Графични страници
PDF файл

136. MASTER AND SERVANT-Master's Liability-Test. 149. NEGLIGENCE-Children-Excavation.-One mak --Test of employer'a liability for defective machinery ing excavation held pot bound to so guard it as to pre. is whether it was reasonably sale for the purpose for vent injury to children who come upon it without big wbieb It was used.-KENNEDY V. ALDEN COAL CO., Pa., invitation.-SAVANNAH, ETC. RY.CO. V. BEAVERS, Ga., 19 Atl. Rep. 341.

39 S. E. Rep. 82. 137. MECHANICS' LIENS – Owner's Liability - Ultra 150. NEGLIGENCE-Children-Open Cellar.- Premises Vires Contracts. It is no objecttion to the claim of a located 30 feet from a city street, containing an un. material man to a mechanic's lien that the contractor guarded open cellar, held not particularly attractive had no power under its charter to make the contract. to children, so as to render the owner liable for inju. -GENERAL FIRE-EXTINGUISHER CO. V. MAGEE CARPET ries.-LOFTUs V. DEHAIL, Cal., 65 Pac. Rep. 379. WORKS, Pa., 49 Atl. Rep. 366.

151. NEGLIGENCE-Preximate Cause.- Violence of a 138. MECHANICS' LIENS - Payment by Owner-Right playmate held the proximate cause of plaintiff's ipiu. of Material-Men.-That owner voluntarily paid a bill ries, so that the owner of property on which the inju. in excess of the contract price of the building, did not ry occurred was not liable.-LOFTUS V. DEHAIL, Cal., prejadice a material.man furnishing materials to the 65 Pac. Rep. 379. contractor.-SOUTHERN CALIFORNIA LUMBER Co. v. 152. NEW TRIAL-Amount too Trivial.- Amount in. JONES, Cal., 65 Pac. Rep. 378.

volved in an action against a garnisbee held too 129. MECHANICS' LIENS - Pleading General Issue. trivial to justify the granting of a petition for a new Defendantin mechanic'e lien, baving pleaded general trial, though error appeared.-WIGUTMAN V. KRUGER, issue, waives defect in claim.- GENERAL FIRE EXTIN 49 Atl. Rep. 395. GUISHER CO. V. MAGEE CARPET WORKS, Pa., 49 Atl.

153. NEW TRIAL--Modification of Judgment.-Where Rep. 366.

plaintiff failed to comply with order requiring him to 140. MINES AND MINERALS-Blood Veins-Surface Lo. consent to a moditication of the judgment held to en. cation.-Blind veins underneath prior lode claims be. title defendant to a new trial.-BONELLI V. JONES, long to the surface location under Rev. St. U, S. $ 2322. R.I., Nev., 65 Pac. Rep. 374. -CALHOUN GOLD-MIN. Co. v. AJAX GOLD MIN. CO., U. 154. PARTIES--Waiver.-An objection that plaintiff's S.S. C., 21 Sup. Ct. Bep. 885.

co-tenant should have been joined in an action held 141. MINES AND MINERALS-Exploration-Mechanic's waived, where it was not made in writing before the Lien.-A mining expert who contracted to explore

commencement of trial.-DARILL V. DODDS, Miss., 30 certain mines held pot entitled to assert a mecbapic's South. Rep. 4. lien on tbe property for such services under Me. 15). PARTNERSHIP-Dissolution-Service of Process.-chanic's Lien Act.-LINDEMANN V. BELDEN CONSOL. Service of process on a commerical partnership during MIN & MILL. Co., Colo., 65 Pac. Rep. 403.

its continuance may be made by service on one of the 142. MINES AND MINERALS – Patente -- Collateral At.

members, which will be service on all; but, after dig. tack.-Patents of lode-mining claims cannot be col

solution, service must be made on each member in. laterally attacked by evidence that on a subsequent

tended to be sued.-LEVY V. Rich, La., 30 South. Rep. location of a topnel site no ore bad been discovered in

877. the lode claimg.-CALHOUN GOLD-Min. Co. v. AJAX

156. PLEADING - Amended and Substituted Plead. GOLD-MIN. Co., U. S. 8. C., 21 Sup. Ct. Rep. 835.

ipgs.-An amended petition may be filed, instead of

attempting to file a substitute for the original petition, 143. MORTGAGES - Bona Fide Indorsee – Equities.

