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REPLEVIN—EXCESSIVE TAX.-Repleviu will not lie MAINE SUPREME COURT ABSTRACT.* against the collector of taxes to recover personal property seized to satisfy a tax levied by the proper officer, SALE-CONDITIONAL-MEANING OF WORDS QUESand it does not matter that the levy is excessive, and

FOR JURY PRACTICE SUBMITTING CASE that fact is apparent on the face of the tax-book; cit WEIGHT OF EVIDENCE.-(1) A sale of a horse to be ing Rubey v. Shain, 54 Mo. 207; and Ranney v. Bader, kept by the seller till a future day, and if then brought 67 id. 476, and distinguishing Henry v. Bel), 75 id. 194. to the purchaser to be paid for, there being no payment Mowrer v. Helferstine. Opinion by Heury, J.

or formal delivery, and the purchaser obtaining no ADMINISTRATION-ORIER OF SALE OF REAL ESTATE, possession further than that the horse was present IMPEACHMENT OF. -Au order of sale of real estate is when the conversation took place, is not a sufficient not such a final order as will conclude the heirs of the sale and delivery against one in the condition of a subdecedent from showing, upon the incoming of the re sequent purchaser. The first sale was conditional port of sale, that there are no debts, or that there are only. (2) It is the province of the jury to find what personal assets sufficient to pay all debts, or any other words were used and the meaning of them, where an fact tending to show that the order ought not to have oral bargain is made. But the court may inform the been made. Merritt v. Merritt, 62 Mo. 150; Henry v. jury what interpretations of the language used would McKerlie, 78 id. 416. Fenix v. Fenix. Opinion by Mar be possible and permissible, and the jury must detertin, Comr.

mine the meaning within the limits prescribed. (3) A CLOUD ON TITLE-CHANGE OF VENUE-VOID DEED. judge may withhold a case from the consideration of -In an action against several defendants, originat the jury when there is no evidence upon wbich they ing in Hickory county, some of the defendants applied can in any justifiable view find for the party producing for a change of venue, and the court ordered a change, il, upon whom the burden of proof is imposed. (4) It as to them, to Pettis county. The court in Pettis is not enough to require submission to a jury, that county afterward rendered judgment against one of

there may be a crumb or scintilla of evidence. It the defendants who had not joined in the application must be evidence of legal weight. Beaulieu v. Portfor the change, and who never appeared to the action land Co., 48 Me. 291 ; Brown v. E. & N. A Railway, 58 and was served only by publication; and his land was

id. 384, and cases; Rourke v. Bullens, 8 Gray, 549. sold to satisfy the judgment. In a suit brought by

Connor v. Giles. Opinion by Peters, C. J. this party to set aside the sherill's deed, these facts,

CONTRACT-SALE OF LAND-RESCISSION—RIGATS OF among others, appearing in the petition, helil, that the

SELLER AND PURCHASER. -A contract was made bepetition was bad on demurrer; that the court in Pottis

tween two persons for tho sale by one to the other of a county obtained no jurisdiction of this party; that the

lot of land. The purchaser made a part payment and judgment was therefore a nullity as against him, and

went into the possession and occupation of the premthe deed was void, and so there was nothing upon ises. Afterward the contract was rescinded and the which a court of equity could act. Janney v. Spedden,

purchaser brought an action for what he had paid 38 Mo. 396; (dle v. Odlo, 73 id. 289. Sherwood, J.,

toward the land and recovered without any deduction agreed that no title passed by the sheriff's deed, but

for the use of the premises. Held, in a writ of entry held that it was a cloud upon the plaintiff's title, which

by the seller, that he was entitled to recover with the ought to be removed by a suitable decree. Holland v.

land the value of the rents and profits. Harkness v. Johnson. Opinion by Ewing, ('omr.

