss by fire of public money, which the

father's death the son receipted for his legacy and law required him to keep galely, and pay over when

share of the personal property, and then presented a required.-SMYTHE V. UNITED STATES, U. 8. C. C. of

claim for services covered by the deed first men. App., Fifth Circuit, 107 Fed. Rep. 377.

tioned. Held, that the acceptance of the benefits

under the will canceled the son's claim.-RUBERT V. 33. UNITED STATES GOVERNMENT – Postmasters

ROBERT, Mich., 85 N. W. Rep. 1119. Money Order Funds.-Funds in other offices on which a postmaster could draw do not constitute money. 99. WILLS -. Construction - Trust Estates – Lite order funds in bis custody, within the meaning of the E-tates-Statutes- Estates in Fee.- Where a devise in postal laws and regulations – UNITED STATEA V. NOR. lee was made in a will, but in a subsequent paragraph Tov, U.S. C. C of App., Fifth Circult, 107 Fed. Rep. it provided that if the devisee should die without 412.

bodily heirs the property should be divided among 94. VENDOR AND VENDER-Action for Price-Market. certain others, the devisee, having survived tbe tes. able Title.-Wbere, in a suit in equity, upon an execu.

tator, took an estate in lee, since a devise over to tory contract for the sale of land, the purcbaser not third persons, dependent on the event of death with being in possession, wherein, such purchaser alleged out issue, reterred to death in the lifetime of the teg. fraudulent representation on the part of tbe vendor tator.-STRATTON V. MCKINNIE, Tenn., 62 8. W. Rep. as to mortgage upon the land, and pending the suit the vendor procured the mortgage to be canceled, and 100. WILLS-Contest-Burd en of Proof. - A charge a decree was rendered providing that, upon the ven.

that the burden of prool on the 1980e of the soundness dor filing with the clerk “a good and suficient war. of testator's mind at the time of the making of tbe ranty deed in fee simple," execution should issue

will was on the contestants, and that they must estab against the vendee for the purchase money, under the

lish by a preponderance of the evidence that testator law, and the pleadings and evidence in the case in

was of unsound mind, and that if there was oply which the decree was rendered, the meaning of the bare balance of evidence, or a mere doubt of the testa. words “a good and suficient warranty deed in lee tor's sanity, the presumption was in favor of sanity, simple" was that the vendor must tender a good and was erroneous, as inducing the jury to believe that suficient marketable title before he could demand

the contestants must prove testator's insanity to the that the vendee accept the deed and pay the purchase exclusion of all doubt.-BIMS v. COLLIER, Ark., 62 8. money.-HORNE V. RODGERS, Ga., 38 S. E. Rep. 768.

W. Rep. 593. 96. WATERS AND WATER COURSB8-Sewage-Pollut. 101. WILLI- Perpetuitieg.-N devised all his estate, ing Stream.-In an action for Injuries caused by allow.

real and personal, to M, as trustee, witb power to sell 10g sewage to escape into a water course, the opinion

all his real and personal estate; to invest and reinvest of the court to the effect that plaintiff could recover the proceeds tbereol as he should deem fit; the trust for the time lost even for the sickness of his adult chil.

fund to be used: (4) to pay anpually one-half of the in. dren 18 dot prejudicial error where the charge re

come to his son barles during his life, and the stricted the jury to a recovery for the loss of time to ball ot said income to his daughter during her life: that of plaintiff's wife by reason of her sickness.

(5) upon the death of his son Charles to pay one ball CITY OF SAN ANTONIO V. Diaz, Tex., 62 8. W. Rep. 549. of the principal to the children of Charles, but, il do 96. WATERS AND WATER COURSE8-Surface water.

issue survive his son, then to pay one-half to tbe Defendant built a dam to prevent surlace water from children of his daughter; (6) upon the death of his crossing big land, thereby turning it on property of daughter to pay one half of the principal to her cbild. plalotiff, who sued for damages. Defendant claimed ren, but, if no issue survive her, then to pay the same the water from time immemorial bad flowed across to the children of his son Charles; (7) upon the death H's land, and from thence acros8 plaintiff's, and that of eitber his son Charles or bis daughter without its natural course had been diverted by a ditch cut by

issue, to pay the entire net income to the survivor of H through a natural elevation, which prevented it

the two during his or her life; (8) If both of said child. from flowing on defendant's property. There was

ren die without issue, then his entire egtate shall be evidence that the water had been diverted onto de.

vested in the brother of the deceased, and his heirs. Tendant's land by thy patural course of husbandry. forever. Held: (1) that the devise was for inore tban Held, that an owner has not the right, even by ordi.

two lives in being, and was therefore vold; (2) that nary husbandry, to divert the natural flowage of sur.

the statute against perpetuities applies to a case face water so as to collect and precipitate it on his where the trustee 18 authorized to sell the real estate peighbor's property.-FINKBINDER V. ERNST, Mich., and other property of the deceased, but is required to 85 N. W. Rep. 1227.

immediately reinvest it; (3) the provision for the life 97. WATER COMPANY-Aggigoment of Contract with

estate devised to the sister is good.-NILES V. MASON, City.--Where a city for more than eight years acquies.

