« EelmineJätka »
and added interest to that amount, and found a defi it a “wholesome principle.” And in Baker v. City of nite sum. These findings seem conclusive; and Cincinnati, 11 Ohio St. 538, Gholsou, J., approves whether or not these particular findings be before this the same authority. In Maxwell v. Griswold, 10 How. court for review, the majority of the court think there 242, the court said: “Now it can hardly be meant in was no error in finding that such payments were for this class of cases that to make a payment involuncharges in excess of rates authorized by law. The de tarily it should be by actual violence or any physical fendant should have known what were legal rates and duress." should have charged no more.
In the case of Railroad Co. v. Lockwood, 17 Wall. The plaintiffs haro paid to defendant these illegal 379, Mr. Justice Bradley says: “The carrier and his charges-money unjustly obtained; and the remain customer do not stand on a footing of equality. The ing question is, can the plaintiffs recover back the latter is only one of a million. He cannot afford to same?
higgle or stand out and seek redress in courts. His The defendant denies the plaintiffs’ right to recover
business will not admit of such a course.
He prefers back, on the ground that these illegal charges were rather to accept any bill of lading, or sign any paper 80 paid voluntarily after the services for which the the carrier presents; often indeed without knowing same were demanded had been fully rendered and what the one or the other contains. In most cases he performed,” etc.
has no alternative but to do this or abandon his busiThe plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: did not stand on terms of equality, they so paid to se “To make the payment a voluntary one the parties cure transportation for the succeeding mouth. The should stand upon an equal footing.” defendant prescribed its own rates, and would carry This is not a case of individuals dealing with each the plaintiffs' freight only at the established rates, other on terms of equality; nor a case of payment of though these rates were illegal and unreasonable, and illegal charges to obtain possession of property; nor when as a common carrier it should have carried this payment of illegal taxes to prevent the sale of propfreight at legal rates. The special master found that erty. Here the defendant was a common carrier of “the sums exacted were illegal and unauthorized, and such freights as plaintiffs had for transportation; the plaintiffs were required to pay the same for the trans State had given the defendant, through its purchase portation of their property, without which the plaint of this part of the road, its right to use this road, and iffs in each of said cases, by reason of the character of had limited its rate of charges. The plaintiffs' busitheir manufacturing business, would have suffered ness was dependent on transportation by the defendgreat loss."
ant, and they were entitled to have their freight carThe defendant did not require the payments to be ried at legal and reasonable rates. The defendant made in advance of carrying each shipment of freight, prescribed rates illegal and unreasonable, and required but the charges of each month were required to be its agents to demand and receive such rates or not to paid at the end of the month or future freight would carry the freight. Plaintiffs, objecting and protesting not be carried.
against the basis and the amount of the charges, paid Plaintiffs could compel the defendant to carry their them at the end of each month, and they so paid the freight only by a resort to the courts and at the end of illegal charges to procure the future transportation of litigation. The history of these suits began in 1867, their freight. and just ending in 1884, shows that plaintiffs could not The case of Swift Co. v. United States, 111 U. S. 22, is obtain speedy and adequate redress-such as would very much like this. There the commissioner of insave their business and prevent loss-simply by a re ternal revenue had acted upon a wrong basis in chargsort to the courts to enforce legal rights. And as de- ing stamps for friction matches. The Swift ('o. garo fendant would not accept the payment of legal rates, orders for stamps, and paid for each purchase within and required the full payment of its illegal charges, the sixty days from the delivery of the stamps; and thus plaintiffs complaining and objecting to the increased dealt from 1870 to 1878. No protest had been made by and illegal charges, were forced to pay them. Their the company, though years before, in 1866, a member choice and volition were compelled. Such payments of the company “ made repeated protests to the officers are not voluntary.
