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the practice is to equally divide the damage.-THE lease, and accepting a specified sum therefor. He HANSON H. KEYS, U, S. D. C., D. (Md.), 197 Fed. Rep. averred that he was tricked into sigping it by the way 537.
the paper was read to bim, thougb admitting that he 48. SHIPS AND SHIPPING-Suit for Demurrage.-A pro.
was able to read the same. Held, that to be relieved vision of a charter allowing the charterer a certain
from the effect of his carelessness In not insisting on number of lay days for loading and discharging, and
the right to read it himself, be must clearly show that requiring the payment of demurrage for any additional he was defrauded; and there being nothing to cortime taken, is an absolute and unconditional engage.
roborato his own testimony, which was positively went on the part of the cbarterer, who cannot be re.
contradicted by the company's agent, the libel should lieved therefrom except on the ground that the delay be dismissed.-THE ANNIE L. MOLFORD, U. 8. D. C., E. was due to the fault or negligence of the owner, or D. (Pa.), 107 Fed. Rep. 525. those for whom he is responsible; and such fault or 57. TRADE LABELS-Infringement-Prelimipary Innegligence is an afirmative defense in a sult to re. junction.-To authorize the granting of a preliminary cover the stipulated demurrege, the burden of plead. lojunction against unfair competition by imitation of ing and providg which rests upon the charterer. packages, the right should be clear; and where it was HAGAR V. ELMSLIK, U.S.C. C. of App., Third Circuit, not shown in support of the motion that any pur. 107 Fed. Rep. 511.
chaser had ever in fact been deceived, and the ques. 19. STATUTE OF FRAUDS-Indemnity.- A promise by
tion whether the similarity complained ol was such as one person to indemnity another for becoming surety
was likely to deceive ordinary purchasers could not upon the bond of a third is not within the statute of
be determined with certalnty on the evidence ad. fraude, and will support an action, although not in
duced, the discretion of the trial court, exercised in writing.-HARTLEY V. SANDFORD, N. J., 48 Atl. Rep.
denying the motion, will not be interfered with by 1009.
the appellate court.-PFEIFFER V. WILDE, U. S. C. C. 50.' STREET RAILROAD-Location-Determination of
of App., Third Circuit, 107 Fed. Rep. 456. Commissioners.--Const. art. 3, $ 18, and Laws 1890, ch.
58. TREATIK8-Construction of Treaty with Russia.656, $ 94, providing that on application for leave to con:
Article 9 of the treaty of 1832 between the empire of struct a street railroad, the determination of commig. Russia and the United States, which authorizes copsusioners, confirmed by the court, may be taken in lieu | lar officers of either country to apply to the competent of the consent of the property owners, the determipa.
tribunals of the other for tbe arrest, detention and tion thus referred to means one only that is in surrender of deserters from "ships of war and mer. favor of the road; and there is therefore no express
chant vessels of their country," and provides that authority for the action of the appellate division such deserters shall be surrendered "on proof, by the when the report is unfavorable.-IN RE NA88AU ELEC. exhibition of registers of vessels, the rolls of the TRIC R. CO., N. Y., 60 N. E. Rep. 279.
crew, or by other official documents, that such indi.
viduals formed part of the crews," cannot be ex. 51. STREET RAILWAYS-Contributory Negligence.
tended beyond its terms, so as to apply to desertere One who thinking he can drive across the street in
generally; and it does not authorize the arrest and front of an electric car, wbich he sees approaching,
detention by the authorities of the United States, on attempts to do go with the result that there is a colli.
application of a Russian consul, of a member of tbe sion when the front wheels of the wagon are on the
Russian navy who, with others, bad been sent to this traok, is guilty of contributory negligence.-TYSON V.
country in charge of an officer, to form part of the UNION TRACTION Co., Pa., 48 Atl. Rep. 1078.
