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Digest of Decisions.

now broken. In this lease the lessee agreed to receive and support the plaintiff if he should return to the house. Held, the lease was properly excluded when offered in evidence by the

defendant, the true question being whether the UNITED STATES COURTS.

contract had been broken on or before. June 9,

1879. If the contract was a continuing one for SHANKS, EX'R, v. KLEIN. (Supreme Court of the the plaintiff's life, it was entire, and a complete United States. October 31, 1881.)

breach would justify the plaintiff in treating it 1. Partnership - Real EstateDebts-Equities.

as absolutely at an end. Real estate purchased with partnership funds for partnership purposes, though the title be

LITTLE v. LITTLE. Sept., 1881. taken in the individual name of one or both TaxationNational Bank Stock-School Tax.-The partners, is in equity treated as personal prop- question was whether national bank stock beerty, as far as is necessary to pay the debts of the longing to the inhabitant of a school district in partnership and to adjust the equities of the one town could be lawfully taxed for the purcopartners.

pose of defraying the expense of building a school2. Ibid-Conveyance of Equitable Title- Legal house in the district of another town, under Gen. Title. For this purpose, in case of the death of Stats. c. 39 and Stats. 1873, c. 315. Held, the one of the partners, the survivor can sell real shares of the defendant's intestate could be asestate so situated, and, though he can not convey sessed only in Newburyport, where the bank was the legal title which passed to the heir or devisee situated; and could form no part of the valuaof the deceased partner, his sale invests the pur

tion of the town of Newbury. As a district chaser with the equitable ownership of the real school tax must be assessed as other town taxes estate, and the right to compel a conveyance of are assessed, namely, on the valuation made by the title from the heir or devisee in a court of the assessors of the property of the inhabitants, equity.

subject to taxation for state, county, and town

taxes, and as these shares cannot be included in HOPPER v. TOWN OF COVINGTOX. (United States that valuation, they cannot be assessed under Circuit Court, Dist. Indiana. October, 1881.) existing provisions of law for a school district

tax. 1: Municipal Bonds— Recitals - Estoppel.-Municipal bonds which contain no recitals are impeachable in the hands of a bona fide holder for

IOWA. value. 2. Ibid- Pleading.-Municipal bonds that con


Oct. 22, 1881. tain no recitals which preclude the municipality from impeaching the bonds in the hands of a Injunction.-An action was commenced against bona fide holder, give no right of action unless 0., attachment issued, and real and personal the complaint shows that the bonds were issued property attached, and one W. garnished. Afterduly and for a proper purpose.

wards an amended petition was filed, alleging,

among other things, that a mortgage of personMASSACHUSETTS.

alty and real estate from 0. to W. was fraudulent; that W. had taken passession of the personalty

and was proceeding to sell the same, and that o. (Supreme Judicial Court.)

was insolvent; and asked that W. be made a deMORSE v. STEARNS. Sept. 1881.

fendant, and enjoined from applying the prop,

erty until amount due her was ascertained, and Legacy- Ambiguity-Bill of Interpleader.Two that plaintiff's lien be declared paramount to nephews of the testator, viz., J; W. Sprague and hers, and she be compelled to first exhaust the J. Sprague Stearns, claimed a legacy given “ to

personal property before applying the real estate. my nephew, J. S. Sprague." Heid, this is a

W.'s insolvency was not alleged, nor her solvency proper case for a bill of interpleader. Extrinsic disputed. The answer denied all fraud, and alevidence of the conduct and the declaration of leged that the mortgages were given for value. the testator are competent to show his intention Held, that motion to dissolve the injunction as to the proper person.

should have been granted. AMOS v. OAKLEY. Sept., 1881.

SUPREME COURT RECORD. Contract— Breach— Evidence. The defendant had agreed to support the plaintiff for the rest of the plaintiff's life. The action was for a breach of

[New cases filed since our last report, up to Dec. 13, 1881.) the contract. The breach occured on June 9, 1879. On September 9, 1879, the day before the No. 1235. Moses Sternberger v. Martha M. Hanna et writ in this action issued. defendant had leased

al. Error to the District Court of Jackson County. 0.

