« EelmineJätka »
company, even if it had acquired title to the premises that the rule of damages in an action by a principal in question by voluntary conveyance, to use the slip in against an agent, who had defrauded him in purchasquestion for ferry purposes, or 10 exclude canal boats ing property, by representing that be paid a larger and barges, nor could it, without express authority of price than it was actually obtained for, upon an the Legislature, have excluded the general public from offer to surrender the property to the agent and rethe use of the slip, even after the privileges of the cover of him,is its whole purchase-price. We think this canal boats and barges had been taken away. Hence theory is erroneous. The contract of purchase made the necessity of providing that the slip might be de with the vendor was precisely the contract which the voted to ferry purposes, so that as soon as the ferry plaintiff authorized his agent to make, and the princicompany acquired the title it might use the property. pal could not therefore rescind that contract by reaBut as has before been shown, the slip was devoted to son of any fraud perpetrated upon him by his own no exclusive use, and the owuers were not deprived of agent, to which the vendor was not a party. Upon any of their rigbts until after the acquisition of the the execution of that contract the title vested in the title. Nothing was intended to be taken from the plaintiff, and there is no principle of law upon which owner's, nor were they restricted in the use of their he could compel the agent to assume the ownership property until they received their just compensation, and stand the hazard of the speculation. In an action and if before the institution of the proceedings, they by the purchaser against the agent for such fraud the made any use of the property by which third parties rules of damages would be those only which he actuacquired any interest therein, that interest would also ally suffered from the fraud. This would not neceshave to be extinguished on making compensation. sarily or probably be the price paid. Not only there
Criticisms are made upon the form in which the fore was the theory of the complaint erroneous, but authority to exercise the power of eminent domain is the evidence and the findings of the court below show conferred. The language of the act of 1882 is that the that the defendant was not the agent of the plaintiff, lessees shall acquire title to the property “in the man but even if he should be so considered, that no fraud ner and by the proceedings provided by law for ac was committed by him, except in abusing the confiquiring title to lands for railroad use by railroad cor. dence of his employer by paying a larger price for the porations, so far as the same are applicable thereto," stock bought than it apparently could have been purexcepting that certain allegations which the general chased for. If upon the facts found by the referee railroad law requires to be contained in the petition such a construction could be put upon them as would respecting stock subscriptions, surveys, maps, etc., make the defendant the agent of the plaintiff, a remay be omitted.
covery could have been sustained only for the enThe objection that this reference is indefinite does hanced price paid by the agent over what the stock not striko us with any force. The act is in a stereo could have been purchased for by him, or at least for typed forin adopted in almost immumerable statutes, the amount allowed by the vendor to the agent for his where the power of eminent domain is intended to be services in effecting the sale; but this ground of redelegated to a corporation, and by long use it must covery was not only contrary to the theory of the achave acquired a definite meaning. It can refer to tion stated in the complaint, but was expressly disnothing else than the general railroad law. The criti claimed by the appellant on the trial of the case as cism is that it might hare been intended to refer to well as on the argument before us. The only possible tho law of 1875 for the construction and operation of theory in the case upon which the plaintiff could resteam railways in the counties of this state. This con cover having been disclaimed Wy him, no alternatire is struction is quite inadmissible. The reference to the left us but to affirin the judgment. McMillan v. drthur. law for acquiring title to lands for railroad uso must Opinion by Ruger, ('. J. be deemed to have in view the general law, and not a (Decided Jan. 27, 1885.] law applicable only to a specific class of railroads. If any special indication of intention were required it
PARTITIOX-LITIGATING VALIDITY OF MORTGAGE
ESTOPPEL MORTGAGE FORECLOSURE - MERGER would be found in the fact that the allegations which,
HEBT-LIMITATION-PRESUMPTION OF PAYMENT.-In by the act of 1882, the applicants are authorized to omit from their petition, are required by the general | defendant; the lien of his mortgage being questioned,
an action for partition, ()., a mortgagee, was made a railroad law and are not required by the act of 1875. The objection that this reference to the general rail
he answered alleging it to be a valid and subsequent road law to regulate the mody of procedure for ac
lien, and asked that the premises be declared subject quiring title contravenes section 17 of article 3 of the
thereto, or that it be paid out of the proceeds of sale Constitution is met by the decision of this court in the
if a sale is decreed. (). appeared and took part in the case of People v. Banks, 67 N. 4. 575.