crew of a cruiser being built here for the Russian 52. STREET RAILWAYS-Control of Streets.-A trolley government, but which bad not been completed or rallway track, laid in accordance with the direction of accepted, or its crew organized, at the time such per. the special ordinance, will not be enjoined from opera: son deserted.-MOTHBRWELL V. UNITED STATES, U. S. tion because its location works inconvenience and in. C.C. of App., Third Circuit, 107 Fed. Rep. 437. jury to the abutting owners.-BUDD V. CAMDEN HORSE
59. TRJAL-Directing Verdict.-Though, even where R. Co., N. J., 48 Atl. Rep. 1028.
the evidence is sufficient to sustain it, a verdict may 53. STREET RAILWAYS - Negligence - Pleading. - A be properly set aside, and a new trial granted, yet the complaint alleging tbat a street car was stopped to court in such a case candot, whenever it sees fit, direct allow a passenger to alight, and that while she was in a verdict, if the evidence presents an actual issue of the act of getting off, and before she bad a reasonable taot.-MCDONALD V. METROPOLITAN ST. RY. Co., N. time to do so, it was started, with a sudden quick jerk.
Y., 60 N. E. Rep. 283. causing her to be tbrown,"all of wbich was without
60. WILLS-Perpetuties.-A testator gave to his exe. any negligence on her part contributing thereto,"
cutor in trust $1,000, the interest thereof, less the suficiently negatives contributory negligence.-CITI.
taxes, to be applied to keeping bis burial plot in C ZENS' ST. RY. CO. V. HOFFER, Ind. 60 N. E. Rep. 316.
graveyard in good order, and any surplus remaining 54. TELEPHONES AND TELEGRAPHS - Failure to De.
to be used to repair tonces around the graveyard. liver Messege. - Burps' Rev. Stat. 1894, $6511, 5612 Hold void, as an attempt to create a perpetuity,being (Horner's Rev. Stat. 1897, $$ 4176, 4176a), making a tele.
neither a charitable beguest nor a gift to a cemetery graph company liable for penalty of $100 for a fallure association, within 1 Gen. Stat. p. 351, $ 14, empower. to deliver a telegraph message to the sendee, does not
ing incorporated domestic companies or associations render a telegraph company liable for such pepalty to take and hold property given in trust, and to ap. for the failare to deliver a message recelved within ply the income thereol for the improvement, repair, the State for transmission to a point outside the State.
and embellishment of sucb cemetery.-IN RE CORLE, - WESTERN UNION TEL. CO. V. CAKTER, Ind., 60 N. E. N. J., 48 Atl. Rep. 1027. Rep. 806.
61. WILLS-Presumption against Partial sotestacy.-55. TENANCY AT WILL – Notice to Terminate. - A A will purporting to dispose of all of testator's three months notice is sufficient to terminate a ten. property created a trust in a portion of his property ancy at will or at sufferance, or from year to year, for the benefit of B for the life of the latter, with under section 109 of the District Court Act of directions that on his death ($500 should be paid to 1898, and to justity a judgment for dispossession, when testator's wife, and the remainder to his son. The proven to the satisfaction of the judge.-STATE V. wife died before the termination of the lite estate. GOVERNATOR, N. J., 48 Atl. Rep. 1023.
Held, that the estate of the wife became entitled to 56. TORT8--Personal Injuries - Written Release.-A the $500 on the termination of the lite estate, since libelant's claim for personal injuries against & the son was only entitled to the remainder after ex. schooner was settled by the agent of a casualty com cluding such bequest, and the law does not favor parpany, which bad insured the vessel against liability tial intestacy. - DAUGHTERS V. LYNCH, Md., 48 Atl. for such injuries, the libelant signing a written re. Rep. 1056.
Central Law Journal.
void where the litigation was the resuli of the agent's interference and intermeddling.
This decision is certainly against the cusST. LOUIS, MO., JULY 19, 1901.
