« EelmineJätka »
the difference between “shipment” and “sailing," cerned. As to them, the rule announced by Chief nor failed to examine the definitions and decisions Justice Marshall iu Brown v. Keene, 8 Pet. 112, 115, in upon wbich the argument is founded. The context of respect to averments of jurisdiction in the courts of the cases cited however prevents the application of the the United States, applies. His language is: “The decision to the one before us; and while the terms are decisions of this court require that averment of jurisno doubt well defined, there is no definition nor ad- diction shall be positive; that the declaration shall judged case which implies that an agreement to de- state expressly the facts on which jurisdiction deliver goods after prompt shipment is satisfied hy | pends. It is not sufficient that jurisdiction may be merely placing them on board a vessel, which although inferred argumentatively from its averments." All it should weigh anchor, or cast off moorings, and make this is equally true of the proceedings of courts-marother preparations to depart, could not for a consider- tial. Their authority is statutory, and the statute able period of time (in this case exceeding the custo- under which they proceed must be followed throughmary length of the intended voyage) leave the spot out. The facts necessary to show their jurisdiction, where the cargo was received. Such a shipment would and that their sentences were conformable to law, be colorable and deceptive. If it answered the letter must be stated positively; and it is not enough that of the contract, it defeated its purpose. It would not they may be inferred argumentatively. The action in fact be the inception of the voyage, and the burden required of the president is judicial in its character, of showing a bona fide shipment would not be sustained. not administrative. As commander-in-chief of the In all the cases referred to by the respondent, the army, he has been made by law the person whose obligation to ship at or within a certain period was duty it is to review the proceedings of courts-martial beld to be unperformed unless the ship might also sail in cases of this kind. This implies that he is himself at or within the time stated. Nothing less would be to consider the proceedings laid before him, and debeneficial to the purchaser. The evident object of ex- cide personally whether they ought to be carried into pressing the time of shipment, as declared in those effect. Such a power he cannot delegate. His percases, was to provide that the article purchased should sonal judgment is required, as much so as it would come forward at such time as would, in the opinion of have been in passing on the case if he had been one of the purchaser, make the venture profitable, or as to the members of the court-martial itself. He may cal] time of arrival or payment, suit his convenience. others to his assistance in making his examinations, Bowes v. Shand, 2 App. Cas. 455; Alexander v. Van- and in informing himself as to what ought to be done, derzee, L. R., 7 C. P. 530. April 19, 1887. Tobias v. but his judgment, when pronounced, must be his Lissberger. Opinion by Danforth, J.; Ruger, C. J., own judgment, and not that of another. And this disseuting.
because he is the person, and the only person, to whom
has been committed the important judicial power of UNITED STATES SUPREME COURT AB
finally determining, upon an examination of the STRACT.
whole proceedings of a court-martial, whether an offcer holding a commission in the army of the United
States shall be dismissed from service as a pupishARMY-OFFICER-COURT-MARTIAL-SENTENCE-AP
ment for an offense with which he has been charged, PROVAL BY PRESIDENT.–Under the 65th article of
and for which he has been tried. May 27, 1887. Runwar (2 St. U. S. 367, ch. 20) the sentence of a general
kle v. United States; United States v. Runkle. Opinion court-martial, in the time of peace, to the effect that a
by Waite, C. J. commissioned officer be dismissed from service, is inoperative until approved by the president, whose ac
BANKRUPTCY-PROPERTY HELD ADVERSELY-LIMItion in that respect is judicial in its character; and
TATION.-An assiguee iu bankruptcy appointed Feban order of the president approving the proceedings
ruary 15, 1873, on the 5th of April, 1880, attempted to and sentence will not be sufficient unless it is authen.
convey lauds claimed by the bankrupt at the time of ticated in a way to show otherwise than argumenta
filing his petition in bankruptcy, but which were then tively that it is the result of the judgment of the presi
and ever since held adversely under tax sales made by dent himself, and that it is not a mere departmental
the auditor-general of Michigan, of which adverse order, signed by the secretary of war aloue, which
claim the assignee had notice at the time of the conmight or might not have attracted his personal atten
veyance. Held, that as the assignee was precluded tion. The fact that the order was his owu should not
from bringing an action for the lands after the expirabe left to inference only. Mills v. Martin, 19 Johns.
tion of two years from the date of his appointment, 7, 30; Sim. Cts. Mart. (6th ed.), ch. 17, p. 294. A court
by Rev. Stat. U. S. 5057, providing that no suit shall martial organized under the laws of the United States
be maintained between an assignee in bankruptcy and a
person claiming an adverse interest is a court of special and limited jurisdiction. It is
in called into existence for a special purpose, and to per
property vested in said assignee, unless brought form a particular duty. When the object of its crea
within two years from the time when the cause action has been accomplished it is dissolved. 3 Greenl.