F. Moore, and Irvine Dungan for plaintiff'; Moore & Atto B. the premises conveyed to him by the kinson and Hutchins & Davis for defendants. plaintiff as the consideration for the contract

1236. John McHenry v. Enoch T. Carson. Appeal

Reserved in the District Court of Hamilton County. Judgment of the district court and that of the common McGuffey, Morrell & Strunk for plaintiff; Matthews, pleas reversed; verdict set aside, demurrer to the petiRamsey & Matthews for defendant.

tion sustained, and cause remanded to the court last 1237. Joseph Counts et al. v. Wilhelm Stock. Error named for further proceedings. to the District Court of Miami County. McDonald & Johnson, J., dissented from the first proposition. McKinley fot plaintiffs ; W. S. Thomaš for defendant. 192. Dille v. Ingersoll ot al. Error to the District

Court of Athens County. 1238. Uriah Cook et al. v. French G. Lockwood. Error to the District Court of Union County. J. C. Cam

JOHNSON, J. Held: eron for plaintiffs; P. B. Cole & Son for defendant.

In an action to reoover damagés for assault and battery, where an issue was joined on an answer justifying the

alleged trespass, the court allowed defendant to begin SUPREME COURT OF OHIO.

and close, in offering testimony and in the argument: Held:

1. That unless there were special reasons authorizing JANUARY TERM, 1881.

the court to otherwise direct, the right to begin and close

was in the plaintiff. Hon. JOHN W. OKEY, Chief Justice; Hon.

2. Unless it affirmatively appears that special reasons

did not exist, which would authorize the court to change WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. the order of proceeding at the trial, or, that the plaintiff GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, was prejudiced thereby, a judgment for the defendant

will not be reversed. Judges.

Judgment affirmed.

158. William T. West, Trustee, v. August Klotz and TUESDAY, December 13, 1881. others. Error to the District Court of Erie County.


1. A mechanic furnishing material for the construcNo. 175. Caroline Loomis v. Second Gerinan Building

tion of a mill, under a contract with the owner, may, by Association et al. Error to the District Court of Scioto

his agreement as to the manner of payment, and his acts County.

with respect to the clainis of other creditors, be precluded

from asserting a mechanic's lien, as against such crediLONGWORTH, J.

tors, although he has made no express promise that he L. recovered a judgment in the common pleas will not assert such lien. court against R. for $247.48, in an action for money 2. The proposition of a manufacturing company inonly. R. obtained a second trial under the statute. corporated under the laws of New York, to build a rollR. then gave a mortgage to a Building Associa- ing unill at S., in this state, if its citizens would donate tion. Afterward, upon second trial, L. rocovered a to the company ten acres of land and lend it $150,000, to judgment against R' for $251.80 damages and $135.98 be evidenced by the bonds of the company secured by costs, and levied execution upon the mortgaged prem- mortgage on the property, was accepted by certain citiises. In an action by the Building Association to fore- zens of S., who conveyed' to it such land, loaned to it close the mortgage, marshall liens, and distribute pro- said sum, receiving from the company such bonds and ceeds:

mortgage. Among the persons advancing money, and Held: 1. That the lien of L., to the extent of the accepting bonds so secured, was K., who afterward sold original judgment, with interest from the first day of the such bonds to other persons. · After the mortgage was term at which it was rendered, was the first in order of recorded, but before any considerable part of said sum priority.

was advanced to the company, and before any written 2. That the mortgage was second in order of priority. consent of stockholders of the company to the execution

3. That the lien of the second judgment, to the extent of the mortgage was filed in the office where mortgages that it exceeded in amount the first judgment with in- are recorded, as provided in the statutes of New York, K. terest, was the last in order of priority.

commenced furnishing material for the construction of the Judgment affirmed in part and reversed in part.

