Digest of Decisions. UNITED STATES COURTS. SHANKS, EX'R, ". KLEIN. (Supreme Court of the United States. October 31, 1881.) 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 contract had been broken on or before June 9, 1879. If the contract was a continuing one for the plaintiff's life, it was entire, and a complete breach would justify the plaintiff in treating it as absolutely at an end. LITTLE v. LITTLE. Sept., 1881. Taxation-National Bank Stock-School Tax.-The 1. Partnership-Real Estate-Debts-Equities.— Real estate purchased with partnership funds for partnership purposes, though the title be taken in the individual name of one or both 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 partnership and to adjust the equities of the copartners. 2. Ibid-Conveyance of Equitable Title-Legal Title. For this purpose, in case of the death of one of the partners, the survivor can sell real estate so situated, and, though he cannot convey the legal title which passed to the heir or devisee of the deceased partner, his sale invests the purchaser with the equitable ownership of the real estate, and the right to compel a conveyance of the title from the heir or devisee in a court of equity. HOPPER v. TOWN OF COVINGTON. (United States Circuit Court, Dist. Indiana. October, 1881.) 1. Municipal Bonds Recitals - Estoppel.-Municipal bonds which contain no recitals are impeachable in the hands of a bona fide holder for value. 2. Ibid-Pleading.—Municipal bonds that contain no recitals which preclude the municipality from impeaching the bonds in the hands of a bona fide holder, give no right of action unless the complaint shows that the bonds were issued duly and for a proper purpose. MASSACHUSETTS. (Supreme Judicial Court.) MORSE v. STEARNS. Sept. 1881. Legacy-Ambiguity Bill of Interpleader. Two nephews of the testator, viz., J. W. Sprague and J. Sprague Stearns, claimed a legacy given "to my nephew, J. S. Sprague." Held, this is a proper case for a bill of interpleader. Extrinsic evidence of the conduct and the declaration of the testator are competent to show his intention as to the proper person. AMOS v. OAKLEY. Sept., 1881. 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 the contract. The breach occured on June 9, 1879. On September 9, 1879, the day before the writ in this action issued, defendant had leased to B. the premises conveyed to him by the plaintiff as the consideration for the contract longing to the inhabitant of a school district in one town could be lawfully taxed for the purpose of defraying the expense of building a schoolhouse in the district of another town, under Gen. Stats. c. 39 and Stats. 1873, c. 315. Held, the shares of the defendant's intestate could be assessed only in Newburyport, where the bank was situated; and could form no part of the valuation of the town of Newbury. As a district school tax must be assessed as other town taxes are assessed, namely, on the valuation made by the assessors of the property of the inhabitants, subject to taxation for state, county, and town taxes, and as these shares cannot be included in that valuation, they cannot be assessed under existing provisions of law for a school district tax. IOWA. SWEET, DEMPSTER & Co. v. Oliver and oTHERS. Oct. 22, 1881. Injunction. An action was commenced against O., attachment issued, and real and personal property attached, and one W. garnished. Afterwards an amended petition was filed, alleging, among other things, that a mortgage of personalty and real estate from O. to W. was fraudulent; that W. had taken passession of the personalty and was proceeding to sell the same, and that O. was insolvent; and asked that W. be made a defendant, and enjoined from applying the property until amount due her was ascertained, and that plaintiff's lien be declared paramount to hers, and she be compelled to first exhaust the personal property before applying the real estate. W.'s insolvency was not alleged, nor her solvency disputed. The answer denied all fraud, and alleged that the mortgages were given for value. Held, that motion to dissolve the injunction should have been granted. SUPREME COURT RECORD. [New cases filed since our last report, up to Dec. 13, 1881.] No. 1235. Moses Sternberger v. Martha M. Hanna et al. Error to the District Court of Jackson County. O. F. Moore, and Irvine Dungan for plaintiff; Moore & Atkinson and Hutchins & Davis for defendants. 1236. John McHenry v. Enoch T. Carson. Appeal Reserved in the District Court of Hamilton County. McGuffey, Morrell & Strunk for plaintiff; Matthews, Ramsey & Matthews for defendant. 1237. Joseph Counts et al. v. Wilhelm Stock. Error to the District Court of Miami County. McDonald & McKinley for plaintiffs; W. S. Thomas for defendant. 1238. Uriah Cook et al. v. French G. Lockwood. Error to the District Court of Union County. J. C. Cameron for plaintiffs; P. B. Cole & Son for defendant. SUPREME COURT OF OHIO. JANUARY TERM, 1881. Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges. TUESDAY, December 13, 1881. GENERAL DOCKET. No. 175. Caroline Loomis v. Second German Building Association et al. Error to the District Court of Scioto County. LONGWORTH, J. L. recovered a judgment in the common pleas court against R. for $247.48, in an action for money only. R. obtained a second trial under the statute. R. then gave a mortgage to a Building Association. Afterward, upon second trial, L. recovered a judgment against R for $251.80 damages and $135.98 costs, and levied execution upon the mortgaged premises. In an action by the Building Association to foreclose the mortgage, marshall liens, and distribute proceeds: Held: 1. That the lien of L., to the extent of the original judgment, with interest from the first day of the term at which it was rendered, was the first in order of priority. 2. That the mortgage was second in order of priority. 3. That the lien of the second judgment, to the extent that it exceeded in amount the first judgment with interest, was the last in order of priority. Judgment affirmed in part and reversed in part. 204. William Bell et al. v. Arthur B. McConnell. Error to the District Court of Mahoning County. MCILVAINE, J. The double agency of a real estate broker, who assuines to act for both parties to an exchange of lands, involves, prima facie, inconsistent duties; and he cannot recover compensation, from either party, even upon an express promise, until it is clearly shown, that each principal had full knowledge of all the circumstances connected with his employment by the other which would naturally affect his action, and had assented to the double employment. But when such knowledge and consent are shown, he may recover from each party. Judgment affirmed. LONGWORTH, J., dissented. 176. William Howard, adm'r &c. v. Alexander H. Brower. Error to the District Court of Clermont County. WHITE, J. Held: 1. A verbal promise in the alternative to compensate a party by will, either in land or money, is within Section 5 of the statute against frauds and perjuries. 2. Where the agreement sued on is within such statute, and it is fairly to be inferred from the petition that it is not in writing, the defense of the statute is available on demurrer, 3. A verdict cannot be regarded as a finding of the value of services as upon a quantum meruit, where the case is not submitted to the jury for such finding, but under instructions to assess the damages according to the terms of a void agreement. 4. Under the Act of April 18, 1870, (67 O. L. 113), husband and wife are competent witnesses for and against each other, except as to the matters therein specified. Westerman v. Westerman, (25 O. S. 500), approved and followed. In an action to recover damages for assault and battery, where an issue was joined on an answer justifying the alleged trespass, the court allowed defendant to begin and close, in offering testimony and in the argument: Held: 1. That unless there were special reasons authorizing the court to otherwise direct, the right to begin and close was in the plaintiff. 2. Unless it affirmatively appears that special reasons did not exist, which would authorize the court to change the order of proceeding at the trial, or, that the plaintiff was prejudiced thereby, a judgment for the defendant will not be reversed. Judgment affirmed. 158. William T. West, Trustee, v. August Klotz and others. Error to the District Court of Erie County. OKEY, С. J. 1. A mechanic furnishing material for the construction of a mill, under a contract with the owner, may, by his agreement as to the manner of payment, and his acts with respect to the clainis of other creditors, be precluded from asserting a mechanic's lien, as against such creditors, although he has made no express promise that he will not assert such lien. 2. The proposition of a manufacturing company incorporated under the laws of New York, to build a rolling mill at S., in this state, if its citizens would donate to the company ten acres of land and lend it $150,000, to be evidenced by the bonds of the company secured by mortgage on the property, was accepted by certain citizens of S., who conveyed to it such land, loaned to it said sum, receiving from the company such bonds and mortgage. Among the persons advancing money, and accepting bonds so secured, was K., who afterward sold such bonds to other persons. After the mortgage was recorded, but before any considerable part of said sum was advanced to the company, and before any written consent of stockholders of the company to the execution of the mortgage was filed in the office where mortgages are recorded, as provided in the statutes of New York, K. commenced furnishing material for the construction of the mill, under an agreement that he should be paid in monthly instalments out of the moneys received for the bonds. His account amounted to $76,000, and during the time it accrued, he received thereon, in instalments, from the moneys so loaned to the company, $57,000, and the company paid out of the moneys advanced to it various sums to other creditors. Subsequently, when the company was in failing circumstances, K. asserted a mechanic's lien for the balance due him, and brought suit to enforce it: Hela, conceding but without deciding that the objections to the mortgage would under other circum-stances be fatal, that K, is precluded by his acts and agreement from asserting such objections, and that on the facts stated the mortgage lien is superior to the lien of K. Judgment reversed and cause remanded for further pro ceedings. 