which, with all the records, have been lost.--DISTRICT Where a negotiable note secured by trust deed is

OF COLUMBIA V. TALTY, U.S. S.C., 21 Sup. Ct. Rep. 896. transferred before maturity to a bona fide indorsee, his righty under the trust deed are not sabject to defenses

157. PLEADING-Amendment.-The statutes of Mig. existing between the maker and payee.-COWING V.

souri do not authorized a plaintiff to amend his peti.

tion in vacation before the term to which the sum. CLOUD, Colo., 65 Pac. Rep. 417.

mons is returpable.-PETERSON V CHICAGO, M. & St. 144. MORTGAGES - Parties - Second Mortgagee.-In

P. RY. Co., U. S. C. C., W. D. Mo., 108 Fed. Rep. 561. an action to foreclose a prior mortgage, it was not

158. PLEADING - Amendment - Alter Trial Comnecessary to make a second mortgagee of cburch

menced.-The court, after trial has been entered property, whoso mortgage was made by the president

upon, can allow amendment to complaint to cor. and secretary of the trustees individually, a party.SHACKLETON V. ALLEN CHAPEL AFRICAN M. E. CHURCH,

respond with the evidence.-TAPSCOTT v. GIBSON, Mont., 65 Pac. Rep. 428.

Ala., 30 South. Rep. 23. 145. MORTGAGES - Priming - Right of Record Mort

169. PLEADING-Puis Darrein Continuance.- Matter gages.-Rights of mortgage creditors second in rank

arising after suit brought, but before issue joined, is held recognized as priming the mortgage first in rank

not proper matter for a puis darrrin continuance.to the extent that it was without consideration when

LINDSAY V. BARNETT, Ala., 30 South. Rep. 395. the mortgage creditors second in rank acquired their 160. PLEDGES-Banks-Assigoment of Mortgage.- An rights.-WAMSLEY V. RESWEBER, La., 30 South. Rep.5. assignment of a mortgage to a bank by a stockholder 146. MUNICIPAL CORPORATIONS- Bondg-Irregularity.

of a corporation to secure a corporate debt was a

pledge, and he occupied the position of surety.--Bonds for payment of street improvements issued under Act May 23, 1889, held valid, though assessment

VALENTINE V. DONOHOE KELLY BANKING CO., Cal., was invalid because of the Irregularity in passage of

65 Pac. Rep. 381. city ordinance.-GABLE V. CITY OF ALTOONA, Pa., 49 161. PRINCIPAL AND SURETY-Fraudulent Conveyance Atl. Rep. 367.

of Co-Surety.-Surety on administrator's bond held 147. MUNICIPAL CORPORATIONS--Contract-Ordipavce

entitled, at any time within 10 years after final settle. or Resolution.- Where statutes governing cities do

ment of the adminstration, to maintain bill to set not require a contract to be entered into by ordinance,

| aside conveyance of co-surety as fraudulent against a city capnot avoid a contract, which it recognized as

| him.-WASHINGTON Y. NORWOOD, Ala., 30 South. Rep. valid on the ground that its execution was authorized 405. only by a resolution.-OGDEN CITY V. WEAVER, U.S. 162. PRINCIPAL AND SURETY-Right of ContributionC.C. of App., Eighth Oircuit, 108 Fed. Rep. 564.

Right of contribution accrueg only when surety pays 148. MUNICIPAL CORPORATIONS - Negligence-Steam | more than bis share of the common liability.-WASH. Roller.-No other potice to travelers of a steam roller INGTON V. NORWOOD, Ala., 30 South. Rep. 405.

the street is necessary than a view of the roller it. 1 163. PROHIBITION--Final Hearing-Interlocutory Or sell.-DISTRICT OF COLOMBIA V. MOULTON, U.S. S. C., der Where, on application for a writ of prohibition. 21 Sup. Ct. Rep. 840.

| a rule nisi is granted, it is no objection that the judg.