mill, under an agreement that he should be paid in 204. William Bell et al. v. Arthur B. McConnell. Er- / monthly instalments out of the moneys received for the ror to the District Court of Mahoning County.

bonds. His account amounted to $76,000, and during the MCILVAINE, J.

time it accrued, he received thereon, in instalments, from

the moneys so loaned to the company, $57,000, and the The double agency of a real estate broker, who assuines company paid out of the moneys advanced to it various to act for both parties to an exchange of 'lands, involves, sums to other creditors. Subsequently, when the comprima facie, inconsistent duties; and he cannot recover pany was in failing circumstances, K. asserted a mechancompensation, from either party, even upon an express ic's lien for the balance due him, and brought suit to enpromise, until it is clearly shown, that each principal had force it: Helo, conceding but without deciding that the full knowledge of all the circumstances connected with objections to the mortgage would under other circum-. his employment by the other which would naturally af- stances be fatal, that K, is precluded by his acts and fect his action, and had assented to the double employ- agreement from asserting such objections, and that on ment. But when such knowledge and consènt are shown, the facts stated the mortgage lien is superior to the lien ho may recover from each party.

of K. Judgment'affirmed.

Judgment reversed and cause remanded for further pro LONGWORTH, J., dissented.

ceedings. 176. William Howard, adm'r &c. v. Alexander H. 205. James N. Stark v. Zenas Harrison, administrator Brower. Error to the District Court of Clermont County. &c. Error to the District Court of Delaware County.

Dismissed for want of preparation. WHITE, J. Held:

207. Van Hyning Co. v. William Jennings et al. Er1. A verbal promise in the alternative to compensate a ror to the District Court of Columbiana County. Dis. party by will, either in land or money, is within Section 5 missed for want of preparation, of the statute against frauds and perjuries.

208. Eugene Powell v. John J. Reicherts. Error to 2. Where the agreement sued on is within such stat- the District Court of Delaware County. Dismissed for ute, and it is fairly to be inferred from the petition that want of preparation. it is not in writing, the defense of the statute is available 210. Andrev: Warner, administrator &c. v. Brighton on demurrer,

Tanner et al. Error to the District Court of Geauga 3. A verdict canạot be regarded as a finding of the County. Passed for proof of service of plaintiff's brief. value of services as upon a quantum meruit, where the case 216. George F. Avery v. Noah Thomas. Application is not submitted to the jury for such finding, but under

for a writ of habeas corpus. instructions to assess the damages according to the terms Application refused, on the ground that it should be of a void agreement.

made in the inferior courts, in accordance with Ex parte. 4. Under the Act of April 18, 1870, (67 O. L. 113), hus- Shean 25, Ohio St. 440. band and wife are competent witnesses for and against 920. Ohio on relation of the Attorney General v. The each other, except as to the matters therein specified. Cincinnati Street Railway Co. Dismissed. Westerman v. Westerman, (25 0. S. 500), approved and

921. Ohio on relation of the Attorney General v. Robfollowed.

ert M. Shoemaker. Dismissed.

Ohio Law Journal.





fame. Judge Countryman, in his address before the Albany Law School, in speaking of the

proper reward for the services of the attorney, COLUMBUS, OHIO,

: DEC. 22, 1881.

said: “He may require prepayment in whole

or in part, or special security for subsequent payNEW BOOKS.

inent, or he may stipulate for contingent compensation

out of the proceeds of the litigation.” To this USAGES AND CUSTOMS. THE LAW OF language Brown took exceptions, as a bull excepts USAGES CUSTOMS

ILLUSTRATIVE to the flaunting of a red rag. His attacks upon CASES.

