set aside the proceedings for the purpose of letting him in. WALKER v. SPENCER. Decided October 4, 1881. Agency-Accountin Appeal.-Defendants, under a contract, whereby they were made sales agents and part owners with plaintiff of a medicinal compound, manufactured and sold said compound for eight years, kept the books under their control, and made payments to plaintiff, but refused his demand for an accounting and settlement. It appeared that they had on hand money liable to distribution and a large quantity of goods ready for sale and delivery. Held, That plaintiff was entitled to an account; that defendants were chargeable with the proceeds of sale as soon as received by their agents or employees, and are not discharged from such liability by the subsequent embezzlement of funds. An appeal from an order denying a new trial can be entertained under § 190. An appeal from an interlocutory judgment may be taken to General Term, but it cannot be reviewed by appeal to the Court of Appeals until after final judgment is rendered. GILLETTE ET AL. v. BATE ET AL. Decided October 4, 1881. Creditor's Bill.-A patentee cannot defeat a creditor's bill by proving want of utility or novelty of the patent, and his fraudulent assignee stands in the same position. One J., who was insolvent, on the sale of a part of a patent, transferred the rest to his wife. A ompany was afterwards organized, to which the patent was transferred in exchange for stock. Held, That the stock when issued to J.'s wife, could be reached by his creditors, and that the appreciation in its value by the corporate management accrued to the creditors. THE PEOPLE EX REL. CLAUSON, v. THE NEWBURGH AND SHAWANGUNK PLANK ROAD CO. ET AL. Decided October 4, 1881. Plank Roads-Constitutional Law.-The charter of a plank road company expired April 18, 1880. Prior to that time it took proceedings to reorganize, under Chap. 611, Laws of 1875. Held, That if it could reorganize under that act it would still be a plank road company, and its 135, Laws of 1876; that it could not take any charter would only be extended under Chap. benefit under the act of 1880, as it was adopted after the proceedings for reorganization were taken, and because at that time the company was not an existing corporation, but that the proceedings were validated by Chap. 551, Laws of 1881. Chap. 135, Laws of 1876, is not a local act, either as it was originally passed, or as amended in 1879. Where a plank road company owns the fee of a portion of its road, a provision in an injunction restraining it from exercising its corporate franchise, which prohibits it from interfering with free travel on said road, is improper; the public has no right to unobstructed travel over that portion, the fee of which is in the company. SCOTT V. THE MIDDLETOWN, UNIONVILLE AND WATER GAP R. R. Co. Decided Oct. 4, 1881. Contract Evidence. Defendant's president, without authority from the Board of Directors, bought certain rails and spikes. They were used in an extension of defendant's track without dissent by the Board. Held, That, defendant having received and used the property for the purpose for which it was designed, it amounted to an adoption and ratification of the act of the president, even though the directors did not know the terms of the contract. Defendant's secretary, on cross-examination, testified that, so far as he knew, defendant did not procure any iron to lay the extension. DAVENPORT, REC'R, v. MCCHESNEY. Decided Oc- Held, That it was proper to try to refresh the tober 4, 1881. Chattel Mortgage.-Where the mortgagee under a chattel mortgage assumes to sell all the mortgaged property, and afterwards takes possession and claims the property under this title, the mortgagor may elect to treat the entire sale as valid, and hold the mortgagee liable for the proceeds of the sale in excess of the mortgaged debt. An accommodation note is not a liability within the strict term of the mortgage.. Where such note was made after the foreclosure sale, and was not paid until after supplementary proceedings had been commenced against the mortgagor, Held, That the security was extinguished by the sale, and that the judgment creditors of the mortgagor had acquired an equitable lien on the surplus fund. witness' memory by showing him his own letters, written to the vendor about the time of the delivery, and which showed that he knew the iron was to be furnished to defendant, and that the letters were admissible as part of the res gestæ. POUCHER v. BLANCHARD ET AL. Decided Oct. 4, 1881. version; Held, That the attorneys were defendants' agents, and in determining by what method they would collect the claim acted within the scope of their authority; that under the law as held at that time they could not be charged with incompetency or carelessness, and that for their mistake in the remedy defendants were liable. JORDAN V. VAN EPPS ET AL. Decided May 31, 1881. Bar-Partition-Dower.