McIntire. Opinion by Libbey, J.
PERSON IN POSSESSION.-In ejectment for a strip of

LIMITATIONS — ADMINISTRATOR INSANE PERSON land lying on the dividing line between plaintiff and

STATUTE 1872, CHAPTER - The limitations defendant, defendant had offered evidence of acts and of the statute 1872, chapter 85, for presenting declarations of plaintiff's grantor, since deceased,

claims against an estate to the administrator, aud tending to fix the line as claimed by defendant. Plaint bringing an action thereon, apply to claims held by an iff in rebuttal offered evidence of declarations to the insane person, though such person has no guardian contrary made by his grantor while in possession. during the two years next after the notice of the apHeld, that this latter evidence was competent. The pointment of the administrator. Baker v. Bean, 74 court did not err in admitting the statement of Mrs. Me. 17; Hall v. Bumstead, 20 Pick. 2; Van Steenwyck Jeffries in evidence. She was the owner and in pos v. Washburn, 28. Alb. L. J. 483. Whether sound session of the land at the time the declarations were public policy required an exception from the limitamade and has since deceased. 1 Greenl. Ev., $ 109, and tion in favor of insane persons and infants, was a quesauthorities cited in note b; also Hunnicutt v. Pey. tion for the determination of the Legislature. It did ton, 102 U. S. 33:3; Darrett v. Donnelly, 38 Mo. 493; mot deem it wise to make such exception. A conState to use, etc., v. Schneider, 35 id. 5:33; Burgert v. struction by the court making it would be judicial Borchert, 59 id. 80. Seo note to Deming v. ('arring- legislation. We know no rule for the construction of ton, 30 Am. Dec. 595; S. C., 12 Conn. 1. In the State statutes which would authorize it. Rowell v. Patterof Massachusetts where this subject has been much son. Opinion by Libbey, J. discussed, it is hold that to be admissiblo such declarations must be made by persons in tho possession of


ATION-PAYMENT IN GOODS-BANKRUPTCY OF MAKER. land, and in the act of pointing out their boundaries. Bartlett v. Emerson, Gray, 174; Daggett v. Shaw, 5

-Plaintiff held notes against defendant; defendant Metc. 223; Long v. Colton, 116 Vass. 414. The declar

delivered goods to plaintiff in payment of the notes; ation derives its forco from the fact that it accompan

before the notes were surrendered by plaintiff the deies and qualities an act and is thus a part of the act.

fondant was declared a bankrupt and the sale became Bender v. Pitzer, 27 Penn. St. 333. The weight of au

thereby void. Held, that the plaintiff could recover thority seems to be that in questions of private bound

upon the notes upon the ground that the consideraary declarations of particular facts, as distinguished

tion for a promised surrender of the notes had failed. from reputation, are admissible in evidence when

The assignment in bankruptcy, by its retroactive ef

fect, rendered the sale to the defendant void. A ven: made by persons in possession of tho land when the declarations are made, or wbo are on the land at the

dor in possession impliedly warrants his title to tho time, and are shown to havo knowledge of that

thing sold. Thurston v. Spratt, 52 Me. 202; Huntingwhereof they speak. 102 U. S. 333. Lemmon v. Hart

don v. Hall, 36 id. 501. For the breach of warranty, sook. Opinion by Ewing, ('onr.

*To appear in 16 Maine Reports.


or failure of consideration, the purchaser can rescind. Crom. M. & R. 223; Rideal v. Fort, 11 Ex. 847; MagMarston v. Knight, 29 Me. 341 ; Bryant v. Isburgh, 13 nay v. Burt, 5 Q. B. 381. In a note to Stokes v. Gray, 607. Suing the note rescinds the sale. The de White, supra, in the edition by Hare and Wallace, fendant contends that the object of the sale was to careful annotators, it is said, upon the authority of the defraud the seller's creditors. He cannot set up such cases determined in the Court of Exchequer C'hama defense. Butler v. Moore, 73 Me. 151. The pur- ber, that an arrest by the sheriff, under a writ from chaser does not get that for which he was to pay. It any of the Queen's Courts, of a person privileged from is the same rule as that which applies in favor of a arrest by reason of attendance as a witness under the buyer who buys forged shares in a corporation; or process of another court, does not form the ground of forged bills or notes; or who gets an article different any action at law for damages, but is only the subject from that which was described in the sale. Ile can of an application to the court, under whose authority recover back money if he paid money; or recover in the party had been compelled to appear as a witness; specie any property passed over to the seller. Here the the privilege being, not that of the person, but that of buyer has in his own hands the note which he was to the court, and therefore of discretionary allowance.surrender for the goods, and can collect the same. Smith v. Jones. Opinion by Peters, C. J. Eichholz v. Banister, 17 C. B. (N. S.) 708; Chapman v. Speller, 14 Q. B. 621; see Benj. Sales (3 Am. ed.), s 423, and cases in note. Sup. Ct. of Maine, May 5, 1884.