of the Internal Revenue Bureau against the methods We will refer to some authorities and reasons of this of computing commissions” in similar cases. position. “The common principle is that if a man The court held: “A course of business and a periodchooses to give away his money, or to take the chance ical settlement between the commissioner of internal whether he is giving it away or not, he cannot after revenue and a regular periodical purchaser of revenue ward change his mind; but it is open to him to show stamps, entitled by statute to commission on his purthat he supposed tho facts to be otherwise, or that he chases, payablo in money, which shows that the conireally had no choice.” Pol. Prin. Cont. 523. These missioner asserted and the purchaser accepted that plaintiffs “really had no choice.” In 1760, in Moses the business should be conducted upon the basis of v. Macferlan, 2 Burr. 1005, Lord Mansfield said: “This payments of tho commissions in stamps at their par kind of equitable action to recover back money, which value instead of in money, does not preclude the purought not in justice to be kept, is very beneficial, and chaser from asserting his statutory right, if he had no therefore much encouraged. It lies only for money choice, and if the only alternative was to submit to an which, ex aequo et bono, the defendants ought to re illegal exaction or discontinue his business.” And the fund. But it lios for
* * *
money got court also held: “When the commissioner of internal through * an undue advantage taken of the revenue adopted a rule of dealing with purchasers plaintiff's situation, contrary to laws made for the pro of stamps which deprived them of a statutory right to tection of persons under thoso circumstances.” The be paid their commissions in money, and obliged them plaintiffs paid this money in liko situation.
to take them in stamps, and made kuown to those inIn Purkcr v. Great Western Ry. Co., 7 M. & Gr. 253, the terested that the rule was adopted and would not be court held that payments made to a common carrier changel, the rulo dispensed with the necessity of to induco it to do what by law, without them, it was proving in each instance or complying with it that the bound to do, were not voluntary, and might be recov. compliance was forced.” ered back. Add. Cont. *1043, approves this princi Mr. Justice Matthews said: “No formal protest ple. Mr. Justice Matthows, in Swift Co. v. United | made at the time is by statuto a condition to the presStates, 111 U. S. 29, approves the doctrino, and calls ont right of action, as in cases of action against the
collector to recover back taxes illegally exacted;" and vecessity of the appellee was so great and pressing as the court did not require any protest. The rule was to deprive him of the freedom of his will." adopted by the commissioner, and would not be The case of Chicago & Alton R. Co. v. C., V. & W. changed on further application; and business could be Coal Co., 79 Ill. 121, is as follows: “ Certain individtransacted only on that footing; and they paid within uals constructed a railroad twelve miles long, extendsixty days. Here the rates were fixed by the defend- ing from a coal niive, belonging to a coal company, to ant, and the shipper must pay or forego shipment, and a station on the Illinois Central Railroad, and on the plaintiffs paid within thirty days. In principle the 30th of April, 1869, they sold the same to a railroad cases are alike.
company, and turned it over to them, and on the same In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113, day the company purchasing it turned it over to anplaintiff recovered back from defendant certain mon other railroad company. The last-named company opeys unlawfully demanded and taken for transporta- erated the road in pursuance of the contract of sale betion of merchandise from Paterson to Jersey City. tween the first owners and the purchasers from them Bedle, J., said: “In these cases there was no express for three years, complying with the terms of said conrefusal, but I do not consider it necessary that the re tract as to the rates of freight to bo charged to the coal fusal should be express. It is sufficient if the person company for the transportation of its coal. The indihas just and reasonable ground to apprehend that un viduals building and selling the road and the coal comless the money is paid his goods will not be carried, or pany were the same. Field, that the railroad comwill be withheld. Where a corporation or person has pany last purchasing, by taking the road and recogthe power to refuse a right to which a party is entitled, nizing the rates of freight established by the contract of unless he complies with an unjust demand, they do not sale, adopted the contract, and were bound by its stand on an equal footing.” And the court held: terms, and that the coal company could maintain au "But when they are not on an equal footing, and action against them for a breach of it.” money is paid not by compulsion of law, but by com “In such a case, where the coal company had no palsion of circumstances--as when it is paid to release other outlet for its coal, and the railroad company exgoods fron illegal restraint, which cannot otherwise acted more freight than by the terms of the contract be reasonably effected, or to compel the performance | they were entitled to, the coal company should be of a duty by others in order to enjoy or obtain a right cousidered as under a kind of moral duress, and the -it may be recovered back. Under this head may be payment by them of the freight demanded under such classed moneys paid under color of title or charges on circumstances could not be considered voluntary, and turnpikes and railroads."
they would have the right to sue upon the contract, "Courts will not be illiberal in allowing a person to act and recover back the excess of freight paid over the upon his reasonable apprehension of such refusal, contract rate." where the circumstances fairly show that wless he Mr. Justice Breese said: “It can hardly be said these does so submit to the demand, his right will be with enhanced charges were voluntarily paid by appellees. held.”