[ocr errors]

ment probibited respondents from doing the acts com the assessable value of the roadbed per mile.--OBEGON plained or until tipal hearing.-EX PARTE CAMPBELL, & C. R. CO. V. JACKSON CO., Oreg., 65 Pac. Rep. 369. Ala., 30 South. Rep. 385.

178. TAXATION-Assessment-Judgment on Appeal.164. QUIETING TITLE - Contract of Share. - The Where circuit court, on appeal, affirmed judgment of grantees of a mining claim, in consideratlon of a con. commissioners' court raising an assessment for taxa. tract to work the mine and give part of the minerals tion, it was error to render further judgment for the to the graptor, cannot have their titles quieted taxes due on the assesement 88 raised.-EX PARTE as against the grantor and his assigns.-DOWING V. HOWARD-HARRISON IRON Co., Ala., 30 South. Rep. 400. RADEMACUER, Cal., 65 Pac. Kep. 385.

179. TAXATION-Capital Stock - Computation.-Gen. 165. QUIETING TITLE-Description- Judgment. In ap St. $ 3836, authorizing deduction of real estate forming action to quiet title, a judgment in favor of plaintiff, part of the capital stock in computing tbe taxable relating to land uther than that described in the com- value of corporate stock, does not authorize the de. plaint, was erroneous, as not within the issues.-BAL. duction of real estate held to respond to particolar llaFOUR-GOTHRIK INV. Co. v. SAWDAY, Cal., 65 Pac. Rep. bilities.-APPEAL OF CUTLER, Coon , 49 Atl. Rep. 338. 375.

180. TAXATION-National Banks-Assessment.-Rev. 166. REFORMATION OF INSTRUMENTS - Possession of St. U. S. $ 5219, forbidding taxation of shareholders in Plaiptiff Under Deed.-In order to maintain bill to cor. national banks at a greater degree than other rect description of lands in a deed, it is not necessary moneyed capital, does not include capital which does that complainant should be in possession. --BEILER V. not come in competition with the business of national DREHER, Ala., 30 South. Rep. 22.

banks.-COMMERCIAL NAT. BANK V. CHAMBERS, U. S. 167. REMOVAL OF CAUSES-A nending Petition. The C.C., 21 Sup. Ct. Rep. 863. unauthorized tiling of an amended petition in vaca. 181. TAXATION - Redemption - Enhanced Value.tion, reducing the amount of the damage prayed for Where a purchaser of swamp lands made improve below, $2.000, held not to affect defendant's right of ments after suit to redeem, he must account from removal.-PETERSON V. CHICAGO, ETC. RY. Co., U.S. that date for the full rental value of the property as C. C., W. D. (Mo.), 108 Fed. Rep. 561.

enhanced by the gubsequent improvements.-BAIRD . 168. SHERIFFS AND CONSTABLES -- Negligence - In

MONAMARA, Miss., 30 South. Rep. 69. demnity.-Constables selling goods under distress for 182. TRESPASS-Proof-Reasonable Doubt.-In a civil rent, held not entitled to recover on indemnity bond; action for trespass by defendant's bogo, plaintiff beld his liability for damages being caused by his own neg. not required to prove his case beyond a reasonable lect.-RLAIR V. BORING, Pa., 49 All. Rep. 865.

doubt.-SMITH V. SMITH, Colo., 65 Pac. Rep. 401. 169. SHIPPING -- State Pilot - Owner's Liability.--A 183, TRESPASS – Proof of Title. - Evidence of title ship owner is not liable for injuries caused by negli. from the state to plaintiff, without showing title in gence of pilot accepted by vessel under Laws N. Y. the state and that plaintiff bad paid the taxes held 1892.-HOMKR RAMSDELL TRANSP. CO. V. LA COMPAGNIE not sufficient to support an action to recover the GENERALE TRANSATIANTIQUE, U. S. S.C., 21 Sup. Ct. statutory penalty for cutting trees from the prop Rep. 831.

erty.-DARILL V. DODDS, Mig8., 30 South. Rep. 4. 170. STATUTES - Construction. Where an act must 184. TRUSTS AND TRUSTEES – Resulting Trusts.be construed either as unconstitutional or as rep al. Where agent for the sale of a patent purchased lands ing a former act by implication, the latter construc. with his own funds, and verbally agreed to sell land tion will be adopted.- PARK V. CANDLER, Ga., 39 S. E. to his principal whenever the latter could realize the Rep. 89.