205. James N. Stark v. Zenas Harrison, administrator &c. Error to the District Court of Delaware County. Dismissed for want of preparation. 207. Van Hyning Co. v. William Jennings et al. Error to the District Court of Columbiana County. Dismissed for want of preparation. 208. Eugene Powell v. John J. Reicherts. Error to the District Court of Delaware County. Dismissed for want of preparation. 210. Andrev Warner, administrator &c. v. Brighton Tanner et al. Error to the District Court of Geauga County. Passed for proof of service of plaintiff's brief. 216. George F. Avery v. Noah Thomas. Application for a writ of habeas corpus. Application refused, on the ground that it should be made in the inferior courts, in accordance with Ex parte. Shean 25, Ohio St. 440. 920. Ohio on relation of the Attorney General v. The Cincinnati Street Railway Co. Dismissed. 921. Ohio on relation of the Attorney General v. Robert M. Shoemaker. Dismissed. fame. Judge Countryman, in his address before the Albany Law School, in speaking of the proper reward for the services of the attorney, said: "He may require prepayment in whole or in part, or special security for subsequent payinent, or he may stipulate for contingent compensation out of the proceeds of the litigation." To this language Brown took exceptions, as a bull excepts to the flaunting of a red rag. His attacks upon the lecturer were so intemperate and so senseless, that in self defense Judge Countryman took up the cudgel and at the first pass demoralized Brown, although through the columes of his own organ. Brown responded, led on by the Judge's peculiar method, and placed himself in a trap out of which even the instinct of a blind man ought to have kept him. But when the trap was sprung it did not catch the Honorable Mr. Brown, for he refused to publish the Judge's com tory of all the facts and circumstances now reaches the profession and is handed down to posterity through this little book. The few persons who read the Albany Law Journal will remember that the editor procured a few communications from his special cronies to bolster up his senseless theories of wickedness in taking contingent fees. Every lawyer in active practice finds himself compelled, at times recurring with greater or less frequency to battle with the prevalence or otherwise of a custom or usage which is held to extend or restrict the meaning or interpretation of some express or implied contract. At such times it is frequently also very hard indeed to find case law to fit the emergency, The editor.munication. That communication with a hisof "Usages and Customs" has, by collecting all decided cases wherein rulings have been made upon any custom or usage, conferred an especial boon upon the profession at such trying times. The self gratulation of the author to the effect that no apology is needed for entering npon a field not properly filled by the many books treating upon the same subject, is especially opportune and full of suggestiveness of the fact that this work is practically the first in a wide, and hitherto barren field. The immense amount of labor which has been necessary in the preparation of the book before us will be appreciated when we say that between three thousand and four thousand cases are cited. These necessarily cover the entire range of custom or usage and we can hardly imagine any case or circumstance not met and covered by some of this great number of citations. Hundreds of cases are given in full, and the book is upon the whole such an one as must be seen and read to be appreciated, and should be placed in every lawyer's library as a safe guard against the day when questions will arise upon usages and customs. COMPENSATION FOR LEGAL SERVICES. THE ETHICS OF COMPENSATION FOR LEGAL SERVICES. An address before the Albany Law School, and an answer to Hostile Critics. By EDWIN COUNTRYMAN. 12 mo; pp. 150. Albany, N. Y.: W. C. Little & Co., 1882. This little book before us is positively refreshing in the remarkably cool and scientific manner in which it goes after and secures the scalplock of Irving Brown, Esq., of Albany Law Journal From these defenders of Brown's faith, Judge Countryman takes the lion's skin and shows the contemptible asses thereby concealed. Even Judge Cooley, of Michigan, is made to look very small as a preacher of morality when the fact is shown that while the State of Michigan pays him a salary for all his time he steals from the State a very large part thereof, devoting it to book making, while the litigants in his courts are praying for action to be taken on their pending cases. But, to Mr. Brown, the author of "Legal Services," pays his particular respects. He shows that while at the bar, Brown was notorious for getting all the business he possibly could upon contingent fees. This portion is so pointed that we cannot resist the temptation to quote verbatim: "He rapidly outgrew in toto the percentage system. His conception of a contingency culminated in claiming the whole or nothing. Nor was he at all particular about limiting his operations to his own clientage. He was strictly impartial and even generous in the