It was a case of life or death' with them, as they had Iu Lafuyelte & Indianapoiis R. Co. v. Pattison, 41 no other means of conveying their coals to the marInd. 312, the excessive charges were recovered back. kets offered by the Illinois ('entral, and were bound to The syllabus contains the following: “During the re accede to any ternis appellants might impose. They bellion A. had a contract to furnish the government wero under a sort of moral duress by submitting to with a certain number of beef cattle during two which appellants have received money from them months, and for the purpose of filling such contract, which in equity and good conscience they ought not went to Chicago and made a contract with a railroad to retain." company to ship cattle for him to Indianapolis at $65 In Mobile & Montgomcry Ry. Co. v. Sleiner, 61 Ala. 559 per car; and leaving an agent to ship, he returned to illegal charges for transporting cotton were recovered Iudianapolis to receive the cattle. The cattle of the back. The court held: “The nature of the business first shipment of two car loads were sent to the cattle considered, the shipper does not stand on equal ternis Fard of A., and after a few days a bill for $201.02 was with the carrier, in contracting for charges for transsent to A., which he refused to pay, and informed the portation; and if the shipper pays the rates established agent of the railroad company that he had a contract | in violation of law by the carrier rather than forego for the shipment at $65 per car; the agent denied his services, such payment is noi voluntary in the leknowledge of any such contract, and insisted that the gal sense, and the shipper may maintain his action bills must be paid as presented, and that he would not for money had and received to recover back the illegal deliver any future car loads of cattle until the freight charge. was paid, as he made it up from the way bills, and To the objection that the payments were voluntarily that the bills included other things besides freight, made, and therefore could not be recovered back, which he could not itemize. It was agreed that A. Stoue, J., said: “Railroads hare so expedited and should pay under protest, and also future freight, and cheapened travel and transportation; have so driven the cattle should be delivered as they arrived, and . from their domain all competing modes of transportashould reserve the right to recover any sum so paid tion, that the public is left no discretion but to em. anjustly. In fursuance of this agreement the agent ploy them, or suffer irreparable injury in this age of delivered the cattle at the yard of A. as they arrived steam and electricity. They hare their established from time to time, and as soon as the bills were pre rates of charges, and these the shipper must pay or forepared they were paid by A.
go their facilities and benefits. To object or protest “Helil, that the payments were not voluntary, and would be an idle waste of words. The law looks to that A. could recorer all suins so paid in excess of his the substance of things, and does not require useless contract price.”
forms or ceremonies. The corporation and the shipper And Buskirk, J., says: “We are of opinion that the are in no sense on equal terms, and money thus paid money so paid could be recovered back if there had to obtain a necessary service is not voluntarily paid, been uo valid agreement that it migbt be. While the as the law interprets that phrase." appellants were not in the actual possession of the cat The above citations are sullicient. tle of the appellee, they possessed such power and con The foregoing principles and authorities show tbat trol orer the shipment and delivery thereof as gave the payments made in this case should not be regarded them an undue advantage over the appellee, and the as voluntary, and that no principle of equity shown by
defendant can aid the defendant in withholding from On the 26th of May, 1874, she was the owner of a cer. plaintiffs the money soi unjustly obtained by the de tain piece of land situated in Alameda county of this tendant.
State, which was her separate property, it having been There was error in the courts below, and this court given to her by her father on the occasion of her marenters judgment for the plaintiffs for the amount riage. On the day last named she signed a power of found by the court below, together with interest on attorney, very general in its terms, appointing her the same from the first day of that term of court, and father her attorney in fact to (among other things) costs of suit.
“lease, let, demise, bargain, sell, remise, release, conJobuson, C. J., concurs in holding that under the vey, mortgage and hypothecate” her said land upon facts disclosed the excessive charges may be recovered such terms and conditions, and under such covenants back, but he dissents from the construction placed on as to him should seem fit. The power as well as the section 12 of the act of 1848, wbich limits the rate of certificate of acknowledgment described the constitufreight to fivo cents per ton per mile for a distance of ent as “ Fannie P. Lawrence, formerly Fannie L. thirty miles or more, and reasonable rates for less dig- Hutchinson," and the power was so signed. The certances. He does not think that section applies to tificate bowever did not conform to the requirements packages and parcels weighing less than a ton, and of our statute prescribing the form for certificates of which by the usual custom are not shipped by weight. acknowledgment of married women.