By John
John D. Lawsox; pp. LXIX,

the lecturer were so intemperate and so senseless, 552, 86.00. St. Louis: F. H. Thomas & Co., that in self defense Judge Countryman took up 1881.

the cudgel and at the first pass demoralized Every lawyer in active practice finds himself Brown, although through the columes of his own compelled, at times recurring with greater or organ. Brown responded, led on by the Judge's less frequency to battle with the prevalence or peculiar method, and placed himself in a trap otherwise of a custom or usage which is held toex- ont of which even the instinct of a blind man tend or restrict the meaning or interpretation ought to have kept him.

ought to have kept him. But when the trap of some express or implied contract. At such was sprung it did not catch the Honorable Mr. times it is frequently also very hard indeed to Brown, for he refused to publish the Judge's comfind case law to fit the emergency, The editor .munication. That communication with a hisof “Usages and Customs " has, by collecting all tory of all the facts and circunstances now decided cases wherein rulings have been made reaches the profession and is handed down to upon any custom or usage, conferred an especial posterity through this little book. The few perboon upon the profession at such trying times. sons who read the Albany Law Journal will reThe 'self gratulation of the author to the effect member that the editor procured a few communthat no apology is needed for entering npon a

ications from his special cronies to bolster up his field not properly filled by the many books treat

senseless theories of wickedness in taking coning upon the same subject, is especially oppor- tingent fees. tune and full of suggestiveness of the fact that

From these defenders of Brown's faith, Judge this work is practically the first in a wide, and Countryman takes the lion's skin and shows the hitherto barren field. The immense amount of contemptible asses thereby concealed. Even labor which has been necessary in the prepara- | Judge Cooley, of Michigan, is made to look very tion of the book before us will be appreciated small as a preacher of morality when the fact is when we say that between three thousand and

shown that while the State of Michigan pays four thousand cases are cited. These necessarily him a salary for all his time he steals from the cover the entire range of custom or usage and

State a very large part thereof, devoting it to we can hardly imagine any case or circumstance

book making, while the litigants in his courts not met and covered by some of this great num

are praying for action to be taken on their pendber of citations. Hundreds of cases are given ing cases. in full, and the book is upon the whole such an

But, to Mr. Brown, the author of “ Legal Serone as must be seen and read to be appreciated, vices,” pays his particular respects. He shows and should be placed in every lawyer's library

that while at the bar, Brown was notorious for as a safe guard against the day when questions getting all the business he possibly could upon

contingent fees. This portion is 80 pointed that will arise upon usages and customs.

we cannot resist the temptation to quote verbatim: COMPENSATION FOR LEGAL SERVICES. “He rapidly outgrew in toto the percentage sysTHE ETHICS OF COMPENSATION FOR LEGAL SER- tem. His conception of a contingency culmi

An address before the Albany Law School, and nated in claiming the whole or nothing. Nor an answer to Hostile Critics. By Edwin COUNTRY- was he at all particular about limiting his ope12 mo; pp. 150. Albany, N. Y.: W. C.

Albany, N. Y.: W. C. rations to his own clientage. He was strictly Little & Co., 1882.

impartial and even generous in the selection of This little book before us is positively refresh- victims-clients, dear friends, members of the ing in the remarkably cool and scientific man- bar, aye, even judges and his own partners ner in which it goes after and secures the scalp- very few escaped. * * The man failed utterly lock of Irving Brown, Esq., of Albany Law Journal at the bar and was obliged to find more congen.



ial employment elsewhere. The interesting tion prayed judgment for the sums claimed to be and peculiar phase, however, consists in the due with interest and for an account. upshot of the affair. He is now a self-consti

The answer, among other matters of defense, tuted censor of the profession and is keenly not accrued to her within six years prior to

alleged that the plaintiff's cause of action had sensitive to the slightest violation of profes- bringing suit. This the reply denied. sional duty and decorum !”

The court of common pleas, without passing The quotations, from the Albany Law Journal, upon any other issues, held that the plaintiff's wherein Brown, a few years ago, as zealously de

cause of action was barred by the Statute of Lim

itations and rendered judgment in favor of defended the taking of contingent fees as he now


denounces the same, show a conversion as rapid This judgment was reversed in the district

as that of Saul of Tarsus, although all the conditions are reversed; Brown was converted from BY THE COURT. sense to nonsense and his eyes have acquired The district court did not err in reversing the scales which render him incurably blind.

judginent of the court of common pleas. The Taken altogether the book is worth its weight plaintiffs devisor was within the saving clause

$ S. , in trade dollars.

her coverture.