selection of victims-clients, dear friends, members of the bar, aye, even judges and his own partnersvery few escaped. * The man failed utterly at the bar and was obliged to find more congen ial employment elsewhere. The interesting and peculiar phase, however, consists in the upshot of the affair. He is now a self-constituted censor of the profession and is keenly sensitive to the slightest violation of professional duty and decorum!" The quotations, from the Albany Law Journal, wherein Brown, a few years ago, as zealously defended the taking of contingent fees as he now denounces the same, show a conversion as rapid as that of Saul of Tarsus, although all the conditions are reversed; Brown was converted from sense to nonsense and his eyes have acquired scales which render him incurably blind. Taken altogether the book is worth its weight in trade dollars. SUPREME COURT OF OHIO. ALONZO SIMMERSON, ADM'R, V. EMERETTA TENNERY. December 6, 1881. An action by an assignee of the claim of a married woman, against her husband for monies belonging to her and converted by the husband to his own use, is not barred by the limitations of Chap. 3 of the Code of 1853, (2 S. & C. 947), where less than six years have intervened between such assignment and the commencement of the action. Error to the District Court of Sandusky County. The action was originally brought December 23d, 1873, in the court of common pleas by the defendant in error against her father, Joseph Simmerson, now deceased. He having died during the pendency of the action it was revived against his administrator, the present plaintiff in error. The petition of plaintiff alleged, that Rhoda Simmerson, her mother and wife of Joseph, died about October, 1871, leaving a will, whereby she devised to her daughter, the plaintiff, her interest in a lot of land in Clyde, Sandusky County, together with all her claims or rights of action against her husband. It further alleged, that in March, 1863, this lot was purchased by Joseph and Rhoda jointly for $520, the conveyance being to them as tenants in common of equal shares, Rhoda paying $200 of the purchase money out of her own separate monies. That at this time Rhoda owned a certain promissory note for $100, which Joseph collected, and applied $70 of the proceeds toward paying the purchase money, and applied the balance to his own. use. The deferred payments were secured by a purchase money mortgage on the premises. To meet the deferred payments, when the same became due, Joseph and Rhoda sold a portion of the lot for $450, out of which the balance of the purchase money $250 was paid. The rest was appropriated by Joseph to his own use. The peti tion prayed judgment for the sums claimed to be due with interest and for an account. alleged that the plaintiff's cause of action had The answer, among other matters of defense, alleged that the plaintiff's cause of action had not accrued to her within six years prior to bringing suit. This the reply denied. The court of common pleas, without passing upon any other issues, held that the plaintiff's cause of action was barred by the Statute of Limitations and rendered judgment in favor of defendants. This judgment was reversed in the district A payment by a principal debtor which will take a case out of the statute of limitations as to him, will have the same effect as to his surety, who is present for the purpose of seeing that the payment is made and credited, and makes no statement that any limitation shall be placed on the effect of such act. Error to the District Court of Fairfield County. On December 23, 1873, Manasseh Glick, as adin the Court of Common Pleas of Fairfield County, ministrator of Jacob W. Alspach, brought suit against Samuel Crist. The action was upon a dated December 10, 1853, due one day after date, joint and several promissory note, for $453.64, payable to the order of said Jacob W. Alspach, and executed by Peter Brown as principal debtor, and Charles Brown and said Samuel Crist as his sureties. Crist pleaded the statute of limitations of fifteen years, and the sole question in the case is whether the action is barred. The facts are as follows: There are two credits, one of $245, dated May 2, 1862, and the other of $40, dated September 2, 1871, endorsed on the note, and said sums were actually received by Alspach, on the days stated, and then credited on the note. As to the first credit, the proof is that Peter Brown, who was in the army, sent to said Charles Brown $245, and directed that it be paid to Alspach. Charles Brown took the money to Crist's house, informing Crist that Peter Brown had sent it. They then went together to Alspach's house, when Charles Brown informed Alspach that Peter Brown had sent the money, and thereupon Charles, in the presence of Crist, paid the money to Alspach, who credited it on the note. On a subsequent day Crist remarked to another person that they (Crist and Charles Brown) had paid to Alspach the money which Peter Brown had sent; and that Alspach was getting uneasy about the note, but that he (Crist) was good enough and would stand by it. The other payment was made by Peter Brown. At his request Crist accompanied him to make the payment, and was present