MINNESOTA SUPREME COURT ABSTRACT. Maxwell v. Jones. Opinion by Peters, C. J. (76 Me. 135.)

NEGLIGENCE RAILROAD COMPANY PROXIMATE ARREST-PRIVILEGE OF WITNESS FROM-ACTION FOR CAUSE — DEFECTIVE MACHINERY PRESUMPTION OF DAMAGES DOES NOT LIE MOTION TO DISCHARGE DUTY TO INSPECT.-(1) In the operation of a freight PROPER.–Au actiou for damages does not lie against train in the night the train broke apart, and the fora plaiutiff for the arrest upon civil process of a defend- ward part of the train, being afterward stopped, was aut who was at the time privileged from arrest as a run into by the detached rear cars, including the cawitness returning home from court. The precise ques boose, and the conductor, who was in the caboose, was tion here presented has not received very much at killed by the collision. Evidence considered as showtention from courts, and there is an almost total ab ing that the immedate cause of the breaking a part of sence of judicial expression in favor of the plaintiff's the train was the letting off of a brake on one of the positiou where the privilege is at common law and not rear cars from the jar of the car in its motion, the by statute. The remedy by action was established brake being so worn that it would not remain wound long ago in New York by statutory enactment, which up when the car was in inotion. The fact that a sudis an implication that the remedy did not exist there den increase of the speed of the locomotive may have at common law. And this accounts for intimations in contributed with the defective brake to cause the cases in that State that damages for a breach of the train to break apart does not prevent the defective privilege are recoverable. Paine and D. Prac. Arrest; brake being deemed a legal and proximate cause of the Snelling v. Watrous, 2 Paige, 314; Salhinger v. Adler, result. Considered further that the stopping of the 2 Robt. 704. Some English statutes givo a right of ac forward part of the train, and the subsequent collision tion iu some cases, or establish other special rewedy, and injury, may be referred to the defective brake as for a violation of the privilege of freedom from


a proximate cause, within the principle that the wrongfrom which an implication arises that no such remedy doer is responsible for injuries which might reasonaexists at the common law in that country. Tidd's bly have been anticipated as a result of his miscouPractice lays down the various remedies that are avail duct. Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); able for a violation of the privilege from arrest be Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. longing to witnesses and all other persons or parties 488; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); in vecessary attendance upon courts, and omits all Campbell v. City of Stillwater, 20 N. W. Rep. 320. mention of a right of action for damages. Text writ- The subsequent collision is further removed from that ers generally are silent upon the question. Iu 2 Add. cause in the order of events, but is it 80 in its causal Torts (4th Eng. ed.), 796, it is said however that “the relation? The answer, upon principles recognized as privilege does not form the ground of any action at being within the scope of the maxim causa proxima law.” And in Cooley's Con. Lim. (5th ed.) 162 (*135), non remota spectutur, is not difficult. The principle is it is said, in note: “The arrest is only voidable; and well settled that a wrong-doer is at least responsible iu general the party will waive the privilege unless he for all the injuries which resulted as natural couseapplies for discbarge by motion or on habeus corpus." quences from his misconduct-such consequences as Not many decided cases touch the point. The early might reasonably have been anticipated as likely to experimental actions were against otlicers, and all of occur. Griggs r. Fleckenstein, supru; Nelson v. Chithem failed. But much of the reasoning of the courts cago, M. & St. P. Ry. ('o., 30 linn. 174; Jobuson v. really went against any action, disregarding any dis- Chicago, M. & St. P. Ry. Co., supru; Martin v. North tiuction between officer and party. The early cases Star Iron Works, 18 N. W. Rep. 109; Savage v. Chiare cited and commented upon in Carle v. Delesder cago, M. & St. P. Ry. Co., id. 272; Railroad Co. v. Kelnier, 13 Me. 363. See Chase v. Fish, 16 id. 132. Some logg, 94 U'. S. 469; Lane v. Atlantic Works, 111 Mass. phases of the question are touched in later cases. Wil- 136; Hill v. Winsor, 118 id. 251; Fairbanks v. Kerr, 70 marth v. Burt, 7 Metc. 257; Aldrich v. Aldrich, 8 id. Penn St. 86; Sheridan v. Brooklyn ('ity, etc., R. Co., 102; Edward Thompsou’s Case, 1.22 Mass. 128; Person 36 N. Y. 39; Lake v. Milliken, 62 Me. 20; Weick v. V. Grier, 66 N. Y. 124. Several English cases take | Lander, 75 11. 93. And whether the injury in a parstrong ground agaivst the maintenauce of such an ac ticular case was such natural and proximate result of tion. In Yearsley v. Heane, 14 M. & W.322, it is said: the wrong complained of, is ordinarily for the deter“The protection is limited to the fact of the individ-mination of the jury. (2) The use by a servant of deual so arrested being entitled to be discharged." In fective and unsafe machinery delivered to him for use the same case it was said by Pollock, C. B., ** Did the by the master, although the servant may have been Legislature mean to give more than this, that is the guilty of negligence in using it, does not reliere the party was arrested he might be discharged, whereby master from responsibility to a fellow servant injured he has the full benefit of the protectiou? I think not. thereby on account of the unsafe condition of the maEwart v. Jones, 14 M. & W. 774; Stokes v. White, 1 chinery furnished. Drymala v. Thompson, 26 Miun.