Judgment affirmed.

[This case will appear in 37 0. S.]




December 6, 1881.

SAMUEL CRIST. An action by an assignee of the claim of a married woman, against her husband for monies belonging to her

December 6, 1881. and converted by the husband to his own use, is not barred by the limitations of Chap. 3 of the Code of 1853, A payment by a principal debtor which will take a (2 S. & C. 947), where less than six years have intervened case out of the statute of limitations as to him, will have between such assignment and the commencement of the the same effect as to his surety, who is present for the action,

purpose of seeing that the payment is made and credited,

and makes no statement that any limitation shall be Error to the District Court of Sandusky placed on the effect of such act. County.

Error to the District Court of Fairfield County. The action was originally brought December

On December 23, 1873, Manasseh Glick, as ad23d, 1873, in the court of common pleas by the defendant in error against her father, Joseph in the Court of Common Pleas of Fairfield County,

ministrator of Jacob W. Alspach, brought suit Simmerson, now deceased. He having died dur

against Samuel Crist. The action was upon a ing the pendency of the action it was revived against his administrator, the present dated December 10, 1853, due one day after date,

joint and several promissory note, for $453.64, plaintiff in error. The petition of plaintiff alleged, that Rhoda payable to the order of said Jacob W. Alspach,

and executed by Peter Brown as principal Simmerson, her mother and wife of Joseph, died debtor, and Charles Brown and said Samuel about October, 1871, leaving a will, whereby she Crist as his sureties. Crist pleaded the statute devised to her daughter, the plaintiff

, her inter- of limitations of fifteen years, and the sole quesest in a lot of land in Clyde, Sandusky County, tion in the case is whether the action is barred. together with all her claims or rights of action

The facts are as follows: There are two credits, against her husband. It further.alleged, that in one of $245, dated May 2, 1862, and the other of March, 1863, this lot was purchased by Joseph $40, dated September 2, 1871, endorsed on the and Rhoda jointly for $520, the conveyance be- note, and said sums were actually received by ing to them as tenants in common of equal Alspach, on the days stated, and then credited shares, Rhoda paying $200 of the purchase on the note. As to the first credit, the proof is money out of her own separate monies. That at

that Peter Brown, who was in the army, sent to this time Rhoda owned a certain promissory said Charles Brown $245, and directed that it be note for $100, which Joseph collected, and ap- paid to Alspach. Charles Brown took the money plied $70 of the proceeds toward paying the pur- to Crist's house, informing Crist that Peter chase money, and applied the balance to his own Brown had sent it. They then went together to use. : The deferred payments were secured by a Alspach's house, when Charles Brown informed purchase money mortgage on the premises. To | Alspach that Peter Brown had sent the money, meet the deferred payments, when the same be

and thereupon Charles, in the presence of Crist, came due, Joseph and Rhoda sold & portion of paid the money to Alspach, who credited it on the the lot for $450, out of which the balance of the note. On a subsequent day Crist remarked to purchase money $250 was paid. The rest was ap- another person that they (Crist and Charles propriated by Joseph to his own use. The poti- | Brown) had paid to Alspach the money which Peter Brown had sent; and that Alspach was The question which is decisive of this caso getting uneasy about the note, but that he (Crist) arises on a demurrer to the petition. was good enough and would stand by it. The For cause of action it is alleged, that John M. other payment was made by Peter Brown. At Anderson, died January 24, 1877, by the wronghis request Crist accompanied him to make the ful act of William H. 8. Turner, who discharged payment, and was present when the money was a loaded' gun at him, inflicting a mortal wound, handed to Alspach and credited on the note. that plaintiff was appointed and qualified as his Crist made no objection to either payment, nor administrator, that soon thereafter Turner died did he make any statement to indicate any lim- and defundant became his administrator, that itation as to the effect which should be given to Anderson left a wife and child still living, dethe payments. The court of common pleas, to pendent on him for a support, that by said which the cause was submitted on the petition, wrongful act, Turner injured the estate of said answer, reply and testimony, held that the ac- Anderson to the amount of five thousand dollars, tion was not barred by the statute of limitations, and that a claim for that sum was duly preand rendered judgment in favor of the plaintiff sented and disallowed by the defendant as adfor $734.92, but the judgment was reversed in ministrator of Turner. the district court, and this petition in error is The prayer is for a judgment for five thousand prosecuted by the administrator to obtain a re- dollars against the estate of said Turner. versal of the judgment of the district court. To this there is a demurrer, on the ground