McIlvaine, J., dissenting: I differ from my brethren When the power of attorney, so signed and acknowlon the weight of testimony in this case. I think the edged, was received by Edwin A. Lawrence, the latter payments of illegal rates were voluntary. The pay was tbe owner of various certificates of purcbase isments were not made at the time the goods were car
sued by the State of California for State lands, on riel, but at the end of the month for past freights, and which Gustave Reis held a mortgage executed to bim I have been unable to find any testimony satisfactorily by Lawrence. A part of the purchase-money of the showing that payments were exacted as a condition of lands had been paid, but a part of it remained unpaid. future freightage, or paid on any reasonable belief In due course of time an installment became due. that future freight would be refused unless payments Lawrence needed the money with which to make the were made.
payment. He negotiated with Mr. E. B. Mastick for Juriament reversed, and judgment for plaintiffs. the loan of the required amount on a mortgage he
proposed to give on his daughter's land under and by
virtue of the power of attorney. The power, the MARRIAGE - ACKNOWLEDGMENT – VOID DI- daughter testified on the trial of this case, she signed VORCE.
unwillingly and only after urgent solicitation on the
part of her father; aud in answer to the question SUPREME COURT OF CALIFORNIA.
why did your father urge you to execute the power
of attorney to which you have referred ?" she anREIS V. LAWRENCE.*
swered: “Because he said he had payments to make A woman living under her maiden name, apart from her on certain lands of bis, and that in case of necessity
husband, under a void decree of divorce, and acting and he wished to raise enough money on my property to representing herself as a single woman, binds herself by meet that demand; but that he hardly thought he her acknowledgment of a deed as a single woman.
would be obliged to do so; but he wished to have the A CTION on a note and to enforce a lien on land. paper on hand, so in case of weed he could make use
The opinion states the facts. The defendant had judgment below.
strength of his daughter's land, Edwin A. Lawrence
was therefore but carrying out the purpose bad in Edward J. Pringle, for appellant.
view by both when the daughter gave him the IVilliam Irvine, for respondent.
power. Ross, J. The defendant Edwiu A Lawrence is the
His negotiations with Mr. Mastick for a loan of the father of the defendant Fannie P. Lawrence. The required money failed of accomplishment on the last latter married one Hiram Ilutchinson, in the city of day allowed for the payment of the installment due San Francisco, on the 13th of April, 1871. In the year
upon the certificates of purchase. In this extremity of 1873 she went to the Territory of Utah for the pur
he applied to Gustave Reis for the loan of the amount pose of obtaining a divorce from her husband, and on
necessary to make the payment, viz., $4,550. Gustave the 6th of May of that year filed in the Probate Court
furuished a part of the money, but got the greater of Salt Lake county, Utah Territory, a petition in
part of it from Ferdinand Reis, who is the plaintiff in which she set forth that Hutchinson deserted and
this action. The loan was accordingly made, and as abandoned her on or about the first day of March, 1872,
security for its payment Edwin A. Lawrence executed and had erer since continued his desertion and aban
to the plaintiff, Reis, a deed for the Alameda land as doument of her, and praying for a decree of divorce
attorney in fact for Fannie P. Lawrence. At the dissolving tho bonds of matrimony existing between
time of this transaction, which took place on the 27th them. On the 15th of July, 1873, the court in which
of June, 1874, Edwin A. Lawrence repre-ented to Reis the proceeding was had entered a decree purporting to
that his daughter bad obtained a divorce from her dissolve the bonds of matrimony existing between Mr.
husband in Salt Lake, and had been restored to her and Mrs. Hutchinson, and restoring to the petitioner maiden name... Subsequently, to wit, on the 18th of her maiden name.