-In an action for partition, plaintiff, as the wife of one of the owners of the premises, was made a party defendant and served with process, but failed to appear. A decree of sale was made, the premises sold, and defendant became the purchaser. In an action to recover dower, Held, That as plaintiff failed to set up her rights or make any defense in the partition suit she could not claim in this action that she was unlawfully deprived of her dower right, and that the fact that plaintiff's husband died before the decree of sale could not affect defendant's rights. A judgment in an action of partition is binding upon all the parties, and an error of the Court in determining whether the case is a proper one for a partition or sale cannot be questioned collaterally. The judgment is final and conclusive as to all matters incident to or essentially connected with the subject matter of the litigation which the parties might have litigated and had determined, either as matter of claim or of defense. BAXTER v. Bell, impld. Decided Oct. 4, 1881. Foreclosure-Evidence.-Certain partnership real estate stood in the names of A, B and C; D having entered the firm after its purchase. On selling out his interest, A conveyed his share in the real estate to B and C, and took back a mortgage from them. B and C took the conveyance for the benefit of themselves and D, and the firm continued under the name of B, B & Co. In an action to foreclose, defendants offered in evidence a composition agreement signed by all the creditors of the firm of B, B & Co., including A, and also offered to prove declarations by A when he signed that the amount opposite his name was for a deficiency on his mortgage; that the firm had fully performed as to all creditors except A, and that a tender of performance was made to A, which he refused. This proof was rejected. Held, Error; that the evidence offered was admissible, and if admitted would have created a bar to any judgment for deficiency. The MUTUAL LIFE INS. Co. of N. Y. v. HOYT, IMPLD. Decided October 4, 1881. Foreclosure-Taxes-Practice.-In an action to foreclose a mortgage a witness testified positively that plaintiff paid certain amounts for taxes and assessments, but, on cross-examination, testified that he did not pay those amounts, was not present when they were paid, and had no personal knowledge about them. The court found that defendant failed to pay taxes and assessments, and that plaintiff paid them. Held, Error, that the testimony does not prove the existence of taxes and assessments, but only payments on account of what may or may not be valid taxes and assessments. VIRGINIA. (Supreme Court of Appeals.) TYLER V. TOMS ET AL. December 17, 1880. 1. Where two commissioners are appointed to sell land, and they are required before proconditioned according to law, each executes a ceeding to act, to execute a bond with security separate bond with the other as his surety. Held: that, though the bonds were given in court. This is not a compliance with the decree; and 2. The sale of the land is to be on a credit, and bonds to be taken for the several deferred payments; and the title to be retained. The sale is made, the bonds taken, and the sale reported to the court; but there does not appear to have been a decree confirming the sale. As the bonds fall due, the purchaser pays the money to one of the commissioners; and he deposits it, as collected, in a bank to his credit, as commissioner, not using it or mingling it with his own; but it is lost by the failure of the bank. Held: I. The purchaser is bound to pay the purchase money of the land again. II. The commissioner having received the money without authority to receive it, is liable to the purchaser for the amount so paid. III. The commissioner may be proceeded against by rule in the cause, and an execution of fieri facias may be sued out against him. for the money. PETERSBURG SAVINGS AND INSURANCE Co. v. LUMSDEN. February 17, 1881. 22, 24, a lien is created upon the stock of each 1. By the statute, Code of 1860, ch. 57 §§ 21, stockholder, in a joint stock company for the signed, which may be done with the consent of balance due upon his shares of stock; and if asthe company, the lien is not discharged, but the stock in the hands of the assignee for the balance shares when the assignment was made, or which which was owing by the assignor upon the may thereafter become due, may be sold by the company for such arrearages, just as it might have been sold if it had not been assigned. 2. The charter of a joint stock company provides for the payment of five dollars per share when the subscription is made, and the residue thereafter as may be required by the president and directors. And the corporation is made subject to the provisions of the Code, so far as they are applicable and not inconsistent with the charter. And by a by-law of the company each stockholder is required to give his note, satisfac torily endorsed, for his unpaid stock. A stockholder giving his note with an endorser for his unpaid stock, the unpaid note is still a lien on the stock, and the endorser is entitled to have the stock applied to his relief. 