trial. An interlocutory judgment was rendered, adThe orders of the General and Special Terms judging that the mortgage was not a valid lien. Ileld, should be reversed, and the proceedings remitted to
that ay (). had, without objection, then submitted his the Special Term to appoint commissioners.
rights to the court, and sought to have them re-enAll concur.
forced, conceding he could not have been compelled Ordered accordingly.
thus to litigate them, he could not raise the objection
on appeal, and this, although he asked the trial court [A Legislature may empower a city to grant an ex to find as a conclusion of law that no affirmative relief clusive licenso to ferry across a navigable river, and could be given against him in that form of action. the conferring of the power to grant or refuse such li- Jordan v. Van Epps, 85 N. Y. 4:27. Until the bond or cense authorizes the granting of an exclusive privilege. debt, to secure which a mortgage is given, is fully paid Burlington, etc., Ferry Co. v. Duris, 30 Am. Rep. 390. | by the execution of the decree, or otherwise, the mortSee also J[ontgomery v. D[ultnomah, 29 Alb. L. J. 333.
gagor cannot require the bond and mortgage to be re-Ed.]
turned to him, or cauceled. In re (ostar, 2 Johns. Ch. 503. The debt upon the bond is then secured by
the mortgage and also by the decree. Yet by this NEW YORK COURT OF APPEALS ABSTRACT. double security it is not placed on any different foot
ing from a debt due upou bond and mortgage. The DAMAGES-FRAUD BY AGENT-PURCHASE PRICE - entering of a decree of foreclosure is not necessary to FALSE REPRESENTATIONS AS TO. - The complaint in | give security to the debt, for the lien subsists. Lansivg this action seems to have been framed upon the theory v. Capron, 1 Johng. (h. 617. The decree is a means
only of enforcing the lien of the mortgage and so ren Y. 203; Whitney Arms Co. v. Same, 63 id. 62; 68 id. 34, dering it available. Bucklin v. Bucklin, 1 Abb. Ct. of It is therefore as affecting both appeals, material to App. Dec. 242. That lien remains until the debt is ascertain the true construction of the terms of the paid or discharged. Neither the foreclosure suit nor covenant. So far as it requires the company (the lesthe decree affects that, nor does either impair the see) to pay and discharge water-rates and taxes, it is mortgagor's right to redeem. That right remains the precisely like the covenant which lay at the foundasame after decree and until an actual sale of the mort tion of the case of Rector, etc., v. Higgins, 48 N. Y. gaged premises under it. Brown v. Frost, 10 Paige, 532, and if it went no further, the decision then made 21:3. So notwithstanding the decreo, the lien is liable would require us to hold, that a right of action against to be defeated by the same presumption founded upon the company accrued on its failure to pay the rates lapse of time. If the mortgage stands alone, without and taxes when imposed, that is, in May and Septempayment or proceedings to enforce it for twenty years, ber of each year. That action however was for damthe presumption of payment accrues. If by virtue of ages, and when presented to the Appellate Court, the foreclosure a new security” has been taken, the same right of the plaintiffs to maintain it at some time was policy will, under the same circumstances, raise the not disputed, and the only question raised related to same presumption. Upon this principle it has been their doing so before actual paymeut of the assessheld that where there had been a foreclosure sale, not ments then in question. But in the case before us, followed by a conveyance to the purchaser, or auy the covenant goes further, and provides that if not so recognition of the mortgage by the mortgage debtor, paid before the first of day of February next after they it will be presumed after the lapse of twenty years are so imposed, the company on that day will pay the that the land had been redeemed from such sale. amount of them as additional rent to the lessor. Here Reynolds v. Dishon, 3 Bradw. (I11.) 1793. The mort are two things to be done, and the obligation to pergage here, of which (.was the assignee,matured so as to form ono depends upon the non-performance of the be the cause of action in foreclosure, and judgment other as a condition precedent, and as that depends was obtained on the 29th of April, 1818. Conceding upon the will of the promisor, it is in substance an althat by stipulations in the mortgage of 1850, enforce ternative contract, and in such a case the party ment by sale was stayed for ten years, he was at lib charged may elect which of the two alternatives he erty to proceed upon the decree and also on that mort will perform. In effect tho company said, we will gage in 1860. This action was commenced in July, either pay the taxes when they become due to the city 1881, and thereafter, and not before, set up his judg- authorities, and so relieve the demised premises, or as ment and mortgage. This was more than twenty in case we do not, you will be required to do so to proyears after the cause of action