money, held, no resulting trust in favor of the prin. 171. SraTUTES - Construction by Federal Court of | cipal.-NAGENGAST V. ALZ, Md., 49 Atl., Rep. 333. State Statutes.-Construction by a state court of a 185. USURY - Copflict of Laws.-- Where contract is state statute held binding on the Supreme Court of the I made in one state, to be performed in another, the par United States.-COMMERCIAL NAT. BANK V. CHAMBERS, ties may stipulate for highest legal interest allowed in U.S.S. C., 21 Sup..ct. Rep. 866.

either state.- PIONEER SAVING & LOAN Co. V. NONNE 172. STATUTES - Repeal – Effect.-Where an act at. MACHER, Ala., 30 south. Rep. 79. tempts to repeal prior legislation pot germane to the 1 186. WILLS—"Heirs of Money"-Detinition.-The term general subject, it will pot vitiate the entire act.-COM "heirg of money," in a will, construed to mean those MONWEALTI V. MOIR, Pa., 49 Atl. Rep. 351.

to whom bequests of money were made, as distin 173. STATUTES-Title.-Act March 7, 1901, relating to

guished from those to whom gpecific articles of prop cities of the second class, held not unconstitutionalas

erty were bequeathed or bequests of gums for specific not expressing the subject in the title.-COMMON.

purposes, and not "next of kid."- COOK V. FIRST UNIWEALTH V. MOIR, Pa., 49 Atl. Rep. 351.

VERSALIST CHURCH, R. I., 49 Atl. Rep. 389.

187. Wills-Legatees-Wbo Are. - Tbe giving in a 174 STATUTES - Title Undisclosed Subjects.-Act of

will to testator's wife of money in conformity with a 1898 to equalize taxation for state and county pur.

marriage settlement held not to make ber a legatee poses, hold uneonstitutional, as embracing subjects

within other provisions of the will.-IN RE PENTZ'8 not disclosed in its title.-EQUITABLE GOAR. & TRUST

ESTATE, Pa., 49 Atl. Rep. 361. Co. V. DONAHOE. Del., 49 Atl. Rep. 372.

189. WITNESSES-Cross-Examination - Defendant.175. STIPULATIONS - Evidence - Unauthenticated

Defendant, in an action to contest his right to an Coples.-Agreements between counsel, permitting un.

office, held not subject to cross examination as to cam. authenticated copies of documents to be offered in

paign expenses not referred to in his testimony in evidence liberally construed.-LEVY V. Rich, La.. 30

cbiel.-BRADLEY V. CLARK, Cal., 65 Pac. Rep. 396, Soutb. Rep. 377.

189. WITNESSES - Privilege - Incrimination.- Awit. 176. TAXATION-Assessment-Capital Stock.- Refusal ness against a person charged with violations of tbe to deduct the value of real estate owned in other states purity of elections act held not privileged from teg. by national bank from the value of its shares of stock, tifying on the ground that his testimony would tend to held not to unlawfully discriminate against such bank criminate himself and degrade his character.- BRAD. under United States constitution.-COMMERCIAL NAT. LEY V. CLARK, Cal., 63 Pac. Rep. 395. BANK V. CHAMBERS, U. S. S. C., 21 Sup. Ct. Rep. 868.

190. WORK AND LABOR- Separating Items.- On a 177. TAXATION - Assessment-Computation.-Where count for services rendered, wbere plaintiff grouped the roadbed and rolling stock of a railroad was worth three items and alleged a single charge for the value $11,000 per mile, and assessable value of the rolling of the services in all, it was not improper for the court stock was $1,000 per mile, it was error to reduce the to segregate the items and allow judgment for one or $11,000 by 50 per cent. and then subtract $1,000, to find them.-CONROY Y. WALTERS, Cal., 65 Pac. Rep. 387.

Central Law Journal.

uniqued by the T

it to be merely a product of the excitement of the hour. Since then, however, reputable law journals and a political convention

in the State of Rhode Island have formally ST. LOUIS, MO., OCTOBER 25, 1901.

adopted the suggestion.