Mich., 85 N. W. Rep. 1100. ced to the fullest extent in the assignment by a water 102. WILLI-Remainderg - Death Witbout Issue.company of its rights and privileges under a contract

Where a will bequeathed $1,000 to C for life, and on his with the city, and allowed the new company during

death without issue to his brothers, the rule tbat such time to perform the contract of its assigpor, it is

where a provision of a will, standing alone, would too late for the city to question the legality of the

pass to the devisee an absolute estate, and it is fol. assignment for the purpose of avoiding perform

lowed by another, directing that such estate shall ance of the contract on its part.-OITY OF AUSTIN V.

pass to some other person on the death of the first. BARTHOLOMEW, U. 8. C. C. of App., Fifth Circuit, 107

pamed legates without issue, then such death must be Fed. Rep. 349.

beld to mean death during the life of the testator, bad 98. WILL8-Claims for Services-Estoppel. A father no application.-COOK V. COLLIER, Tenn., 62 S. W. in consideration of an adult suu's services, deeded | Rop. 658.

Central Law

Journal.

admit that the true ideal in marriage is such a perfect union that leads to the indestructi.

bility of the relation of man and wife; for, ST. LOUIS, MO., JULY 12, 1901.

in its very inception, such is the declared

purpose of the parties to it. Such is in exact The case of Atherton v. Atherton, decided accordance with the moral law: “And they by the Supreme Court of the United States, twain shall be one flesh.' England held this April 15, 1901, and reported in 52 Cent. L. view for centuries, and wbile she held it, the J. 484, is awakening earnest inquiry, thirteen colonies in America were planted, especially in the eastern States upon the each adopting this view of the mother counprobable encouragement such decision will try. South Carolina was one of these, and, give to the enactment of loose divorce laws with the exception of the interval between in States whose public policy bas not bereto the years 1872 and 1878, she has confore given evidence of much concern for the stantly retained this view. If others have inviolability of the marriage relation. In our drifted she cannot be so charged to have annotation to that case, bowever, we pointed done." out that from a legal standpoint, the position A uniform federal divorce law is an absoof New York and several other eastern States lute necessity. This is the sensible concluin refusing to recognize tbe decree of divorce sion to which the recent agitation of this of a sister State unless both husband and question is leading the people of this counwife were domiciled therein had been justly try. One prominent newspaper in the east rebuked by the supreme court in the decision | says: “So widespread and insistent has bejust referred to. We showed also that while come the demand for legislation by congress the motive which prompted these States in with reference to the regulation of divorce their refusal to recognize divorces granted in proceedings that action toward that end other States may have been commendable, seems likely to be undertaken at the next its result was an absurdity in that it held session of the national law making body. people divorced in one State to be mar. Recent decisions of the supreme court have ried in another, and vice versa, and was again brought the matter prominently into attended by all the serious consequences notice throughout the country.” The New wbich such confusion of authority was bound | York World, showing the awful consequence to result in. But wbile this is true we desire of the wholesale granting of divorces, says to extend our sympathy and admiration editorially: “Many lawyers and judges especially to the States of New York and have asked that federal legislation be inSouth Carolina wbich bave so nobly and so augurated to put a stop to this state of unequivocably set themselves like a stone wall affairs. From time to time the justices of the against the tide of easy divorce legislation, I supreme court here and in other judicial deand whose policy has been to limit divorce and partments have endeavored to prevent fraudto check the wholesale separation of marital ulent and collusive divorces by stringent inrelations which like an epidemic has been vestigation, but the lawyers who advertise to spreading over the country, but whose ear. procure divorces at forty dollars a bead are nest efforts in this direction have been coun ever ready to invent some method of carryteracted in a large degree by the action of sis ing on the divorce.made-easy process." ter States whose laws have encouraged sepa Jurists and practitioners eminent in their ation and made it easy of attainment. The profession are emphatic in their declarations result has been that there has arisen an abso. that federal action is necessary. One is lute disregard of the sacredness of the mar. quoted to have given bis opinion as follows: riage relation and a drifting away into paths “I consider the present state of divorce leg. of free love which permits the status of mar islation in this country most deplorable. It riage to be changed at the will of the parties, cannot be remedied except by federal legisand ends in the destruction of the home and lation. Why should marriage, which is units influences. We concur in the words of iversal, be treated by every State in the Pope, J., of South Carolina, in the case of Union in a different manner? The law on McCreery v. Davis, when he said: “All this subject should be universal. Then we

should hear no more of Dakota or New Jer. sey decrees being invalid.”