3. The statute gives no lien to the company on the stock of the stockholder for any other debts due from him, than that which is due for unpaid stock; and though a by-law of a company provides that the interest of any stockholder shall be liable for the payment of all debts which may be due from him to the company; and if there is more than one debt, the board of directors may prescribe which one or more of said debts shall be paid out of the stock of the debtor, this by law can only apply to the interest of the debtor stockholder in the stock after the lien of the stock debt is satisfied. And the endorser on the stock note is entitled to have the stock applied to pay that debt in preference to the other debts due from his principal to the company. LIBERTY SAVINGS BANK v. THOMAS CAMPBELL ET REYNOLDS v. LEE. July Term, 1881. The second clause of the will of J. F. was as follows: "I will and bequeath unto my beloved wife, Polly Frans, during her natural life or widowhood, all my estate, both real and personal, dispose of the same equally with my children, as to hold or dispose of at her discretion. She is to she has to spare, each one to account for what he receives, except my daughter Nancy, and it is my wish that she receive, after the death of my wife, the sum of one hundred dollars in money, exclusive of her proportional part of the estate; I also want my daughter, Susannah Lee, to hold what she has received heretofore and account for it." Held: 1. The widow took only an estate for her life in all the estate of her husband, both real and perclause of the will, remainder to his children. sonal, subject, however, to his debts by the first equally, with a power to the widow to make equal advances to them (except to his daughter Nancy) in her life time of such of the property as she can spare; and the children are severally to account for what they have received, in the final division and distribution of the estate, after the death of the widow. 2. Notwithstanding the bequest is to the widow in express terms during her natural life, yet if by other clauses of the will she had been permitted to use and dispose of the subject ab 1. The rule is now settled that the authority of each partner to dispose of partnership property extends only to the business and transactions of the partnership, and any disposition of the property beyond such purposes, without the consent of the co-partner, is an excess of author-solutely at her pleasure, or if so much as may remain ity. undisposed of at her death, had been given over at her decease (which implies a power of unqualified disposition), the devisee would be construed by a necessary implication of the testator's intention to take a fee-simple. May v. Joynes et al. 20 Gratt., 692; The Missionary Society of the M. E. Church v. Calvert's adm'r et al. 32 Gratt. 357. But the will in this case does not invest the widow with power to dispose of the property as she pleased, but only to dispose of such of it as she can spare, to his children equally, who are to account for what they receive as a part received in advance of what they would be entitled in remainder after the determination of the life estate. 2. One partner cannot pledge or sell the partnership property, in payment of his individual debts, without the consent of his co-partner; and the title is not divested by such pledge or sale in favor of a separate creditor, even though the latter may not know it was partnership property. 3. J. and C. were partners and the owners of two bonds executed to them on a sale of land; the bonds were in the custody of J., who, to raise money for his private purposes, pledged them by an attempted assignment along with other securities to the Liberty Savings Bank, where he procured certain notes to be discounted and used the proceeds, sometimes for his own benefit and sometimes for the benefit of the firm. The 3. It not appearing from the record that the Bank afterwards made collection on the bonds, appellant relied upon the statute of limitations and ultimately became the owner of them by pur-by plea or in his answer, or in any form, by way chase at public auction, where they had been sold as forfeited collateral. In a controversy between C. (representing the firm) and the Bank respecting the bonds and their proceeds, Held: That the Bank is equitably entitled to set off against C.'s claim the amount of money which the Bank paid out on J.'s checks, and which actually went to the discharge of the partnership debts, and it makes no difference that the money so checked upon by J. was the proceeds of notes discounted by the Bank for his private accommodation. 4. A commissioner's report not excepted to in the court below, cannot be impeached before the appellate court in relation to matters which might be affected by extraneous testimony. of defence to a claim for rents, in the court below, it is too late to raise the objection in the appellate court. SNOUFFER . HANSBROUGH. July Term, 1881. 1 While it is true that directing an issue to be tried by a jury, is a matter of discretion by a court of equity, it is equally true that such discretion must be exercised upon sound principles of reason and justice. Both the awarding an issue when it ought not to be awarded, and the failure or refusal to direct an issue, when it ought to be directed, are subjects of review in an appellate court, and that court must judge whether the court below in either case, has soundly or ursoundly exercised its discretion. 