Treason against the United States is

unique in one particular, it is the only crime The Venie Congres International de l'An.

defined by the constitution. Article 3, secthropologie Criminelle "passed the following

tion 3, says: "Treason against the United resolution at its meeting, September 9-14, 1901, at Amsterdam: “The members

States shall consist only in levying war

against them, or in adhering to their eneof the fifth International Congress of

mies, giving them aid and comfort.” Treason Criminal Anthropology are in favor of

is the highest and most infamous of crimes. the establishment of psycho-physical lab

Its punishment is most ignominious and seoratories for tbe practical application of

vere; its stigma being worse than death. physiological psychology to sociological

For this reason, undoubtedly, the wise and abnormal or pathological data, es

framers of ihe constitution thought best to pecially as found in institutions for the

define it and place it within limits beyond criminal, pauper, and defective classes, and

which it could not be extended. Otherwise in hospitals, and also as may be observed in schools and other institutions.” This

in times of great political or other national

excitement, one factiou, in power, might congress consisted of most distinguished

make certain acts or insults of an opposing jurists, medico-legalists and scientists, rep

faction treason, however ipnocent might be resenting the highest authority of Europe.

those acts of any of the essentials of treason. It meets once in five years.

Congress, therefore, has absolutely no right In our country, up to the present time,

or power to restrict, extend or otherwise im. four national and fourteen state medical as

pair the constitutional definition. That quessociations, and three city academies of med

tion was firmly settled by the supreme court icine have passed the same resolution, with

in the early cases of United States v. Greatdefinite reference to the immediate establish

house, 2 Abb. (U. S.) 364, and United ment of a national laboratory for that pur

States v. Hanway, 2 Wall. Jr. (U. S.) 139. pose, to be under the supervision and control of the department of the interior at

In the United States the leading case upon

the essentials of the crime came up in conWashington. We earnestly commend to bar

nection with an alleged scheme of Viceassociations and to members of the bar in

President Burr to concentrate an armed every state of the Union the same interested

force at New Orleans and establish a southconsideration of this important question.

western confederacy. Burr was indicted and Now that it has been clearly made evident

tried, but the jury found him not guilty. In that imprisonment nor even the death pen

re Burr, 4 Cranch (U. S.), 469. Bollman, a alty is sufficient to deter the criminal man,

confederate, was also arrested but was disit is clearly the duty of public-spirited citi

charged on habeas corpus by the supreme zens, and especially members of the bar, to

court. Ex parte Bollman, 4 Cranch (U. S.), whom the people properly look for guidance

135. In this case Marshall, J., said: “A in such matters, to seek diligently to promote every legitimate attempt toward the solution

combination or conspiracy to levy war

against the United States is not treason, of this most difficult and most important

unless combined with an attempt to carry problem.

such conspiracy into execution; some actual The suggestion has been made, and is being force or violence must be used in pursuance quite generally advocated, that congress be of such design.” In the case of United asked to make an attempt to take the life of States v. Hoxie, 1 Paine (U. S.), 265, it was the President of the United States treason. | held that a resistance of the execution of a This suggestion is made in ignorance of the law of the United States accompanied with law. We made no comment on it, however, at any degree of force, if for a private purpose, the time it was first made, because we believed | is not treasop. To constitute that offense,

the reason or object of the resistance must steps of monarchical governments. The be of a public or general character. So also in president must be one of the people, he must United States v. Prior, 3 Wasb. (U. S.) 234, mix with them; he must be accessible. If it was held that going from the British he must, by constitutional fiat, be clothed squadron to the shore, for the purpose of with a false sanctity and placed on a pedestal peaceably procuring provisions for the enemy out of the reach of the common people, be. did not amount to an act of treason, as this cause he cannot trust bis life in their hands, conduct rested in intention, which is not there is an end of Republican government punishable by our laws. These cases are and a return to monarchical principles. We cited to show how jealously the supreme have absolute confidence, bowever, in the court has resisted any enlargement or re ability of the American people to correct the striction of the crime of treason, even by evils of anarchism and its teaching without construction of the courts.