under any construc tect your property, we will on the first of February pay tion accrued, and a recovery upon either is barred to you the sum of them, with interest and such peualwhether the question is considered under the limita ties as are incurred. The cause of action did not action prescribed by the Revised Statutes (title :2, part crue against the company until its failure to comply Ill, ch. 3, 2 R. S. 29.3, ; 90), or the Code of Procedure with the second alternative. That occurred on the (Laws of 1818, ch. 438, $ 90), or the Code of Civil Pro first day of February, 1874, and as the plaintiffs could cedure, $ 381. No proof was given to tako either claim then have sued the company, so also they could have out of the operation of the statute. The policy of the sued the defendant. At that moment therefore the law and substantial justice required that judgment short statute of limitations prescribed to this class of should be given against them. Burnard. v. Ondega actions commenced running in his favor, Shaler, etc., donk. Opinion by Danforth, J. [As to Merger see:38 (o. v. Bliss, supru; Merchants’ Bank v. Bliss, 35 N. Am. Rep. 129.-E1).] ,
Y 11:2; Miller v. White, 50 id. 137; Jones v. Barlow, [Decided Feb. 10, 1885.]
supa; Losce v. Bullard, 79 N. Y. 404, and before the LIMITATION--STATUTE TRUSTEE OF MANUFACTURING
commencement of this action the bar fell. The statCOMPANY-COVENANT TO PAY TAXES.-. A company,
ute operates upon the remedy, and the omission of the of which defendant was trustee, hired of the plaintiff
creditor to pursue it cannot stop its running. The certain premises for the term of six years and six
liability of the trustee was imposed by statute aud the months from Nov., 1872, and agreed to pay all
benefit and suit therefor are limited to the creditor as such taxes and water-rates as might be imposed
the one aggrieved. In such a case when the statute of upon the demised premises during each year, and if
limitations begins to run nothing subsequent will stop they “should not be so paid before the first day of
it. But the question now before us is directly within February next after the same should have been im
the principle of the decision of this court in Losee v. posed, then to pay to the plaintiff's on that day, as ad
Bulları), supra, and permits no further discussion. It ditional rent, whatever sun might be necessary to pay
can make no difference that the company in this case said taxes and Croton water-rates for such year, or
continued to transact business. The plaintiffs were either of the same remaining unpaid, with all the pen
not required to sue the trustee, but could not, by alties and interest accrued thereon. The corporation
omitting to do so, prevent the application of the statfailed to make its annual reports in 1873, 1871 and 1875,
ute. Rector, etc., v. l'anderbilt. Opinion by Dan
forth, J. as required by the twelfth section of the act of 1813, and this act was brought on Jan. 11, 1878, to charge
[Decided Feb. 10, 1885.] him with certain debts of the company existing, as is (CONTRACT–PUBLIC OFFICER-PERSONAL LIABILITY alleged, at the time of such defaults. Nelil, that the --PUBLISHING NOTICES —TAX SALE-ACT 1878, CH. 65. liability of the company was upon the covenant to pay - This action was brought against defendant as treas. the water-rates and taxes. The liability of the do uror of the county of Ulster, to recover the alleged fendant depended upon tho combination of three cir contract-price agreed to be paid by him, as such officumstances, viz., the existence of the debt, the cer, for publishing notices of tax sales in a newspaper existenco of the default in making the report, of which plaintiff was the proprietor. The compensaand the trusteeship. Shaler, etc., Quarry ('om tion to which the plaintiff is entitled for publishing the pany v. Bliss, 27 N. Y. 297; Duckworth v. Roach, advertisement of the tax sale in Ulster county is gor81 id. 49. It is well settled that if there be no erned by chapter 831 of the Laws of 1869. The provisobligation giving a present right of action against the ion in the sixth section of chapter 65 of the Laws of company, there is no debt which can be demanded as 1878, that “tho publishing of the said notice is not to a penalty against the trustee. Jones v. Barlow, 62 N. exceed the sum of $2 for each newspaper so publishing
each of the several notices," is a limitation for the protection of the owuers of property advertised for taxes and not an authority to the treasurer to subject the property advertised to expenses for adrertising beyond the sum fixed by the act of 1869. The two acts are not inconsistent and are to be construed together. The action is brought against the defendant in his official character, and the plaintiff disclaimed on the trial any right to charge him personally on the contract alleged. The contract was beyond the scope of his authority as treasurer and was not binding upon him in his official character or upon the county of Ulster. Boots v. Washburn, 79 N. Y. 207. Crouch v. Hayes. Opinion per (uriam. [Decided Feb. 10, 1885.]