September, 1874, upon application made on behalf of From the view we take of the case before us it will
the plaintiff Fannie P. Lawrence executed to plaintnot be necessary to determine whether or not the de
iff a deed for the same land described in the deed cree of the Probate ('ourt of Utah was validated by
already executed to him by her father as her attorney subsequent congressional action. Upon the entry of
in fact, which deed expressed a consideration of the decree on tbe 15th of July, 1873, Mrs. Hutchinson
$4,500, and contained the clause: “This deed is given resumed her maiden name, and never afterward lived
in confirmation of the deed given by me to said Reis with Ilutchinson, but has ever since tbat date lived
on June 27, 1874, by my attorney in fact, hereby rati
The certificate of and acted as a single woman, and borne her maiden fying and confirming the same.”
acknowledgment to this confirmatory deed described
the grantor as “ Fannie P. Lawrence (femme sole)," * 63 Cal. 129; S. C., 36 Am. Rep. 762, 764.
and complied with the requirements of the statute pre
curred; McKee and Thornton, JJ., dissent. (See 36 Am. Rep. 762, 764.]
MASSACHUSETTS SUPREME JUDICIAL
scribing the form of such certificates for others than married women, butdid not conform to those in respect to the latter.
The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin county of this State against the defendant Faunie, for the purpose of obtaining a decree dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff iu that action, and from that time forth lived apart from him, and denied him all marital rights. After trial the court in which the action was brought decreed the plaintiff a divorce on the ground stated in his complaint.
We assume that the Utah decree was invalid. Nevertheless the fact remains that upon the rendition of that decree the defendant Fannie P. Lawrence resumed her maiden name, and thence hitherto continued to act and represent herself as a femme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land, and on those representations, the father did borrow money, and to secure its reparment executed to tho lender, pursuant to the power, a deed for the premises. Subsequently and in consideration of that loan, the daughter still acting and representing herself as a femme sole, executed as such to the lender another deed for the premises, in which she recited that it was given in confirmation of the deed previously executed by her attorney in fact. At this day she seeks to avoid the effect of these conveyances to the injury of the party who parted with his money on the strength of her actions and representations by saying that she was all along a married women, and that the certificate of ackuowledgment to the instruments executed by her were not in accordance wth the form prescribed by statute for married women in that they did not recite that she, was examined “without the hearing of her husband,”a husband who, according to her petition for divorce filed in Utah, had deserted and abandoned her on the 1st day of March, 1872, and whom, according to the record put in evidence from the District Court of Marin county, she had deserted and abandoned in July of the same year, and between whom no marital relations other than the dry, legal relation in fact existed. Of course, under such circumstances the reason for the rule that requires, in cases of married women, the certificate of acknowledgment to recite an examination without the hearing of tbe busband, dues not exist. At least as early as July, 1872, the defendant, Annie, lived apart from, and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and represented herself as a single woman. In that character she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. As giving support to these views,see Richeson v. Simmons, 47 M0.20; Rosenthal v Mayhugh, 33 Ohio St. 155; Patterson v. Lawrence, 90 III. 174.
We find it unnecessary to determine whether the rules based on the common law relation of husband and wife are to be applied to their full extent in this State where the wife is now by statute empowered to dispose of her separate estate without the consent or concurrence of her husband.
It follows that the plaintiff is entitled to the lien prayed for.
Judgment and order reversed, and cause remanded for a new trial. Morrison, C. J., Sharpstein and Myrick. JJ.,
HIGHWAY-DEFECT-PROXIMITY TO NIGHWAY.-In order that the plaintiff should recover it was necessary that he sbould show that the defect in the highway
' which caused the injury existed either in the highway or so immediately contiguons to it as to make it dangerous to travel on the highway itself.” Sparhawk v. Salem, 1 Allen, 30. Alger v. Lowell, 3 Allen, 402; Adams v. Natick, 13 id. 429; Puffer v. Orange, 122 Mass. 389, cited and quoted from. In determining whether a defect is in such close proximity as to render travelling upon it usare, that proximity must be considered with reference to the highway “as travelled and used for the public travel,'' rather than as located. Warner v. IIolyoke, 112 Mass. 362. While it may be impossible to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it, and whilo it must often be a practical question, having regard to many circumstances, to be decided by a jury, yet it has been held in certain cases as matter of law that a jury was not authorized in finding that the dangerous place was in such proximity to the highway as to render travelling thereon unsafe. Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, ubi supra; Daily V. Worcester, 131 Masz. 452, cited. In all these cases the place wbere the accident happened was reached by passing over a level space which intervened between it and the highway, yet these defective places were held mot dangerously contiguous. The case at bar is within the rule thus adopted. The causes of the injury to plaintiff were the darkness, his failure to keep the carriage path, his travelling on that made by foot passengers at the extreme edge of the higliway as located, and the subsequent misconduct of the horse. It cannot be said that a bank thirty-four feet from the trarelled way as used rendered it unsafe to travel thereon. This distance was sufficient to provide for those contingencies which from time to time might reader necessary a road somewhat wider than that actually travelled. Barnes v. Inhabitunts of Chicopee. Opinion by Dev.