tom and decisions of other states of the
Union where it is generally conceded that A recent New Jersey case raises a ques
“owing to their long disuse and the great tion of matrimonial law which is in the na change of conditions since the time when it ture of a quore, a decision of the point was found necessary to apply the barsh docnot being vital to tbe determination of the trines of the common law on this subject, action. The case is Hires v. Hires, decided the acts then denounced are no longer ilby the Court of Chancery of New Jersey, legal.” However, in many jurisdictions, and the question propounded is whetber the question has never definitely come up mere abstention by a husband from the exer for decision whether the offense of maincise of his marital rigbts is willful, continued tenance at common law is still in force indeand obstinate desertion, within the meaning pendent of statutory enactment. But con. of the New Jersey statute, wbere he con sidering the prevailing practice among a cer. tipues to live in the same house with the tain class of lawyers to employ "runners” wife, though occupying a separate sleeping to work up damage suits for them, and room, and pays, though in parsimonious other similar arrangements, it is strange fashion, for the support of the wife. Mr. that the question has not been more Bishop, in section 1678 of his treatise on often litigated. In the case we are considMarriage, Divorce and Separation seems to ering the question arose, not in a criminal, state the correct doctrine on tbis question as but in a civil proceeding between the attor follows: “A man may lawfully obligate ney and the "agent” who employed him for himself to support a woman not his wife, or a division of the fee. It was held on this to support her children, or to retain her in point that though the contract was made in his house as long as they both live, and to be the name of an attorney whose employment kind to her. She may bind herself in a cor the agent procured under an agreement that responding way to him. Indeed, there is | the agent was to share the fee, which had but the one thing which is special to mare been collected by the attorney, the agent riage, and is lawful in no other relation. All could not require the attorney to divide with else pertaining thereto a man and woman him, the contract being illegal. may mutually contract for, and do, without taking the first step toward marriage. The The mortgage tax amendment ac opted by unavoidable conclusion from which reason is the people of Missouri at its last general that the married party who permanently and election, bas just been declared by the suirrevocably withdraws from all that is pecu preme court of that State to be in violation liar to marriage, whatever incidentals he may of the fourteenth amendment of the constituadhere to, commits matrimonial desertion.". tion of the United States. This amendment
was borrowed from the constitution of the A most interesting decision was rendered State of California, where it was adopted in by the Court of Appeals of Kentucky, in the 1879, and where it is still the law. The recent case of Lynn v. Moss, 62 S. W. Rep. effect of the adoption of this amend. 712, where it was held that though cham ment in California was exhaustively treated perty is the only form of maintenance for. in 51 Cent. L. J. 443, where the result of bidden by the statutes of Kentucky, the an our investigation abowed it to have been a cient rule of the common law against simple collosal failure. We also discovered that the maintenance is yet in force in that State; and real intent and purpose of the amendment that therefore an agreement by one who was was to prevent double taxation by considernot a lawyer to assist infant heirs, to whom ing the mortgage as an interest in the real he was not related, in the contest of a will, estate by which it is secured, thereby requirby rendering personal services as their agent, ing the mortgagee to make no return on the in consideration of “a sum equal to” a ce: mortgage as personal property, as formerly tain part of what might be recovered, was the case, but to have it assessed against him
as part of the real estate, and requiring the lated solely to the partnersbip as a legal entity, mortgagor to pay taxes only on his interest
the court cannot grant a discharge to the parties
as individuals. or equity, in the same property. That part, however, of the amendment, wbich the Mis CORPORATIONS-MAJORITY STOCKHOLDERS AS souri court holds to be in violation of the TRUSTEES.-A most important point of law of fourteenth amendment is embodied in the
especial interest to minority stockholders was
recently decided by the New York Court of Apfirst clause, as follows: “A mortgage, deed
peals, in the case of Saranac Railroad Co. v. of trust, etc., sball, for the purpose of
Arnold (not yet reported). The point decided assessment and taxation, be deemed and was that officers of a corporation who own subtreated as an interest in the property affected stantially all the stock do not own the corpora thereby, except as to railroad and other
tion itself. It is not their chattel, but is a disquasi-public corporations." The italics re
tinct legal entity, with the right to own property;
and they cannot appropriate its property to their present the fatal words, which in the opin.
own use any more than any other agent or ion of the Supreme Court of Missouri un
trustee can appropriate the property of his prinjustly discriminates against those persons cipal. The court is not ambiguous in the stateholding mortgages not coming witbin the
ment of its position: exception, and who are thereby denied the
“While the defendants owned substantially all
the stock, they did not own the corporation it. equal protection of the law. Four judges
self. It was not their chattel, but was a distinct dissent. The principal ground of objection legal entity with the right to own property, and to the decision of the court in this case is the they could not appropriate its property to their fact tbat a legislature bas the power to own use any more tban any other agent or trustee select the subjects of taxation, and may place
can appropriate the property of his principal.