two years before his application for a patent, will not render the patent void, where such sale is made for less than the value of the machine, without profit to the inventor, for the sole purpose of testing it, and with the understanding that it will be taken back if it does not work satisfactorily. Upon the whole evidence. it is plain that the transaction was altogether experimental; therefore the invention was not “in public use or on sale” within the meaning of the statute. Birdsall v. McDonald, 1 Ban. & A. 165; Elizabeth v. Pavement Co., 97 C. S. 126; Campbell v. Mayor, etc., 9 Fed. Rep. 503; Graham v. Geneva Lake Manufacturing Co., 11 id. 138; Graham v. McCormick, id. 859. (2) It being once shown that the use is experimental, then upon the question of its reasonableness in point of duration, every presumption should be made in favor of the in
Innis v. Oil City Boiler Works. Opinion by Acheson, J. Cir. Ct., W. D. Penn., Jan. 1885. [See 1 Fish. Pat. (as. 1.-E1).]
UNITED STATES CIRCUIT AND DISTRICT
CARRIER-SEPARATION OF(PASSENGERS ON ACCOUNT OF RACE OR COLOR-ACCOMMODATIONS MUST BE EQUAL. -On a night steamboat plying on the Chesapeake bay colored femalo passengers may be assigned a different sleeping cabin from white female passengers. The right to make such separation can only be upheld when the carrier in good faith furnishes accommodations equal in quality and convenience to both alike. Citing U. S. v. Runtin, 10 Fed. Rep. 739; Gray v. ('incinnati S. R. Co., 11 id. 683. The Sue. Opinion by Morris, ('. J. Dist. Ct., Dist. Mrl., Feb, 1885. [See 8 Am. Rep. 611; 41 Am. Dec. 482.]
VENDOR ANI) VENDEE-RECORD OF AGREEMENT-ESTRIES IN INI)EX-XOTICE.-C. and the American Emigrant Company owned certain interests in swamp lands, under the Iowa Swamp Land Act, and C. entered into a written agreement with the company, which was in effect a conveyance of his interest. The agreement was duly recorded, and in the index ('s name was written in the grantor columu, the company's name in the grantee colum, in the column headed “character of instrument” was written
agreement, and in the description column was the entry,“ with regard to swamp and orerflowed lands." Subsequently S. purchased a portion of the lands. Held, that the entries upon the index were sufficient to put him on inquiry, and that he was bound thereby. The decisions of the Supremo ('ont of Iowa on this question aro clear and decisive. In ('alvin . Bowman, 10 Iowa, 529, and White v. IIampton, 13 id. 260, it was held that the index was sufficient to charge notice, although no description of the property was entered on the index, but simply the words, “See record.” In Bostwick v. Powers, 1:2 Iowa, 156, the entry upon the index was “C'ertain lots of land,” and it was held that this was sufficient. In Barney V. Little, 15 Iowa, 535, it is said to be the settled law of the State that “it is not necessarily and essentially a prerequisite to a valid registration that the index should contain a description of the lands conveyed; it is sufficient if it points to the record with reasonable certainty.” In Jones v. Berkshire, 15 Towa, 248, the rulo is stated to be that “if the index discloses enough to put a careful and prudent examiner on inquiry, and if on such inquiry the adverse titlo would have been ascertained, the party will be held to notice." American Emigrant Co. v. Call. Opinion by Shiras, J. Cir. ('t. S. D. Iowa, Jan. 1885. [See 15 Am. Rep. 189; 29 Alb. L. J. 65.-Ed.]