Marriage is not a contract between the parties to be dissolved by their mutual consent, but is on the contrary, a status into which they have entered binding them for life in a relation which is the most sacred and the most vital to the perpetuity of society of all the relations of life. In Aryan civilization, at least, the home has always been most jealously guarded as the fountain spring out of which comes all that is good or bad in the social and political life of the people. In undermining the marriage relation we destroy the home and in destroying the home, we destroy the most powerful in. fluence and restraint upon the actions of men only excepting that of the spirit of God bim. sell. It is earnestly to be hoped that the discussion of this important question now being awakened tbroughout the country will serve to arouse the people to first principles on this subject, and lead them to secure the purity and indistructibility of the home by providing for å uniform law of divorce which might stipulate, probably, not more than tbree grounds, suggested by Mr. Bishop as the only proper and reasonable grounds for divorce, adultery, desertion and sævitia.

length in his work of Equity Jurisprudence, and we have recourse to that authority for enlighteoment upon this matter. In that work it is said that agreements entered into in good faith, but under a mistake of law, are generally held valid and obligatory upon the parties." After considering a great number of authorities, which are apparently against the position taken by the court, the learned judge who writes the opinion collates authorities showing a well defined exception to this general rule which he states as fol. lows: "Where the mistake is of so fundamental a character that the minds of the parties have never in factómet, or where an unconscionable advantage has been gained by a mere mistake or misapprehension, and there was no gross negligence on the part of the plaintiff, either in falling into the error or in not sooner claiming redress, and no intervening rights have accrued, and the parties may still be placed in statu quo, equity will interfere, in its discretion, in order to prevent intolerable injustice. This we believe to be the clearly defined and well-established rule upon the subject in courts of equity both in Eog. land and America."

NOTES OF IMPORTANT DECISIONS

MUTUAL MISTAKE OF LAW.-An interesting point of law is discussed by the Court of Chancery Appeals of Tennessee in the case of Harlan v. Central Phosphate Company, 62 S. W. Rep. 614. In that case a balf interest in common in a lot descended to A, who supposed, under a mistake as to the law of descent, which was also shared by B, that the lot descended in severalty to the latter, who, in fact, inherited no interest therein. A owned other land adjoining this lot, and together with B executed a joint mineral lease to the several tracts owned by them, which included the lot in question. The lease was executed as a joint lease merely for convenience, and all the parties, including the lessee, supposed that A bad in law no interest in the lot in ques. tion, though they all knew the facts. It was held by the court that the lease did not convey the interest of A in such lot, since it was executed under a mutual mistake of law as to the owner. ship thereof. The court said: “The inquiry as to when equity will relieve from mistakes of law is an exceedingly difficult one. The general rule is simple enough. The difficulty arises upon a consideration of its qualifications and exceptions. Judge Story has considered this question at

HOMESTEAD-CHANGE OF RESIDENCE.-In the recent case of Minnesota Stoneware Co. v. McCrossen, 85 N. W. Rep. 1019, the Supreme Court of Wisconsin decided an interesting question in the law of homestead. It was held in this case that where the owner of a homestead moved with his family to a distant State, where he remained more than three years, the finding of the trial court, on his positive testimony, that the removal was temporary and without intent to abandon his homestead, should not be reversed, though be registered and voted several times in sucb State, since the fact of voting is not conclusive on the question of residence. We quote from the opinion:

"There is left the question of fact, upon which the case mainly turned, as to whether the removal of Mr. McCrossen from the homestead was for temporary purposes, with intent not to abandon it as a homestead but to reoccupy it as such, as found by the court. We shall not discuss at length the evidence upon which such finding was made. In this case there is the very significant circumstance that Mr. McCrossen exercised the elective franchise in the State of Washington three times while residing there. We must presume that the essentials of citizenship are the same in tbat State as here, and that McCrossen's assertion of the right of citizenship, as indicated, was inconsistent with bis possessing a homestead in tbe State of Wisconsin. But we cannot say that such circumstance is conclusive. He violated the law in voting, or he committed perjury in testifying that his residence in the State of Washington was for mere temporary purposes and that his intention at all times was to return to the Wisconsin homestead. The trial court concluded from all the circumstances that he tes

« ПредишнаНапред »