uprooting their own constitution or the safe. It is very evident, therefore, that an at- guards of Republican government. Better tempt to take the life of the President of the let the tares and the wheat grow together United States cannot be made treason within than to destroy the wheat with the tares. the definition of the constitution, and that congress has absolutely no power to enlarge NOTES OF IMPORTANT DECISIONS. that definitiou so as to include such an act and made it treasonable. Whether it would EVIDENCE-PHOTOGRAPH OF SIGNATURES AS be wise to amend the constitution for this

EVIDENCE.- Whether photographs are admissi

ble in evidence is now well settled in the affirmapurpose, is, at least, doubiful. That this was

tive. Considering the general accuracy of phonot a case carelessly overlooked by the

tographic reproductions it would seem that there framers of the constitution is made very could be no more objection to their introduction evident by an examination of sec. 3, of than to those of letter-press copies which are so article 3, of the constitution. Notice first

generally used as evidence. In the recent case the careful choice of words in defining the

of First National Bank v. Wisdom's Executors,

63 S. W. Rep. 461, the Supreme Court of Kencrime ; second, the wise provision for proof

tucky held that where the signature of an instruon sufficient testimony; and third, its limita- ment was in question, the signature in contest and tion on congress in relation to the kind of certain genuine signatures of W having been punishment to be prescribed. These facts

enlarged and reproduced by photography, the show the care with which this subject was

photographs were admissible in evidence, after

proof by the photographers of their accuracy. considered and the importance which was at

The court said: tached to it. But, further than this, the use

“Appellees had the signature in contest and of the word “only,” limiting the statement two other signatures of the testator, one at tbe of what acts should constitute the crime foot of a check and one on the back of a note, of treason shows a deliberate judg.

both clearly genuine, enlarged and reproduced ment to exclude every otber act that

by photography. These photographs were ex

hibited to the jury after proof by the photogramight possibly be construed to be treason,

phers of their accuracy. Appellant complains or wbich in other countries might by custom of the admission of the photographs. But they come within that term, and to settle abso were only a more enduring form of exhibiting lutely, as far as this country was concerned,

the signatures to the jury as under a magnifying the exact boundary of this most infamous

glass. Such evidence bas often been held com

petent. Luco v. U. S., 23 How. 541, 16 L. Ed. crime. Treason in a free country is neces

545; Marcy v. Barnes, 16 Gray, 161, 77 Am. Dec. sarily limited to tbe very acts wbich define 405; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. it in our own constitution. If it goes be Rep. 315; U.S. v. Ortiz, 176 U. S. 430, 20 Sup. yond that it clothes the offices and officers Ct. 466, 44 L. Ed. 529." of government with a false sanctity like that PARTITION-TITLE AND INTEREST CONVEYED of kings and emperors which is destructive of BY VOLUNTARY DEEDS IN PARTITION.-Some all principles of democracy. Neither would

perplexing questions often arise on voluntary it be any deterrent to the crime it is pro.

partition of lands, especially after marriage of

one of the tenants in common before partition. posed to check; on the contrary it would

At the time of partition and the passing of the serve only to fan the flame of discontent by deeds separating the interests of all in common showing a tendency to follow in the foot to interests in severalty, does the marriage of

one of the tenants in any manner affect her in- postmaster-general. He is not responsible to terest? This question arose in the recent case of third persons either for his own default or that Palmer v. Alexander, 62 S. W. Rep. 691, where of his deputies. The deputies, however, are anthe Supreme Court of Missouri held that where, swerable for their own negligence or that of their after deed is executed in partition to a single subordinates for wrongfully detaining a letter. woman, she marries, and another deed is subse Dunlap v. Munroe, 7 Cranch (U.S.), 242; Stack quently executed to correct a defective descrip- v. Harris, 5 Burr. 2709; Teall v. Felton, 12 How. tion, naming the wife and her husband as gran (U.S.) 284; Bishop v. Williamson, 11 Me. 495: tees, the husband acquires no right by the entir Christy v. Smith, 23 Vt. 663; Fitzgerald v. Burety, but only the right to which he is entitled as rell, 106 Mass. 446. husband. The court said: "The precise question bere involved has so recently been ex HUSBAND AND WIFE-LIABILITY OF HUSBAND haustively examined and decided in an