2. An issue of chancery is directed in doubtful matters of fact, to satisfy the conscience of the court. It is not adopted as a substitute for omitted evidence, but in cases of doubt and difficulty produced by a conflict of testimony. 3. It may be affirmed as a general rule that where the evidence is conflicting and contradictory as to the material facts; where the right determination of the case depends upon the credibility of witnesses; where giving equal weight to the testimony on both sides, the chancellor cannot arrive at a definite and satisfactory conclusion, it is his right and his duty to award an issue to be tried by a jury, before whom the witnesses may be brought, where they can be seen and heard, where they can be subjected to public cross-examination and their credibility tested by their demeanor, capacity and sources of information. 4. An issue out of chancery is peculiarly proper in cases of alleged fraud, where the decision rests on the credit to be given to the wit nessess. CALIFORNIA. (Supreme Court.) PEOPLE v. O'NEIL. Filed October 8, 1881. Alibi- Instruction. - Defendant was charged with robbery committed in San Francisco, and relied upon the defense of alibi. The Court instructed the jury: "As to the proof of an alibi, it is a proof admitted by the law; and in fact, when it is established, it is the most conclusive and logical of all defenses. If it is established to the entire satisfaction of the jury in this case that the defendant was in Waverly Place at the time this alleged robbery was committed, at that very instant, it follows necessarily and emphatically that he could not at that same instant have been on California street." Held, such instruction was not a direction that the proof in support of the defense of alibi must be made to the entire satisfaction of the jury. Reasonable Doubt-Robbery.-A reasonable doubt of a defendant's presence at the time and place of an alleged robbery raises a reasonable doubt of his commission of the offense. Instruction not Specific.-If a charge is not sufficiently specific, it is the duty of counsel to ask the Court to make it more specific. PEOPLE V. LOPEZ. Filed October 8, 1881. Empanelling of Trial Jury-Criminal Law.-The Court has power to order additional jurors summoned when the case requires it. (Sections 226, 227, C. C. P.) Instructions. A defendant cannot object to instructions given in the exact language requested by him. Evidence in Case of Larceny.-Evidence tending to prove that other horses disappeared from the neighborhood at the same time as the mare and colt, with the larceny of which defendant was charged, and tending to show that the others were found, with the mare and colt, in the possession of defendant, is admissible against a defendant charged with the larceny of such mare and colt. THE PEOPLE OF THE STATE OF CALIFORNIA v. JOHN W. CAMPBELL. Filed September 20, 1881. Constitutional Law-Information-Indictment.No constitutional right of a defendant is impaired by changing the mode of procedure from indictment to information, and prosecuting him for a crime committed prior to the adoption of the present Constitution, by information provided for by the laws passed under such Constitution. Jeopardy-Dismissal of Indictment.-The dismissal of an indictment is no bar to a subsequent indictment. Evidence of Threats.-Threats, though communicated to defendant: Held, properly ruled out, there being nothing in the circumstances of the case attending the killing establishing a case of justifiable homicide, or that defendant was in imminent danger. Technical Error.-A detendant must affirmatively show that a substantial right has been injuriously affected by an alleged error. IN THE MATTER OF WILLIAM HOLLIS ON HABEAS CORPUS. Filed September 29, 1881. Habeas Corpus-Void judgment Reviewable.-The question of the authority of a court to render a judgment of imprisonment in proceedings which are absolutely void, is reviewable upon habeas corpus. Contempt-Imposition of Fine is a Judgment.-The adjudication of a contempt is an adjudication of a specific criminal offense; and the imposition of a fine therefor is a judgment in a criminal case. Insolvency-Jurisdiction Over Adverse Claimants.The insolvency court has no jurisdiction to order one not an officer of the court, nor a party to the insolvency proceedings, claiming adversely to the insolvent debtor, whether fraudulently or otherwise, to deliver over property to the receiver in insolvency. In such case the remedy primarily is by direct action at the suit of the receiver against the alleged fraudulent grantee or adverse holder. Verification-Parties.-The verification of a person to an answer in the case does not make such person verifying, a party to the action. So held, where the President of an insolvent corporationdefendant verified the answer as required by law, that such President did not become a partydefendant to the action, but that the corporation was the sole defendant. Order to Show Cause Does not Make a Person De fendant.