the absence of all intelligent parliamentary procedure as one great cause of the failure of the revolutionary movement.

Thanking you most sincerely for your kind attention.

Very respectfully yours,

FREDERICK WM. HOLLS. New York, Feb. 9, 1885.

40; Madden v. Minneapolis, etc., R. ('0., 20 N. W. Rep. 317; ('one v. Delaware, etc., R. ('0., 81 N. Y. 206 ; Booth v. Boston, etc., R. ('0., 13 id. 38, (3) There is no legal presumption that it is the duty of the con. ductor of a railway freight train to inspect the cars and machinery of his train, or that he is chargeable with negligence for using cars if the defect was such that it might have been discovered by inspection. Rusier v.

Alinneapolis, etc., R. Co. ()pivion by Dickinson, J. [Decided July 21, 1884.]

SALE-PARTICULAR USE-WARRANTY WAIVER. Where a chattel is to be made or supplied to the order of the purchaser, it is the general rule that there is an implied warranty that it shall be fit for the purpose intended. But where the article ordered and agreed to be furnished is to be of a particular design, pattern or model, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to such design or model, there is no such warranty implied, but only that it should be of good material and workmanship. Cunningham v. IIall, 4 Allen, 274; Mason v. Chappell, 15 Gratt. 586; Chanter v. llopkins, 4 Mees. i W. 3399; Prideaux v. Bunnett, STE. C. L. 613. C. contracted to manufacture and deliver to B. “one of the Cosgrove Cascade Roller Mills, machine to have al capacity of 100 barrels

" VERGIL.” Editor of the albany Law Journal :

The spelling “ Vergil,” in the Court of Appeals opinion by Judge Earl (Chapman v. Phoenix Bank, 85 N. Y. 419), having been alluded to with a “sic”in your pages, it is

proper to state that the name is so spelled in Ilarper & Brothers' edition of Green's History of the English People, vol. I, p. 65, and that the publishers, in reply to my question whether it is a misprint, say: “D. Lewis and other competent authorities support the spelling, Vergil."

Yours respectfully,

B. W. HUNTINGTON. Feb. 4, 1885. [“Vergil” is a well accredited modern form.-ED.]


ins twine capacity collabo.thne dhe stipetaries

: TIFF How 10% decisions were handed down Tues


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to the of the mill amounted to an express day, Feb 10, 1885 : warranty, and that such contract of warranty Judgment affirmed with costs—Daniel P. Barnard not satisfied by delivering machine of

and others, respondents, v. Jobn T. Barnard and a certain size or description, if there proved to be such others, Bloratio G. Onderdonk, appellants; Sarah B. inherent defects in the mill as to prevent its success Aikman, respondent, v. Blaize L. Harsell and another, ful operation, so that ordinarily under proper man

trustees, appellants; In re Will of Ann Martin; Willy agement it could not turn out the stipulated amount