Buffalo Loan, etc. Co. v. Medina Gas, etc. Co., one kind of property in a class by itself and
162 N. Y. 67, 76. Through their voting power tax it differently from other property. That
they could manage and control its affairs, but is the general rule, but in answer to this ob. only as trustees, and they were bound to observe jection the court quoted with approval the the rule of meum et tuum, and to be as true to the words of Caldwell, J. in Railroad Co.v.Walker,
corporation as if they bad sustained the same re
lation to an individual. Hence, if they took any 47 Fed. Rep. 681: “But conceding that rail
of tbe plaintiff's money or property for themroads may be classed by themselves for pur
selves they are liable the same as if, under similar poses of taxation, and taxed by a method circumstances, they had taken the money or applicable to them alone, still that classifica property of an individual."'. tion and method of taxation must be restricted
LIFE TABLES AS EVIDENCE.- Are life tables to what is railroad property. It cannot be
conclusive evidence of the duration of human extended to lands which bave no relation to life? That question was decided recently by the the railroad, or its use or operation. It is Supreme Court of Iowa, in the case of Trott v. not competent for the legislature, under the
Chicago, R. I. & Pacific Railway Co., 86 N. W.
Rep. 33, where it was held in a suit by a servant fourteenth amendment, to classify lands for
for personal injuries, that an instruction, "if you purposes of taxation, into lards owned by
| find for plaintiff, you will consider the age be railroad companies, and lands owned by all would probably have reached if he had remained other persons, and declare that the former in good health, as ascertained by the tables of the sbould not and tbe latter should be taxed.”
expectancy of human life introduced in evi. dence is erroneous, as making the life tables
conclusive as to the age he would probably have NOTES OF IMPORTANT DECISIONS reached,” whereas such tables are only evidence
thereof. Defendant asked for an instruction to BANKRUPTCY - DISCHARGE OF INDIVIDUAL tbe effect that the expectancy of life does not PARTNERS IN PARTNERSHIP PROCEEDINGS.— The necessarily apply to persons engaged in bazard District Court of the United States for the East ous employment, but is based upon the observed ern District of North Carolina, in the case of expectancy among persons in ordinary pursuits. In re Hale, 107 Fed. Rep. 432, bas decided that This instruction was refused. The court said: where a petition in involuntary bankruptcy was "The instruction given makes the life tables filed against persons pamed as partners, consti- conclusive as to the age he would probably bave tuting a firm, alleging as acts of bankruptcy a |
reached. This certainly is not the rule. They transfer of property and a general assignment are not conclusive upon the duration of life, but made by the firm, but no act of bankruptcy on are competent to be weighed with other evithe part of the individual partners, and the en. dence. The physical condition of the injured tire proceedings show that the adjudication re- | person at the time next preceding the injury, his general health, his avocation in life with respect | N. Y. 334; Powell v. Railway Co., 38 Fed. Rep. to danger, bis habits, and probably other facts, 187; Longley v. Little, 26 Me. 162; 2 Mor. Priv. enter into the question of the probable duration | Corp. $ 22, note 3; 1 Cook, Stock, Stockh. & of life. Railway Co. v. Chambliss (Ala.), 11 Corp. Law, $$ 195, 225f. The statutes of limitaSonth. Rep. 897; Railroad Co. v. Putnam, 118 U. tion likewise affect remedies, not obligations. S. 545, 7 Sup. Ct. Rep. 1, 30 L. Ed. 257; Scheffler The creditor, under our statute, cannot bring v. Railway Co. (Minn.), 21 N. W. Rep. 711." debt on judgment until he has obtained the judg
ment, and when his right of action accrues the
statute of limitations begins to run against him." CORPORATIONS – LIMITATION OF ACTIONS AGAINST STOCKHOLDERS.—There are statutes in many States providing for the enforcement of the WILLS-LIFE TENANT-PAYMENT OF MORTdebts of a corporation against the stockholders GAGE-SUBROGATION AGAINST REMAINDER-MAN. generally by suit in equity, or by an action of -Several interesting questions arising out of the debt on the judgment against the corporation. relation of a life tenant under a will to the reIn passing upon the question of when the statute mainder-inen when the former has been given the of limitations begins to run on the rigbt of action right to sell property and reinvest the proceeds, thus given, the Supreme Court of Rhode Island, are decided in the case of Dougherty v. Conin the case of Kilton v. Providence Tool Co., 48 nolly (N. J.), 48 Atl. Rep. 777. In this case the Atl. Rep. 1039, held that since the right of action testator's will gave his wife a life estate in his on the debt did not accrue as against the stock property with power to sell and invest the proholder until the creditor had exhausted his ceeds; the income to be hers for life. She was remedy against tbe corporation, the statute did