crued for or against the assignee, he could not, by sellEv., $ 470; Brooks v. Adams, 11 Pick. 442; Mills v.
ing the property to a third person, enable the latter to Martiu, supra; Duffield v. Smith, 3 Serg. & R. 590, 599.
maintain an action therefor. Gifford v. Helms, 98 Such also is the effect of the decision of this court in
U. S. 248. May 27, 1887. Wisner v. Brown. Opinion Wise v. Withers, 3 Cranch, 331, which according to the
by Bradley, J. interpretation given it by Chief Justice Marshall CARRIERS-LIABILITY - BILL OF LADING - WAREEx parte Watkins, 3 Pet. 193, 207, ranked a court-mar- HOUSEMEN-KNOWLEDGE OF AGENT.-(1) In an action tial as “one of these inferior courts of limited juris- of assumpsit against a railroad company for failure to diction whose judgments may be questioned collater- deliver 525 bales of cotton described in the bills of ally.” To give effect to its sentences, it must appear Jading, the evidence was that one P., a cotton broker, affirmatively and unequivocally that the court was purchased large quantities of cotton from time to legally constituted; that it had jurisdiction; that all time, and under a contract with the defendant rail. the statutory regulations governing its proceedings way company caused the cotton to be compressed and had been complied with; and that its sentence was made ready for shipping. When compressed, each bale conformable to law. Dynes v. Hoover, 20 How. 65, 80; was by him weighed, classed and marked; and when Mills v. Martin, 19 Johns. 33. There are no presump- a number of bales had been so marked, he made out a tions in its favor so far as these matters are con- bill of lading, describing them by their appropriate marks, and obtained the certificate of the superin- nance to be so, when its penalties were sought to be tendent of the compress company, indorsed thereon, enforced against any one making a use of the public that the cotton called for by the bill was in the ware- street which was barmless in fact. The town cannot house; also the signature of the defendant's freight deny to citizens the use of its streets to cross the agent. Whenever a sale was made P. assigned the township on any business that is inoffensive. It canproper bills of lading to the purchaser. Plaintiffs not by merely declaring an act to be a nuisance make claimed as such purchasers and assignees of P. There it such. The complaint, while it uses the words of the was evidence that at the time plaintiff's bills of lading ordinance, is defective in not charging facts to show were made out and signed as above, there was no cot- an offense within the spirit and meaning of the law. top of the grade called for in the warehouse and it It is not eufficient in all cases to charge an offense in was conceded that by an arrangement between P. and the words of a statute creating it. And here all that defendant bills of lading were often issued before the is charged might be admitted, and yet guilt under the cotton called for had arrived), but that in this in- by-law be successfully denied. Should we regard the stance there was other cotton on hand of an inferior complaint as sufficient to let in the proof requisite to grade, some of which certain employees of P., with sustain the defendant's guilt, yet taking the language the knowledge of defendant's freight agent, re- of the admission of the defendant below, as stated in marked with marks indicating the grade called for the record, and regarding the circumstances under by plaintiff's bills, and that defendants forwarded this which it was made, we think the conviction was with. inferior cotton to plaintiffs. Held, that in such action out any evidence upon the essential fact of nuisance. the only issue was as to defendant's liability upon the N. J. Sup. Ct., March 11, 1887. State v. Lowery. Opinbills of lading as a common carrier, and that it was ion by Knapp, J. error to charge the jury upon any theory of liability NEGLIGENCE-CONTRIBUTORY-OF INFANT.-We are as warehousemen, by reason of defendant's connec- now brought face to face with the question whether a tion with the cotton while in the warehouse, and be- bridge company is bound to maintain such a structure fore delivery for shipment. (2) The court also in- as to prevent the possibility of an accident to a child. structed the jury, that if defendant's freight agent ac- A venturesome boy, in his natural love of sport, will cepted the inferior cotton for shipment to plaintiffs, explore every nook and recess of a bridge, climb upon kuowing at the time that it was of a quality inferior to the timbers, and manage in some way to get through that called for by the bills of lading, and that the marks every hole large enough for his body to pass, and is as on the bales had been changed from marks indicat- likely to get down on the piers or upon the roof as ing a lower grade of cotton to marks indicating the anywhere else. The case at bar furnishes an illustragrade called for by plaintiff's bill of lading, then the tion of this. The boy who met with this sad mishap. defendant was liable. Held, error. May 23, 1887. St. was not content to walk upon the carriage-way, which Louis, 1. M. & S. Ry. Co. v. Knight. Opinion by Mat- was safe for all, but insisted upon walking upon a thews, J.