when the money was handed to Alspach and credited on the note. Crist made no objection to either payment, nor did he make any statement to indicate any limitation as to the effect which should be given to the payments. The court of common pleas, to which the cause was submitted on the petition, answer, reply and testimony, held that the action was not harred by the statute of limitations, and rendered judgment in favor of the plaintiff for $734.92, but the judgment was reversed in the district court, and this petition in error is prosecuted by the administrator to obtain a reversal of the judgment of the district court. M. A. Daugherty and J. S. Brasee for plaint iff in error. Martin & McNeill for defendant in error. The question which is decisive of this case arises on a demurrer to the petition. For cause of action it is alleged, that John M. Anderson, died January 24, 1877, by the wrongful act of William H. H. Turner, who discharged a loaded gun at him, inflicting a mortal wound, that plaintiff was appointed and qualified as his administrator, that soon thereafter Turner died. and defendant became his administrator, that Anderson left a wife and child still living, dependent on him for a support, that by said wrongful act, Turner injured the estate of said Anderson to the amount of five thousand dollars, and that a claim for that sum was duly presented and disallowed by the defendant as administrator of Turner. The prayer is for a judgment for five thousand dollars against the estate of said Turner. To this there was a demurrer, on the ground that the cause of action, if any, abated by the death of Turner. The demurrer was overruled, issue was joined, and trial had, which resulted in a verdict for plaintiff, followed by a judgment. The same question that arose upon the demurrer was made during the trial, on a motion for a new trial, and on error to the district court where the judgment was affirmed. It is now sought to reverse these several judg JOHNSON, J. The petition alleges that the death of Anderson was caused by Turner's wrongful act, and that he died before this action was commenced. By the statute (Civil Code, § 24, R. S. $ 4992), when payment is made upon a demand founded on contract, an action may be brought thereon within the time limited, after such payment. In this case the limitation was fifteen years (Civil Code, § 13, R. S. § 4980), and each payments. ment, as to Peter Brown, prevented the running of the statute for the period of fifteen years from the time of such payment. It is said, however, that the same result did not follow as to Crist. But we think otherwise. Crist, when the payments were made, stood by consenting, and there is no reason for saying that the payments had not the same effect as to him, that they had as to Peter Brown. The views expressed by Crompton, J., in Jackson v. Wooley, 8 Ell. & Bl. 778, and by Ross, J., in Bailey v. Corliss, 51 Vt. 366, in apparent conflict with the conclusion at which we have arrived, are founded on statutes different in terms from that above cited. In holding that the judgment of the district court should be reversed, and that of the court of common pleas affirmed, our decision is not in conflict with any of the cases decided in this court, and referred to by counsel for plaintiff in error, but is supported by them. Judgment reversed. [This case will appear in 37, O. S.] SUPREME COURT OF OHIO. GEORGE RUSSELL V. CHARLES T. SUNBURY. December 6, 1881. The right to commence an action for wrongfully causing death, under "An Act requiring compensation for causing death by wrongful act, neglect or default," passed March 25, 1851, (2 S. & C. 1139), abates by the death of the wrong-doer. Error to the District Court of Ashtabula County. Did the right to institute and prosecute this action survive against the personal representative of Turner? This depends on a construction of the act requiring compensation for causing death by wrongful act, neglect or default, (2 S. & C. 1139), and of Sec. 398 of the Code of Civil Procedure. This act was passed March 25th, 1851. It was an innovation upon the common law in allowing an action for damages resulting from death, and in authorizing an action in favor of the personal representative to recover such damages. The right to maintain such an action by the personal representative of the deceased for causing his death, is authorized against the person who, or the corporation which would have been liable if death had not ensued, whenever the death shall have been caused by the wrongful act, neglect or default of such person or corporation. The statute itself gives the test of the right to such an action. If the party injured, could, had death not ensued, have recovered for his injuries then where death does ensue, his personal representa tive may recover. The foundation of the former action is the personal injuries to himself by the wrongful act, neglect or default of defendant. The same injuries causing death are the foundation for the right of action in favor of his personal representative. The amount recovered is for the exclusive benefit of his widow and next of kin resulting from the death. In his action the measure of damages is determined by the |