Wallach and another, executors, respondents, v. Comof flour. The express warranty distinguishes this caso morcial Fire Ins. ('0., appellants; Daniel Defreest, refrom Haaso v. Nomemacher, 21 Mimn. 490. Here there spondent, v. Samuel S. Warner and others, appellants; is a written contract obligating the parties to do cer G. Bruco Browni, adm'r, etc., respondent, v. George tain things, and binding upon both. The receipt of a L. Landon, appellant; Sophie Schmid, ada'x, respond. mill otherwise answering the description in the con ent, v. N.Y., L. E. & W. R., appellant; Johanna Donatract was not a waiver of defendant's right to sue upon

hue, respondent, v. Susan R. Kendall and others, appelthe warranty on a subsequent discovery of its breach. lants; ('atherine Murphy, adm's, respondent, v. N. Y., Polhemus v. Heiman, 45 ('al. 573; Mandel v. Buttles, L. E. & W. R. ('o., appellant; Susan Lenbart, adm'x, 21 Minn. 397; Scott v. Raymond, 18 V. W. Rep. 274. respondent, v. N. Y., L. E. & W. R. Co., appellant; Cosgrove v. Burnell. Opinion by Vanderburgh, J. Ida Deweese, adm’x, respondent, v. Boston and Al[Decided July 29, 1881. )

bany R. Co., appellant; Martha A. Beales, executor, etc., respondent, v. James Lyons, appellant; In ro

Final Accounting of Stephen T. Hopkins, executor, CORRESPONDENCE.

etc.; Jos. Blumenthal, respondent, v. Julia A Riley, TIOLLS' MEMOIR OF LIEBER.

adm'x, appellant. -Judgment affirmed and record

remitted to the court below, with directions to proEditor of the Albany Law Journal:

ceed according to law-People, respondent, v. George In your very courteous notice of my paper on Dr. II. Mills, appellant. – - Judgment affirmed without Francis Lieber occurs the following statement:

costs in this court to either party-Rector, etc., of “When a translation of the ('onversations Lexicon

Trinity Church, etc., appellant, v. Jacob H. Vander. could be termed an Encyclopaedia Americana, it is not

bilt, respondent. -Order affirmed and judgment absurprising to learn that it was seriously proposed to soluto ordered for the defendant on the stipulation control Bismarck at Frankfort by a German compen with costs-Ilenry G. ('rouch, appellant, V. William dium from ('ushing's Manual."

M. Hayes, treasurer, etc., respondent.-Judgment This does injustice to the memory of Dr. Lieber. rerersed, new trial granted, costs to abide the eventThe Encyclopædia Americana was much more than Cynthia A. Tolman, adm's, etc., respondent, v. Syraa translation. About half of its articles were original,

cuse, Binghamton and New York Railroad, appellant; and the rest were “adapted” for the new work in a Eugene Lewis, executor, respondent, v. Evos Merritt, manner which involved rewriting as well as translat appellant; Mary A. Brick, adm'x, etc., respondent, v, ing.

Rochester, New York and Pennsylvania Railroad Moreover the body for whose benefit Dr. Lieber

Company, appellant. -Motion for reargument denied thought of translating ('ushing's Manual was, as I

with costs-Stephen 1). Pringle, respondent, v. Charles

1). Leverich, appellant. —Motion to amend remittistated in my paper, the revolutionary Parliament

tur denied with costs-l’eople ex rel. James S. Stranwhich met in St. Paul's church at Frankfort in 1818, ahan and others v. Hubert (). Thompson, commisand of which Bismarck never was a membor. Dr. sioner, etc.—Granted with costs—Mary F. StoughLieber's hard common sense would never have allowed ton, respondent, v. Samuel A. Lewis, appellant.him to seriously propose influencing or controlling the

Motion to vacate order dismissing appeal granted, German Diet (Bundestag), to which Bismarck was ap

without costs—Elizabeth Welch y. John T. Wilson.

- Motion to put on preferred calendar denied withpointed ambassador from Prussia in 1852, by any parli- | out costs-Iu re Accounting of C. A. Waldron, asameutary rules. He was right however in considering siguee.

The Albany Law Journal.