M. A. Daugherty and J. S. Brasee for plaint- that the cause of action, if any, abated by the iff in error.

death of Turner. Martin & McNeill for defendant in error.

The demurrer was overruled, issue was joined,

and trial had, which resulted in a verdict for BY THE COURT.

plaintiff, followed by a judgment.

The same By the statute (Civil Code, $ 24, R. S. $ 4992), question that arose upon the demurrer was when payment is made upon a demand founded

made during the trial, on a motion for a new on contract, an action may be brought thereon trial, and on error to the district court where the within the time limited, after such payment. judgment was affirmed. In this case the limitation was fifteen years It is now sought to reverse these several judg(Civil Code, $ 13, R. S. § 4980), and each payments. ment, as to Peter Brown, prevented the running JOHNSON, J. of the statute for the period of fifteen years from The petition alleges that the death of Anderthe time of.such payment. It is said, however, son was caused by Turner's wrongful act, and that the same result did not follow as to Crist. that he died before this action was commenced. But we think otherwise. Crist, when the pay- Did the right to institute and prosecute this ments were made, stood by consenting, and there action survive against the personal representais no reason for saying that the payments had tive of Turner? This depends on a construction not the same effect as to him, that they had as of the act requiring compensation for causing to Peter Brown. The views expressed by Cromp-death by wrongful act, neglect or default, (2 S. ton, J., in Jackson v. Wooley, 8 Ell. & Bl. 778, & C. 1139), and of Sec. 398 of the Code of Civil and by Ross, J., in Bailey 6. Corliss, 51 Vt. 366, Procedure. in apparent conflict with the conclusion at which

This act was passed March 25th, 1851. It was we have arrived, are founded on statutes differ- an innovation upon the common law in allowing ent in terms from that above cited. In holding an action for damages resulting from death, and that the judgment of the district court should be in authorizing an action in favor of the personal reversed, and that of the court of common pleas representative to recover such damages. The affirmed, our decision is not in conflict with any right to maintain such an action by the personal of the cases decided in this court, and referred to representative of the deceased for causing his by counsel for plaintiff in error, but is supported death, is authorized against the person who, or by them.

the corporation which would have been liable if Judgment reversed.

death had not ensued, whenever the death shall [This case will appear in 37, O. S.]

have been caused by the wrongful act, neglect or

default of such person or corporation. The statSUPREME COURT OF OHIO.

ute itself gives the test of the right to such an

action. If the party injured, could, had death GEORGE RUSSELL

not ensued, have recovered for his injuries then

where death does ensue, his personal representa CHARLES T. SUNBURY.

tive may recover. The foundation of the former

action is the personal injuries to himself by the December 6, 1881.

wrongful act, neglect or default of defendant. The right to commence an action for wrongfully causing The same injuries causing death are the foundadeath, under“ An Act requiring compensation for causing death by wrongful act, neglect or default,” passed

tion for the right of action in favor of his perMarch 25, 1881, (2 8. & C. 1139), a bates by the death of the sonal representative. The amount recovered is wrong-doer.

for the exclusive benefit of his widow and next Error to the District Court of Ashtabula of kin resulting from the death. In his action

the measure of damages is determined by the

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