also made the executrix under the will. Part of not begin to run in favor of the stockbolder until the realty had been incumbered by the testator, that time, although the liability on the debt at wbich incumbrance the executrix paid off out of taches to the stockholder when the debt is incur the personal estate and then conveyed her life red. The court said: “It is argued by some of estate therein to C. C claimed as against the rethe defendants that the liability of the stock mainder-men to be entitled to be subrogated to bolder, at least under section 1, is primary and the benefit of the mortgage on the property absolute from the time of contracting the debt, which had been paid off by the tenant for life. and that, therefore, the statute of limitations be The court said: gins to run in his favor immediately. Such would
"Mrs. Dougherty, considered merely as the life doubtless be the case if an action against bim were tenant of the real estate, subject to an incumgiven immediately, as in some of the cases cited brance created by the testator himself, and deby counsel. In Stilphen v. Ware, 45 Cal. 110, the vised to her for life, was undoubtedly entitled to statute in force (Stat. 1850, ch. 127, § 30) pro- redeem the mortgage, and upon the payment of vided: The preceding sections of this act shall the mortgage to hold it uncanceled, if she chose, not affect actions against directors or stock- and to be subrogated to the rights of the mortholders of a corporation to recover a penalty or gagee. As against the personal representative of forfeiture imposed, or to enforce a liability created the testator, this right of subrogation extends to hy law, but such actions must be brought within the immediate payment of the mortgage debt, three years after the discovery by the aggrieved inasmuch as the personal estate is the primary party of the facts upon which the penalty or for fund for the payment of mortgage debts created feiture attached or the liability was created.' It by the testator himself. McLenaban v. McLenais further provided (Stat. 1850, ch. 128, § 32): ban, 18 N. J. Eq. 101; Campbell v. Campbell, 'Each stockholder of any corporation shall be in 30 N. J. Eq. 415; Coudert v. Coudert, 43 N. J. dividually and personally liable for a portion of Eq. 407, 409. And if there is no personal all its debts and liabilities proportioned to the estate, and the lands incumbered have been amount of stock owned by him.' The case held sold, and all the estates in the land that in a suit upon a debt due from a corporation are represented by funds in court, then the the liability of the stockholder 'was created' life tenant redeeming is entitled, as against the when the debt became due. Hardman v. Sage, remainder-men, to immediate payment of the 124 N. Y. 25, 26 N. E. Rep. 354, holds that, where principal of the mortgage out of the funds in the statute made stockholders liable only for such court, and will not be barred by her cancellation corporation debts as were payable within one of the mortgage through inadvertence or ignorFear from the time they were contracted, the ex ance. Kocher v. Kocher (N. J.Ch.), 39 Atl. Rep. tension of time of payment beyond a year re 537. * * * As to the second question, leased the stockholders from liability. The lia the right to require immediate payment bility attaches to the stockholder when the debt by the remainder-men of the principal is incurred, but no statute of limitation begins to sum, the authorities as to the rights of a life tenant run in his favor until a right of action against to redeem, so far as I have examined them, seem him is acquired by the creditor. Bank v. Dallam, to establish that the life tenant's right of re4 Dana, 574; Hawkins v. Furnace Co., 40 Ohio demption is prior to that of the remainder-men, St. 507; Bronson v. Schneider, 47 Ohio St. | but that, inasmuch as his right of redemption is 438, 33 N. E. Rep. 233; Handy v. Draper, 89 based on the rights in the lands given by the
will, his redemption is allowed for the primary erally throughout the United States, and ibat the purpose of carrying out the trusts of the will for countless multitude of interstate commercial all parties, the remainder-men as well as the life transactions are subject to no rules and burdened tenant, and therefore the life tenant's title held by no restrictions other than those expressed in under the mortgage, or by the mortgagee's re- | the statutes of congress. conveyance, if one is made, is a title upon the “What is the common law? According to tru:ts of the will, and the reconveyance will be Kent: "The common law includes those princi. directed to be made upon these trusts. The re ples, usages and rules of action applicable to the mainder-men therefore cannot be called upon to government and security of person and property redeem the principal before the termination of which do not rest for their authority upon any the life estate, and in the meantime the life ten express and positive declaration of the will of the ant holds a charge on the lands for the principal legislature.' 1 Kent, Com. 471. As Blackstone paid, wbich upon bis death is enforceable by bis says: “Whence it is that in our law the goodness personal representative, or other assignees of the of a custom depends upon its having been used claim. Wicks v. Scrivens, 1 Jobps. & H. 215; time out of mind; or, in the solemnity of our Pearce v. Morris, L. R. 5 Cb. App. 227, 230; legal phrase, time whereof the memory of man Jones, Mortg. (5th Ed.) par. 1065.