NEGOTIABLE INSTRUMENT · ILLEGAL CONSIDERATION-SUPPRESSING CRIMINAL PROSECUTION.- When a person is under arrest on a criminal charge, to obtain from him aud his friends a promissory note in payment of an alleged claim under a threat of prosecuting the complaint if the note is not given, and under an agreement not to prosecute it is the note is given, is in violation of law equally whether the accused is guilty or not guilty; and the guilt or innocence of the accused cannot be tried in this action. Such a proceeding is an abuse of criminal process, and such an agreement tends to the suppression of evidence, and impedes the due course of public justice. Partridge v. Hood, 120 Mass. 403; Clark v. Pomeroy, 12 Allen, 557; Bigelow v. Woodward, 15 Gray, 560. Gorham v. Keyes. Opinion by Field, J. [Decided Oct., 1884.]
NEBRASKA SUPREME COURT ABSTRACT.
SPECIFIC PERFORMANCE-RESCISSION.-A. purchased of B. a certain lot, paying thereon $50 in cash, and agreeing in the deed as part of tbe consideration to erect a building of a certain description thereon. Held, that B. was entitled to the performance of the
contract, and in case of the failure of A. after a reasonable time, upon tendering back the money received, to a rescission. The right to relief originated in the fraud, which but for the interposition of the court, would be perpetrated upon the complaining party. Will. Eq. Jur. 302; Story Eq. Jur., $ 692 et seq. Thus in Reid v. Burns, 13 Ohio St. 49, where the plaintiff had caused the title to his homestead to be conveyed to his son in consideration that he would support him during life, which the son afterward refused to do, it was held that the father was entitled to a rescission of the contract and a reconveyance of the premises. And in Stines v. Dorman, 25 Ohio St. 580, it was held that a stipulation in a deed of conveyance whereby the grantee, in part consideration for the conveyance, agreed that the premises sbould not be used or occupied as a hotel, bound both the grantee and all claiming under him. It would be a reproach upon the law could a party secure the title to real estate in consideration, in whole or in part, that he would erect certain buildings thereon, and upon receiving a conveyance refuse to perform his agreemene. The law favors good faith and sair dealing. These require the defendant to erect the building in question according to his agreement, or in case of his failure to do so within a reasonable time, submit to a cancellation of his deed. In a contract of this kind a court will look at the entire transaction, and grant or withhold relief as the circumstances of the case may seem to require; but it will uphold fair dealing wherever it is possible to do so, and to that end will enforce specific performance of an agreement clearly proved, whenever an action for damages will not afford adequate rewedy. Willard v. Ford. Opinion by Maxwell, J. [Decided Oct. 8, 1884.]