PATENTS-PUBLIC USE--SALE TO TEST MACHINEPRESUMPTIOX.- A single sale by an inventor of a machine embodying his completed invention more than
*Appearing in ? Federal Reporter.
PROCESS-SERVICE ON COMPLAINANT OR NON-RESIDENT DEFENDANT ATTENDING ON TRIAL.-A non-resident defendant in attendance upon the trial of his case, at which his presence is necessary both as a witness and for the purpose of instructing his counsel, is protected while in such attendance from service by summons of a new writ or complaint against him. The authorities upon the general question of the protection of nonresident parties and witnesses from the service of process, while they are in attendance upon the trial of cases in which they are coucerned, are very numerous. It is suflicient to cite only those which bear upon the precise point in this case, and which are: Matthews v. Tufts, 87 N. Y. 568; Parker r. Hlotchkiss, 1 Wall. Jr. 269; Lyell v. Gooilwin, 4 McL. 29; Ilalsey v. Stewart, 4 N. J. L. 360; Miles v. McCullough, 1 Binn. mnThe decision is contined to the case of a non-resident defendant; because the Supreme ('ourt of Connecticut held, m Bishop v. Vose, 27 ('omn. 1, that a non-resident plaintiff was not protected, while in attendance upon the trial of his case m this State, from the serrice of a new writ by summons. There is perhaps a reason why a plaintiff who has voluntarily sought the aid and the protection of our courts, should not shrink from being subjected to their control, which does not apply to the condition of a defendant whose attendance is compulsory; and therefore I do not intend to express dissent from the doctrine of the ('onnecticut case, but to limit this decision to the facts which are before me. Wilson Serring Juchine Co. v. Wilson. Opinion by Shipman, J. ('ir. ('t., Dist. ('omn., Jan. 1885. [See 30 Alb. L. J. 117; 38 Am. Rep. 717.- En.]
CONSTITUTIONAL LAW-POWER TO LICENSE-TAXREGULATING WASII HOUSES. –The council of Portland was authorized “to regulate” wash houses, and thereupon ordained that the proprietor of such a house should take out a license quarterly and pay therefor the sum of $5, or $20 a year, and in default thereof should be liable to fine and imprisonment. Held, that while the council had power to require the license as a means of regulating the business, the sum charged therefor was manifestly so far in excess of what was necessary or proper for that purpose that it must bo considered a tax, and the ordinance imposing it is therefore so far void. In support of the proposition that the power to regulate a wash house does not include the power “to license,” counsel for the petitioner cites Burlington v. Bumgardner, 42 Iowa, 673; Com. v. Stodder, 2 Cush. 56:2; St. Paul v. Traeger, 25 Mim. 218; Corrallis v. Carlile, 10 Oreg. 139; Dunham v. Rochester, 5 Cow. 464; Barling v. West, 29 Wis. 314; Dill. Mun. (Corp., $ 361. While counsel for the respondent cites to the contrary Burlington v. Lawrence, 42 Iowa, 681; Chicago P. & P. ('0. v. (hicago), 88 Ill. 221;
State v. Clarke, 54 Mo. 17; Welch y. Hotchkiss, 39 the fees charged by her counsel for prosecuting a suit Conn. 140; Cincinnati v. Buckingham, 10 Ohio, 257 ; | against him for a divorce a mensa et thoro, pending Dill. Muu. Corp., S 91. Some of these authorities are which suit he died. But if it be made to appear affirmflatly contradictory of others on this poins, but the atively that the suit was reasonably and justifiably indifference in the conclusion reached in most of the
stituted, counsel are entitled to recover from the huscases is largely attributable to a difference in the cir
band's administrator reasonable fees for services rencumstances. The words “to control” and “to regu dered therein. It has long ago been held that where a late,” ex vi termini, imply to restrain, to check, to rule wife bas been turned out of doors and threatened by and direct. And in my judgment the power to do her husband, and she employed an attorney to either of these implies the right to license, as a conven exhibit articles of the peace against him, the ient and proper means to that end. A license is
husband was liable to the attorney for the paymeut of merely a permission to do what is unlawful at common his charges; for, as was said by the court, whenever law,or is made so by some statute or ordinance, includ- the husband by his conduct compels the wife to appeal ing the one authorizing or requiring the license. By to the law for protection, she may charge him for the this means the persons or occupations to be regulated necessary expenses of the proceeding as much as for are located and identified, and brought within the ob necessary food or raiment; and her solicitor may sue Bervation of the municipal authorities, so that what for his propes charges. Shepherd v. Mackoul, 3 erer regulations are made concerning them may be the Camp. 326; Turner v. Rookes, 10 Ad. & Ell. 47. And more easily