-A mere order to show cause why a party should not be punished for contempt does not make such person a party to the proceedings in which the order is made. ALABAMA. (Supreme Court.) ANN E. GEORge et al. v. JANE A. GEORGE et al. Bill of Review-Statute of non-claim.-A husband uses moneys belonging to the separate estate of his wife in the improvement of city property. The wife filed a bill to have a lien declared in her favor on this property, and the Chancellor decreed her an interest in the same. On a bill of review filed by the minor heirs it was held that the wife was merely asserting her fiduciary interest in the land, and that her claim was not a nominal demand, or such other interest as is included in the statute of non-claim, and might be enforced after eighteen months from the date of letters of administration. Notice to guardian ad litem.-Where a guardian ad litem puts in the customary answer, and makes proper defenses, notice to him of his appointment is not indispensable. MARY C. CONLEY ET AL. v. ALABAMA GOLD LIFE INSURANCE COMPANY. Chancery Practice-Bill of interpleader.-To be entitled to relief under a bill of interpleader, the party thus seeking it must show that-he stands not only indifferent between the claim ants, that he is without interest in the controversy to be waged between them, but it must also appear that he is a mere innocent stockholder or depository, and that by no act of his has he contributed to the cause of the conflicting claims, and of double vexation. JAMES MCDONALD V. THE BATTLE HOUSE COMPANY. Partnership.―The Battle House Company rented a hotel to one Mason, and was to receive as rents one-tenth of the gross receipts of the hotel, Held, That such participation in the gross profits did not constitute this company a partner with Mason. WM. OTIS v. MCMILLAN & SONS. Conveyances-Rights of lessee where reversion is sold. -Where the reversion is sold, either by the original owner or at execution or mortgage sale, subsequent to the lease, the rights of the lessee are not affected, as the purchaser is only the successor to the rights of the lessor; nor does such change of ownership authorize the lessee to annul his contract of lease. Where the tenant at execution sale buys the reversion, the payment of rent is merely suspended until after the time for redemption expires. When the time for redemption has expired, the lessee, as such purchaser, acquires a title in fee, which carries with it the rents, etc. PETER MOORE v. THE STATE OF ALABAMA. 1. Inferior Courts.-Constitutional authority of Legislature to establish.-The constitutional author ity of the Legislature to establish courts of inferior jurisdiction in any county, city, or district of the State cannot be questioned. 2. Idem. And where such jurisdiction has been conferred upon the Probate Judge of a county concurrent with the Circuit Court, it cannot be objected that he is not authorized by the act in question to preside in such inferior court. 3. Idem.-Constitutionality of act conferring jurisdiction, and legality of grand jury organized under.— Such act is plainly constitutional, and the grand jury which found the indictment was legally organized under its provisions. 4: Witness.-Incompetent to discredit by particular independent facts.-A witness may be díscredited by attacking his general reputation or character, but particular independent facts cannot be introduced for this purpose. Held, That a question asking one witness for the impeachment of another as to the latter's being indicted for burglary and seeking to evade arrest, was properly excluded from the jury on direct examination, but greater latitude is allowed on cross-examination. 5. Witness. Character of when assailed or otheracter of a witness is assailed or impeached as wise impeached a question for jury.-Where the charbeing unworthy of credit, it is entirely within the province of the jury, as the exclusive judge of the facts. MARYLAND. (Court of Appeals.) GILL v. CARMINE. January, 1881. Contracts-Of Trustee-Liability.-A trustee is liable upon any contract he may make for the benefit of the estate, although he makes the contract as trustee, under an order of court, for the sole benefit of the estate and with actual notice to the other party. Only by express agreement on the part of the other party to look to the trustee fund alone for payment can the trustee be relieved from personal liability. NEW JERSEY. (Court of Errors and Appeals.) A. sold a farm to B., misstating the number of acres, taking a mortgage for a part of the consideration. B. sold, making a similar misstatement, to C., who assumed payment of the mortgage. On forcloseure by A.; Held, that C. could not deduct his damages from the mortgage; that to authorize such deduction, the mortgagee and owner must be privies in contract. Judge William Kennon, of St. Clairsville, O., who died of paralysis at the age of 84, spent half a century in important public labors. |