PARTIES–PARTNERS-ACTION MUST BE AGAINST ALL. -The obligation of a partnership to pay a sum of money is the joint obligation of all the members of a firm, and an action against the members of such firm to recover a debt or obligation owing by it must be brought against all the members of the partnership In Bliss ('ode Pl., § 91, n., it is said: “At common law, where there is a joint obligation or undertakmg, in an action upon it all who thus join must be made defendants; and in determining whether it is joint the rule is that several persons contracting together with the same party for one and the samo act shall be regarded as jointly, and not individually or separately liable, in the absence of any express words to show that a distinct as well as an entire liability was intended to fasten on the promisors.” Thus contracts made by partners with third persons are joint, and all must be joined in an action; and so with promissory notes and other instruments or agreements, made by more than one, when the agreement is general; as we hereby agree or hereby promise or bind and obligato ourselves, etc. Implied obligations are joint when the facts from which the promise is implied apply equally to more than one. Partnership debts and debts of joint-stock companies are always joint; and inasmuch as express words are necessary to make a several agreement, and especially one that is joint and several, the absence of such words makes it on the face of it joint. “This being the rule of the common law, it is evident that the rule remains in this Stato unless changed by statuto, for tho reason of the rule exists the same as heretofore. The obligation being joint it denotes but a single indivisible claim; and so all the obligors constitute, as it were, one person owing a single debt, and no one owes any part of it. llence tbe necessity of bringing all before the court, and no others. Id., $ 92. Our statute has not changed tho rule. The law of this State upon this question is a lit
eral copy of the law of New York, which has also been adopted by the States of Ohio, Wisconsin, Minnesota, North Carolina, South ('arolina, Florida, Oregou and perhaps others. This question has been passed upon by the Supreme Court of Ohio, and the rule is settled in that State that the Code, as well as the commou law, requires all jointly liable to be made defendants. Bates ('ode Pl., § 1, p. 47; Hempy v. Ransom, 33 Ohio St. 315; Bazell v. Belcher, 31 id. 572. The same rule seems to be recognized in this State. See Leech v. Milburn Wagon ('o., 14 Neb. 109; Fox v. Abbott, 12 id. 328, Maxw. Just. Pr. 28. Bowen v. Crow. Opin. ion by Reese, J. [Decided Oct.
1884.] EMINENT DOMAIN-DAMAGES APPEAL-INJUNCTION.—Where a public road has been duly laid out, a claim for damages made by a land-owner and allowed, and no appeal taken, a court of equity will not enjoin the opening of the road upon the ground that the damages allowed such land-owners were inadequate. Upon a petition duly signed as required by law for the location or vacation of a public road, the county commissioners are duly invested by the statute with authority in the premises. The extent to which error will lie to the District Court to correct their proceedings is not now before the court, and need not be considered; but in the absence of some equitable grounds for reJief, such as fraud, corruption or undue means, error cannot be corrected by injunction. McClelland v. Miller, 28 Ohio St. 488; Frerert v. Finfrock, 31 id. 627. In the case last cited it is said: “For a stronger reason where the regularity of the proceedings is the ground of objection, the claimant will not be permitted to resort to the remedy of injunction, but will be confined to his appeal, or if the proceedings are so erroneous as to be reversible, to his petition in error." Iligh Inj., $3:30, 129, 131. The reason is the aggrieved party has a full and adequate remedy at law, and has no occasion to resort to a court of equity for redress. ('oe v.('olumbus, etc.,R.('0.,10 Ohio St. 372; Coughron v. Swift, 18 Ill. 41.1; Winkler v. Winkler, 40 id. 179; Poage r. Bell, Rand. 586; Webster v. (ouch, 6 id. 519; Akrill v. Selden, 1 Barb. 316; Wooden v. Wooden, 2 Green ('h. 429. Where a full and adequate remedy is provided by statute a court of equity will not assumo jurisdiction and enjoin proceedings under such remedy. Brown's Appeal, 66 Pem. St. 155; Wooden r. Wooden, 2 Green (h. 129. The principal ground of complaint in the petition is that the damages awarded for the location of the road were inadequate. But the statute garo the plaintiff the right to appeal to the District ('ourt. This, so far as appears, he failed to do. It would seem therefore that he was satisfied with the amount of the award. In any event the statute gave him a plain, adequate remedy, which if he neglected, he cannot now invoke the aid of a court of equity to cure his own laches. Neither the pleading nor proof justities the interposition of a court of equity. Hophins v. Keller. Opinion by Maxwell, J. [Decided (ct. 1:1, 1881.]
NEI JERSEISUPREME COURT ABSTRACT.*
('ORPORATION-PRESIDENT-XO POWER TO EXECUTE BOND)—JUDGMENT — RECEIVER.— The president of a corporation has no power, in virtue of his office as president, to execute a bond and warrant of attorney for the entry of a judgment by confession against the corporation. The powers of the president of a corporation over its business and property are strictly the powers of an agent-powers delegated to him by the
*Tv appear in 46 N. J. L. Reports.