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been very successfully followed in a few instances, as by Underhill on Torts, Desty on Taxation, Law

son on Custom, and some others. And every one ALBANY, FEBRUARY 21, 1885. will agree with Bates in the following: “Law trea

tises so constructed, whether they prore imperfect

or not, will also revolutionize the present inadeCURRENT TOPICS.

quate method of teaching and learning law. I sup

pose no lawyer, of say fifteen years' standing, but R. CLEMENT BATES, in the Cincinnati Lair

feels and regrets that all he has learned might perBulletin, has the following on text-books:

haps have been acquireil in four or five years, if be “If codification is really necessary as a relief from

only could have had the proper tools, and the advanan intolerable load of precedents, there must be, in

tage of working or being taught on some conceivably my opinion, years of preliminary work done before

better plan; and law students might be in two or any body of lawyers, however accomplished, or any

three years trained in the fundamental conceptions Legislature, however free from ignorance or indo

and theories of the entire substantive law, and not lence, can succeed in it or any part of it. To thresh only that, but more thoroughly and accurately than a field sown with different kinils of grain, by

now, producing il set of men better equipped than threshing one stalk of each at a time before separa we are to undertake codification. It would be mmtion and gathering into shocks, would be easier just to disparage too much present systems of inand more possible. The present generation of

struction; some, notably the Langvell system, and wordy and inexplicit text-books must first pass that of the Iowa school, have conspicuous merits, away, and with them disappear the present system but the results are entirely inadequate to the time of teaching law. It is not only necessary before

required." codification, but also highly desirable for other purposes, and far from impossible, that now, at the Governor Iloadley, of Ohio, who is an earnest and present time, treatises on the best known legal sub able advocate of codification, has the following on jects should be constructed by formulating settled the subject in his late message: “If the whole body and universal propositions into the shape of cate of the law of Ohio were recluced to writing and engorical rules, like the sections of a statute, and acted into statutes, great progress would be made printing them, perhaps, in large type. These then in giving to it accessibility and certainty, and in the stand as legal axioms of ultimate postulates. Then economy of its administration. This was done under each of these axioms, in smaller type, follow with the Roman law in the days of Justinian, and its sub-rules or inferential branches, as corollaries; the body of the civil law prepared under the auspiand finally, in still smaller type, under each of these ces of that emperor (revised in France in the Codes latter deductions, will naturally fall the anomalous of Napoleon), is to-lay the legal system of the and doubtful decisions, and extreme and inconsist whole civilized world, except the English speaking ent applications of the principles, all the primary nations, and largely afects even their jurisprudence. or secondary being accompaniel, of course, by their The practicability of such a work has therefore been illustrative and historical auihorities.

tested by the experience of ages. In California and 14 is leads to the only other alternative in the pre Dakota codification has been successfully accomparation of material for codification, and that is, forplisher, so that no unwritten law is administered, the men engaged in instructing in the elements of and the courts 110 longer indulge in guesses us to the law to formulate the law somewhat in the manner customs of England (18 the basis for judiciul acof the text-books above described, but on tion. In New York the complete code has twice resmaller scale, and thus furnish the profession and ceived legislative sanction, and but for vetoes by the world with the raw material of codification." | Governors Robinson and Cornell would bave been We do not assent to this. The best text-book writers in force. Livingstou's work, clone early in the cenwould prore poor codiliers. A writer on a special | tury, in the preparation of a ('ucle of Procedure and subject has a hobby which he must ride, and the Penal Code for Louisiana, still stunds, and twentyimportance of which he will exaggerate. IIe can four States have codified their (Civil and nineteen not take the broad view of the man trained to look their Criminal Procedure successfully since. The at principles as separated from cases, and to express work which has been so well done in Ohio in the them concisely. It is indeed disheartening if we (i les of Civil and Criminal Procedure, in the laws have to wait a generation for codification in order of testamentary succession, usury, guardianship and to have our text-book- improved.

many other topics, may be extended with profit to the whole body of the law. I recommend that it

be undertaken through the agency of a commission Nearly every one will agree with Mr. Bates how

to be created for that purpose.'

The italics are ever that our text-books might be improved. They ours, and those words express the state of the law should gradually be written after the method above as well as any we have ever seen. pointed out, which we believe was originater by Vice-Chancellor Wigram in his unrivaler treatise Judge Freedman has alijudged ex-Mayor Edson on Extrinsic Evidence as to Wills, and which has guilty of contempt in disobeying Judge Beach's in

Vol. 31 — No. 8.

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He says:

the seventeen aldermen to imprisonment for thirty IN

junction restraining him from filling certain mu profession and the public in this State. We call atnicipal offices in the city of New York.

tention to a communication on this subject in another “ The defendant, ils mayor, was the chief executive column, which suggests some novel expedients, officer of the corporation of New York.