and certainly enforced, including the giv so it has been held that the husband's estate was liable ing of security for their observance even before the for preliminary expenses incidental to a suit for the license is issued. The authority of the National gor restitution of conjugal rights, instituted by the wife, ernment, like that of a municipal corporation, is lim but before the suit came to a hearing the husband ited to the powers expressly granted in the Constitu- died, and no decree therefore was ever pronounced. tion, and such implied powers as may be necessary Wilson F. Ford, L. R., 3 Exch. 63. In this last case and convenient to the due execution of the former. last cited, Channell, B., said: “I think that where a And yet under the power “to regulate” commerce suit was instituted, as it was here, for restitution of Congress may and does provide for licensing the in-conjugal rights, and for alimony pendente lite, the exstrumentalities thereof, as vessels, pilots, engineers, penses in relation to it were necessary to her as wife, Indian traders and the like. License Tax cases, 5 and such as she was justified in incurring.” And for Wall. 470. In Ash v. People, 7 Cooley, 347,
costs and expenses necessarily incurred by the wife in that the council of Detroit, under the power to license filing a petition for judicial separation, although the and regulate the sale of meats, might charge a fee of $5 petition was not proceeded with, it was held the husfor such license for, as I infer, the period of one year. band was liable. ,Rice v. Shepherd, 12 C. B. (N. S.) And the fee in this case should certainly be no more 332. In the caso of Brown v. Ackroyd, 5 El. & B. 819, than in that. In Duckwall v. New Albany, 25 Ind. it was held that the proctor was not entitled to re283, it was held that the defendant, under the power cover his costs for instituting proceedings for a di“to regulate " ferries having a landing within its vorce a mensa et thoro, because it did not appear that limits, could not charge a foe of $300 for a licence there there was reasonable ground for the proceeding, that for. Now $300 per annum for a licence to run a ferry being necessary to entitle the wife to pledge her huson the Ohio river at New Albany, in 1865, was proba band's credit for the costs of such proceeding; but it bly a smaller compensation relatively than $20 a year was fully conceded and held by the court that if that for keeping a wash house in Portland. There are other fact had appeared the busband would have been liable. cases, as for instance Boston v. Schaffer, 9 Pick. 419, And in the case of Stocken v. Patrick, 29 L. T. Ex. (N. and Burlington v. Putnam Ins. Co., 31 Iowa, 102, in S.) 507, where it appeared that the wife had good which comparatively high fees have been sustained; ground for instituting a suit for separation, because of but there the power to licence was backed by the fur the cruelty of her husband, and her attorney haviug ther provision that the municipal council in question brought suit for a divorce on the ground of adultery might impose such terms or charge such sum for such and cruelty, which was compromised by an agreement license as to it might seem just and reasonable, or ex for a deed of separation, the solicitor was held entitled pedient. And this is in effect, if not in form, a power to sue and recover of the husband for his costs as beto tax the licensed occupation. But here there is not tween attorney and client, including the costs as beeven an express power to license, let alone tax. The tween attorney and client in the divorce suit. Aud so power to license is only implied from the power to in the recent case of Ottaway v. Hamilton, 3 C. P. regulate, and can nly be used for that purpose. All | Div. 393, on appeal, it was held that a solicitor, emthings considered, it is apparent that the sum required ployed by the wife to take proceedings against her to be paid the city for this license is far beyond any husband to obtain a divorce on the ground of cruelty special expense that it inay incur on account of the and adultery, was entitled to sue and recover of the regulation to which it pertains; and it is quite clear husband for extra costs, that is, costs reasonably infrom this fact, as well as the time and manner of its curred by him beyond the costs taxed and allowed as payment, that this sum is in effect a tax, and was so between party and party. In that case Lord Justice intended. This being so, the ordinance is so far void, Bramwell, in the course of his judgment, put the case and the petitioner is restrained of his liberty without we are now considering. “Suppose,” said he, “a husdue process of law, contrary to the Constitution of band were to die after the petition was filed, but bethe United States. Dist. Ct. Dist. Oreg. The Laundry fore tho decree could be pronounced agaiust him, License Case. Opinion by Deady, J.