FOR CRIME OF THE WIFE.-The liability of a opinion by Brace, P. J., in Whitsett v.

husband for the crimes of his wife is governed by Wamack (Mo.) 59 S. W. Rep. 961, that noth rules as old as the common law. The general ing more remains to be said upon the subject. It rule is that a husband is liable for the crimes of was there held that a voluntary partition conveys his wife committed during coverture in his presno new title-makes no degree. It only adjusts

ence and with his knowledge and consent. Henthe rights of the parties to the possession. Each sly v. State, 52 Ala. 10; Commonwealth v. Wood, does not take the allottment by purchase, but is 97 Mass. 225; Miller v. State, 25 Wis. 384; Goldas much seised of it by descent from the common stein v. People, 82 N. Y. 231; Edwards v. State, ancestor as of tbe undivided sbare before parti

27 Ark. 493; State v. Potter, 42 Vt. 495; State v. tion. Alln. Partit. 124. The deed of partition Banks, 48 Ind. 197. If act is done under coerdestroys the unity of possession, and hencefor

cion in the husband's presence, he alone is ward each holds his share in severalty; but such

liable; if done in bis presence by the wife of her deed confers no new title or additional estate in

own free will, both are jointly liable; if com the land. 2 Bl. Comm. 186. * * * The title mitted out of his presence but with his concurbeing already in him, the deed merely designated

rence, the husband is liable, but if committed out his sbare by metes and bounds, and allotted it to

of his presence and without bis knowledge or be held in severalty.”.

consent, wife alone is liable. The greatest difti

culty, bowever, in this question is as to the liaLETTERS-MISTAKES IN DELIVERY_DAMAGES bility of the wife for acts committed partly FOR RETENTION. - Revised Statutes of the within and partly out of the husband's presence. United States, sec. 3892, provide that any person This pbase of the question arose in an interestwho shall obstruct the correspondence of another ing form in the case of State v. Miller, 62 S. W. sball be punishable by fine. Whether this statute Rep. 692, where the Supreme Court of Missouri also gives a right of action for damages was never held that where a wife, whose husband was indefinitely decided until the recent decision of carcerated after conviction for murder, at his Cohen v. Cohen, 63 S. W. Rep. (Texas, 1901,) 544. instigation procured a revolver, which she carIn this case plaintiffs brought suit on account of ried and delivered to bim in the jail, such offense tbeir failure to consummate the sale of certain was committed in the husband's presence, real estate alleged to be owned by them in Hous though he was not present wben she procured ton. Tbey averred, in substance, that appellant and conveyed the revolver to the jail, and hence got a letter from the post office at San Antonio there was nothing to rebut the presumption that addressed to appellee, A. Cohen, containing in the crime was committed at the husband's instiformation with reference to the proposed sale of gation, so as to relieve the wife from liability. the property, and that appellant negligently re The court said: “Marriage does not take from tained possession of the letter for several days, the wife her general capacity to commit crime, and in consequence of which appellees were un but, as it casts upon her the duty of obedience to able to comply with requests made upon them in and affection for her husband, the law indulges the letter, and as a result thereof the proposed a presumption that, if she commits an offense purchaser refused to buy the property. The case in his presence, it is the result of bis constraint was tried before a jnry, and judgment was ren or coercion, and, in the absence of proof to the dered in favor of appellees for actual damages in contrary, excuses her. 1 Bisb. New Cr. Law, $ the sum of $700. The court held that defendant was 357. This presumption is not a conclusive one, liable for damages sustained by reason of plaint. | but is rebuttable. State v. Ma Foo, 110 Mo. 7, 19 iff's failure to sell certain property which would S. W. Rep. 222. In this case the evidence showed have been sold but for the negligent retention of the that the wife, at the instigation of her husband, letter. The reasoning of the court is that the stat procured a revolver, and took it to him in the ate, though penal, imposed upon defendant a duty | county jail. Here she was present while delivnot to interfere or obstruct the correspondence of ering the thing to bim, but was absent while prothe plaintiff, and on breach of this duty he was curing and conveying it. We thought it must be liable for damages proximately resulting there- held that the husband was present when the offrom. This rule, however, is not applicable to the lense was committed, and, being so, the fact that

« ПредишнаНапред »