runneth not to the contrary. This it is that gives
it its weight and authority: and of this nature are FEDERAL COMMON LAW.-In answer to the
the maxims and customs which compose the question whether the federal courts are bound by
common law, or lex non scripta, of this kingdom. common law, Justice Brewer, in the case of
This unwritten, or common law is properly disWestern Union Telegraph Co. v. Call Publish
tinguishable into three kinds: 1. General cusing Co., 21 Sup. Ct. Rep. 561, gives the following
toms; wbich are the universal rule of the whole interesting explanation :
kingdom, and form the common law, in its "In Smith v. Alabama, 124 U. S. 465, 31 L. Ed. stricter and more usual signification.' 1 Bl. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564,
Com. 67. In Black's Law Dictionary, page 232, it was said by Mr. Justice Matthews, speaking
it is thus defined: “As distinguished from law for the court: "There is no common law of the
created by the enactment of legislatures, the United States, in the sense of a national custom
common law comprises the body of those princiary law distinct from the common law of En
ples and rules of action relating to the governgland as adopted by the several States, each for
ment and security of persons and property, itself, applied as its local law and subject to such
which derive their authority solely from usages alteration as may be provided by its own stat
and customs of immemorial antiquity, or from utes. Wheaton v. Peters, 8 Pet. 591. 8 L. Ed.
the judgments and decrees of the courts recog1055. A determination in a given case of what
nizing, affirming and enforcing such usages and tbat law is may be different in a court of the
customs; and, in this sense, particularly the anUnited States from that which prevails in the
cient unwritten law of England.' judicial tribunals of a particular State. This
“Can it be that the great multitude of interarises from the circumstance that the courts of
state commercial transactions are freed from the
burdens created by the common law, as so dethe United States, in cases witbin their jurisdiction where they are called upon to administer the
fined, and are subject to no rule, except that to
be found in the statutes of congress? We are law of the State in which they sit, or by wbich
clearly of opinion that this cannot be so, and the transaction is governed, exercise an inde
that the principles of the common law are operpendent, though concurrent, jurisdiction, and are required to ascertain and declare the law ac
ative upon all interstate commercial transactions, cording to their own judgment. This is illus.
except so far as they are modified by congres. trated by the case of New York C. R. Co. y.
sional enactment." Lockwood, 17 Wall. 357, 21 L. Ed. 627, where the common law prevailing in the State of New York
THE CONSTITUTIONAL PROTECTION in reference to the liability of common carriers for negligence received a different interpretation OF THE OBLIGATION OF CONfrom that placed upon it by the judicial tribunals TRACTS. of the State; but the law as applied is none the less the law of that State. P. 478, L. Ed. 512, 1. Generally. – The constitution of the Inters. Com. Rep. 808, Sup. Ct. Rep. 569.' United States binds the States, not the United
"Properly understood, no exceptions can be | States, by the provision that "no State shall taken to declarations of this kind. There is no
* * * pass any * * * law impairing body of federal common law separate and distinct
the obligation of contracts.”! It may be from the common law existing in the several States, in the sense that there is a body of statute
said that the obligation of a contract consists law enacted by congress separate and distinct | in its binding force on the party wbo makes from the body of statute law enacted by the sev. lit. This depends on the laws in existence eral States. But it is an entirely different thing to hold that there is no common law in force gen. 1 U.S. Const. art. 1, $ 10.