He was

well worthy of serious consideration. In regard to elected to that high office by the votes of a majority two of them we can at once express our own opinof the electors of this great city. He, above all oth

ion. We have long believed that there are a good ers, should have set an example of devotion and

many appeals manifestly taken for delay in which the submission to the supremacy of the law as administered by the tribunals created by the sovereign

court ought to exercise its power to impose dampower of the State for that purpose. Occupying ages. As to increasing the costs of appeal genersuch a high position, his willful and public disobe ally, we are decidedly opposed to it. Litigation dience to the positive mandate of a court of general should be made cheaper rather than dearer, and jurisdiction, is an act of far-reaching consequences. many sound lawyers are even in favor of abolishing Under these circumstances, and inasmuch as neither costs except as a penalty. In regard the other the sentence by this court in the Compton case of and main expedient suggested, we must reflect with Alderman Sturtevant to imprisonment for fifteen our readers. days, and to payment of a fine of $250 into the city treasury, and of a further fine of $102.07 to the relators for their costs and expenses, nor the sentence

NOTES OF CASES. by the Supreme Court in the Dwyer case of cach of

N Geismer v. Lake Shore and Michigan Southern days and the payment of a fine of $250 deterred the Ry. Co., 34 Hun, 50, it was held that the dedefendant from defying the authority of this court;

fendant was liable in damages for delay in transthe case demands the infliction of the highest pun- portation of goods caused by a strike of its emishment anthorized by law, unless mitigating cir-ployees, although assisted by outside persons. The cumstances can be found that can properly be con

court said: “ This precise question does not appear sidered. Upon this point I have, after due deliber to have been passed upon in the courts of this State. ation, come to the conclusion that some of the mat In the case of Blackstock v. Nei York and Erie Railters urged as an excuse, but rejected as insuffi- roud Co., 20 N. Y. 48, the damages sustained were cient in law for that purpose, ought to be accepted for a delay in the carriage of a quantity of potain niitigation. The fact cannot be denied that the

toes. The delay was occasioned by reason of a order of injunction was granted under circumstances

strike of the engineers of the railroad company. which made it difficult to ascertain whether there In that case it was held that although the officers was or was not jurisdiction, and upon being advised of the company were without the slightest fault, by counsel that the order was void, the defendant the corporation was responsible for the damages may well have believed it. Moreover the practice caused by a delay in transporting the property, of the plaintiffs themselves in obtaining the injunc- which resulted from the strike. In that case there tion was so faulty and irregular as to lend color to does not appear to have been any violence used on the theory that the order is invalid. l'pon the the part of the striking engineers. It does not apwhole, I am charitable enough to think that the de pear however that the railroad company was unafendant actually believed that the order was void. ble to find other competent men with whom they But after giving to the defendant the fullest benefit could safely intrust the running of their engines. of every extenuating consideration that can be pre- The court laid down the rule that the railroad sented, the case still remains one which calls for sub company is liable for the misconduct of its serstantial punishment. I therefore direct that for the

vants, and that it makes no difference whether such willful disobedience and the contempt of which the misconduct was willful or from carelessness, if their defendant stands adjudged guilty, he be imprisoned action was within the scope of their employment. in the county jail for the period of fifteen days, and In the case of Werd v. Punama Railroad Co., 17 that in addition thereto, le pay a fine of $250.” N. Y. 362, the action was for damages sustained by This is as much as to say that although an injunc a passenger by reason of the willful act of the contion may be contemptible, it is still contempt to dis ductor in stopping the train and detaining it over obey it, when there was colorable jurisdiction to night. It was held that the company was under grant it.

And this is probably the law. We have contract to transport the passenger with reasonable great confidence in Judge Freedman's judgment, dispatch to his place of destination, and that by its impartiality and integrity. IIc is one of the city failure to do so it was guilty of a breach of conjudges who is above suspicion, and we do not be-tract, and that the plaintiff could recover, notwithlieve that any order of his will ever need to be made standing the act of the conductor in stopping the the subject of legislative inquiry.

train was willful; that he was acting within the scope of his employment. The rule, as laid down

in this case, is sufficiently broad to cover the case Next to codification the relief of our Court of Ap- under consideration. The employees of the depeals calendar is the most vital subject to our fendant were engaged in running the trains of the

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