would not the common-law liability of his estate for the costs incurred by his wife coutinue in full force? I there
fore think that the power of the wife to pledge her MARYLAND COURT OF APPEALS ABSTRACT.*
husband's credit remains unimpaired.” Aud in con
clusion he said: “ Subject to the question whether EXECUTOR AND ADMINISTRATOR-COUNSEL FEC-DI
they (the costs) have been justifiably incurred, the deVORCE CASE-WIDOW CANNOT SUE FOR--COUNSEL MAY. -A widow cannot maintain an action against the ad
fendant is bound to pay them, just as if he had reministrator of her decoased husband for the amount of
tained the plamtiff to act as his solicitor." But it is a
condition of the right to recover that it be made to ap*Appearing in 62 Maryland Reports.
pear affirmatively that the suit of the wife against the
husband was reasonably and justifiably instituted. Hooper, in re, 2 DeG., J. & S. 91; Brown v. Ackroyd, 5 L. &. B. 819. In this State it has never been otherwise than that the husband has been required to pay the reasonable counsel fees for services rendered the wife in suits for divorce. The amount allowed has always depended largely upon the circumstances of the case and the pecuniary resources of the parties. Ricketts v. Ricketts, 4 Gill, 105. The law upon this subject as settled in several of the American States is at variance with that of England, and according to the decisions of the courts of those States, this action could not be maintained. But the principle of the English decisions would seem to be more in consonance with our own practico, and we shall therefore follow them. McCurly v. Stockbridge. Opinion by Alvey, C. J.
to such promise or expectation. This was the principle of the decision in Gregory v. Mighell, 18 Ves. 328.
If on the other hand a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any court of law or equity can enforce. This was the principle of the decision in Pilling v. Armitage, 1:2 Ves. 78, and like the decision in Gregory v. Mighell, seems founded on plain rules of reason and justice.” In such a case as Ramsden v. Dyson the evidence, according to Lord Kingdown's view, showed that the tenant expected a particular kind of lease, which Stuart, V. (., decreed to him, though it does not appear what form of relief Lord Kingsdown himself would have given. In such a case as the Duke of Beaufort v. Patrick, 17 Beav. 60, nothing but perpetual retention of the land would satisfy the equity raised in favor of those who spent their money on it, and it was secured to them at a valuation). In such a case as Dillwyn v. Llewelyn, 4 De G. F. & J. 517, nothing but a grant of the fee simple would satisfy the equity which the lord chancellor held to have been raised by the son's expenditure on his father's land. In such a case as the Unity Bank v. King, 25 Bear. 72, the master of the rolls, holding that the father did not intend to part with his land to his sons who built npon it, considered that their equity would be satisfied by recouping their expenditure to them. In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied. Jud. ('om. Priv. Coun. Plimncr v. Mayor of Wellington. Opinion per Curiam. [51 L. T. Rep. (N. S.) 475. ]
RECENT ENGLISH DECISIONS.
PARTNERSHIP-SHARE IN PROFITS AND LOSSES.—By an agreement signed by W. and H. and Co. it was agreed that for the part taken by W. in the business then carried on by H. and ('o., they should pay him a fixed salary of 1801. per ammum, and in addition he was to receive one-eighth share of the net profits and bear one-eighth share of
the losses, as shown by the books when balanced. W. agreed to leave with the business 1,5001., which was not to be withdrawn by him during the continuance of the agreement, and in the meantime interest thereon at 5 per cent per annum was to be paid to him. The agreement was to continue in force until the expiration of four months' notice in writing on either side, at the expiration of which the sum of 1,5001., with any arrears of interest, salary and profits, was to be paid to W., but H, and Co. were to be at liberty to pay 1,5001. to W. on giving one month’s notice in writing. IIeld (affirming the decision of Pearson, J.), tbat no partnership inter se was created by the agreement, which was only an agreement by a servant to give his services at a fixed salary, with a share of profits in addition, and a similar liability for losses. Pooley v. Driver, 5 ('h. Div. 458; 22 Eng. Rep. 214, distinguished; Pawsey V. Armstrong, 18 Ch. Div. 698, questioned. Ct. of App. IValker v. Ilirsch. (pinions by Baggallay, Cotton and Lindley, L. JJ. (51 L. T. Rep. [N. S.] 481). [:27 Eng. Rep. 512; 32 Am. Rep. 267.-En.]
LICENSE – IRREVOCABLE — MAKING IMPROVEMENTS ON LAND.—The equity to arise from expenditure on land need not fail merely on the ground that the ininterest to be secured has been expressly indicated. P. erected a jetty on the foreshore of the harbor of W. under a revocable license from the ("rown to use it for the purposes of a wharfinger; afterward, at the instance of the colonial government, he extended the jetty, and made other additions to it, and it was for some time used by the government for emigrants. Helil, that the license had become irrevocable, and that the equitable right so acquired by P. was “an estate or interest in land ” which could be the subject of compensation under local statutes. The law relating to cases of this kind may be taken as stated by Lord Kingsdown in the case of Ramsden v. Dyson, L. R., 1 H. of L. 129. The passage is at page 170 : “If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the failli of such promise or expectiltion, with the knowledge of the landlord and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect
NEGOTIABLE INSTRUMENT-COUPON BONDS-NEGOTIABILITY-SEAL.-A coupon bond of a private corporation, payable to bearer, and secured together with other bonds of the same character by a mortgage on the works of the company, is a negotiable instrument, and the mere addition of the seal of the corporation does not destroy its negotiability. When such bond is delivered by a person having possession of the same to another party who gives value for it and takes it without notice of any defect in the title, the title passes to the transferee irrespectlre of any defect in the title of the transferrer. It is held by the Supremo Court of the United States, and by the courts of our sister States, that the bond of a corporation is negotiable, and that the mero addition of the seal of the corporation which issued it does not destroy its negotiability. So where the name of the payee is left blank the holder may fill in bis own name, and bring suit on the instrument. ('hapin v. Vermiont & Mass. R. ('0., 8 Gray, 575; White v. Same, 21 How. 575. The bond of a railroad company to secure paynient of money, although under seal, when made payable to bearer or to order, is regarded as invested with all the attributes of negotiable paper. Zabriskie r. ('leveland, C. & C. R. Co., 23 id. 381; Winfield v. Hudson, 28 N. J. L. 255; Murray v. Lardner, ; Wall. 120; Morris Canal Co. v. Lewis, 12 N. J. Eq. 3:23. So municipal bonds, made payable to bearer, are held to be negotiable. They are transferable by delivery, and the holder may sue in bis own name. Taylor on Priv Corp., $ 3:26; ('ommissioners v. ('lark, 94 T. S. 278; Cromwell v. County of Sac, 96 id. 51; ()ttawa r. National Bank, 105 id. 31.?; Thompson v. Perrine, 106 id. 589. The early decisions of our own State do not recognize this rule to its full extent. The later cases however have been gradually approaching a conclusion in har