round gas-pipe placed some distance above the
floor, notwithstanding the remonstance of his younger ABSTRACTS OF VARIOUS RECENT DE
brother, who, child as he was, saw the danger. Of CISIONS.
course no blame is imputed to the boy for this. It was childlike, and perhaps the very thing I might
have done myself at his age, but the question is, has NUISANCE-ORDINANCE-REMOVING NIGHT-SOIL.
the bridge company been guilty of such neglect as to The complaint for violation of an ordinance designed
be liable to the boy's father for his death? Some little to repress and punish noxious and offensive practices
of the responsibility for accidents to children ought to in carrying and depositing matter rem from
remain upon the parents, whose duty is to look after sinks, cess-pools and privy vaults, merely charged
them and preserve them from danger. It must not that the defendant, in the night-time of a day named,
be overlooked that this suit was brought by the father carted, carried and took into and within the limits of
for the loss of his boy. He was in the habit of crossthe township a load of night-soil. No other circum
ing this bridge daily, perhaps several times daily, as stances were averred. Held, that an admission of all
his house was ou one side of the river and his office on the facts stated was not sufficient to sustain a couvic
the other. He must have known the condition of the tion. The complaint filed in this case charged that
bridge, and may be presumed to have considered it the defendant, in the night-time of a day named,
safe, else he would not have given the permission on carted, carried and took into and within the limits of
the day in question, as he had often done before, to the township a load of night-soil. No other circum
cross it unattended. It is hardly possible that he had stances are averred. The defendant, on being ar
not seen these openings again and again, but he also raigned, and on hearing the complaint read, admit.
knew that the bridge was perfectly safe for travel in ted, as the record shows, that the facts charged were
the ordinary way, while a child might be injured true, and could not be denied. Thereupon, without
there, as he might have been injured almost anywhere, further evidence, the justice declared his guilt, and
by courting danger in walking in dangerous places. rendered his judgment convicting the defendant of
Upon careful consideration of the case, we are unable violation of the ordinance. We think an admission
to see any such negligence on the part of the defendant of all the facts stated in the complaint was not suffi
company as to render them liable in this action. As cient to sustain a conviction. The ordinance can be
before observed, it was a safe bridge for the ordinary sustained as a reasonable regulation only upon the
purposes of travel. The child who was killed was uot ground that its design is to protect the community using it in the ordinary way. He was walking upon against practices in the matter of which it treats, such the gas-pipe, where he ought not to have been, and as are noxious or offensive. An ordinance general in which was so dangerous that his younger brother reits scope may be adjudged reasonable as applied to one monstrated with him, and warned him to get off. It state of facts, and unreasonable when applied to cir
is not necessary to impute negligence to the child; it cumstances of a different character. Penn. R. V. Jer. is sufficient that he was injured, not as the result of sey City, 18 Vr. 286. The scavenger, even with the the use of the bridge, but as the consequence of his use of improved methods of protection, may use the venturing, in his childish recklessness, where no one, public streets without injury or offense to others, and child or adult, had any business to be. Penn. Sup. Ct. cautious as courts are in declaring an ordinance void Oil City, etc., Bridge Co. V. Jackson. Opinion by Paxas being unreasonable, they would not hold this ordi
OFFICE AND OFFICER-INCOMPATIBLE OFFICES.-The be served, and become liable to a penalty if he did not offices of justice of a District Court aud of deputy do it. In many cases he is the complaining officer, sheriff are incompatible, and cannot be held by the whose complaint could only be made by himself, if he same person at the same time. In cases where incom- were also judge, unless aided by special legislation. patibility of offices has arisen independently of statu. In Com. v. Kirby, supra, it is held that the office of tory or coustitutional provision, two rules are gener- / justice of the peace and constable are not incompatially recognized : First. That incompatibility does not ble. The question is only cousidered on the ground depend upon the incidents of the offices, as upon phy- of constitutional provisions. The relation of the offisical inability to be engaged in the duties of both at cer, as judicial or revisory, is not at all discussed. The the same time. For example, in People v. Green, 5 defendant was charged with hindering an officer. The Daly, 254, it was held that the office of member of the defense was that the process was void because the Legislature and clerk of the Court of Special Sessions justice of the peace who issued it had vacated his office might be held by the same person, even though attend-by accepting the office of constable. Inasmuch as the ance upon one office prevented for the time being the court held the process to be good as that of a de facto jusperformance of the duties of the other. This point was tice, a discussion of the relation of the two offices was approved on appeal. People v. Green, 58 N. Y. 295. probably deemed unnecessary. The court add howThese opinions contain an elaborate review of the ever: “A very different case would be presented if the early cases, and clearly point out the tests by which defendant had attempted to exercise the two functhe question of incompatibility is to be determined. tions of a justice of the peace in issuing a warrant, So too in Com. v. Kirby, 2 Cush. 577, 580, the court says:
and of a constable in serving the same warrant." It “ It has never been supposed that persons holding may be said however that the respondent need not, minor offices appertaining to the executive depart- and probably will not, undertake to act in both offices ment of the government, such as deputy sheriffs, con- at the same time; but in the words of Ames, C. J., in stables or coroners, were thereby disqualified from State v. Brown, 5 R. I.1: "The admitted necessity of holding seats in the Legislature. The same was for- such a course is the strongest proof of the incompatimerly true of the judges of the Court of Common bility of the two offices," and "the question of incomPleas, who frequently held the office of senator or rep. patibility is to be determined from the nature of the resentative while in commission as judges, and were duties of the two offices, and not from a possibility, only disqualified by the statute of 1820, and the 8th or even a probability, that the defendant might duly article of the amendments of the Constitution, perform the duties of both." R. I. Sup. Ct., March 5, adopted in 1821.” Second. The test of incompatibility 1887. State v. Guff. Opinion by Stiness, J. is the character and relation of the offices, as where RAILROADS-NEGLIGENCE-CONDITION OF PREMISES. oue is subordinate to the other, and subject in some -A railroad is bound to use ordinary care to keep the degree to its revisory power; or where the functious platforms at its various station-houses in good repair of the two offices are inherently inconsistent and re- and safe condition for the use of those who have the pugnant. Iu such cases it has uniformly been held legal right to go upon them; and it appearing in this that the same person cannot hold both offices. In case that the railroad was required by statute to post Rex v. Pateman, 2 T. Rep. 777, it was declared that at the nearest station-house a notice of the killing of where a town clerk acts ministerially under the alder- stock by their trains, and that one who was missing a men, who are judicial officers, one cannot hold both cow went upon the platform of the station to read a offices. Much stress is laid upon the fact that the ac- notice posted there, taking plaintiff with him to do counts of the clerk were subject to the revision and the reading, as he himself was unable to read, and control of the aldermen. Rex v. Tizzard, 9 Barn. & C. that plaintiff, in climbing up to get at the notice, fell 418, is to the same effect. In Cotton v. Phillips, 56 through a defective plank in the platform, and was N. H. 220, where one was chosen a member of the pru- injured, held, that the railroad was liable to plaintiff. dential committee and also an auditor in a school dis- He was there through the inducement or upon the intrict, it was held that he could not hold both offices. vitation of the company, implied from posting the noThe court says: “If the same person could hold both tice for his information, and was entitled to safe acoffices, he would in fact sit in judgment upon his owu cess to his place of business. 2 Wood Ry. Law, $ 310; acts.” In England a sheriff's duties are ministerial, Carleton v. Franconia, I. & 8. Co., 99 Mass. 216. This and to a limited extent also judicial. While these pe- right of protection extends to all persons “ who have culiar functions are recognized in some cases as being rightful occasion to use the platforms," as was said necessarily imposed upon the office by legislation and by Appleton, C. J., in Tobin v. R. Co., 59 Me. 183. custom, no case upholds the propriety of exercising | This was the case of a hackman engaged in carrying both the ministerial and judicial functions at the same passengers to the railroad depot. See too Wendell v. time and in the same case. Widow v. Clerke, 1 Cro. Baxter, 12 Gray, 494. No distinction can be drawn Eliz. 76, case 38. See also argument of Sheffield in between the plaintiff and the stock-owner in the right Milward v. Thatcher, 2 T. Rep. 81. Under our law to go upon the platform to examine the notice. What there is no such confusion of duties. In this State, the latter had the right to do himself, he had the and doubtless in this country generally, a sheriff is power to authorize another to do for him. An emsimply a ministerial officer. If he performs judicial | ployee who goes upon a company's premises to receive Guties, it is by virtue of another office voluntarily as
his master's freight enjoys the same right of protecgumed. But the incongruity of such offices in one tion that the master does (Toledo, W. & W. Ry. person is manifest. To say nothing of the breach of Co. v. Grush, 67 111. 262), and for the same reason that dignity and propriety which would result from an at- the plaintiff here should be protected, viz., because he tempt to perform the duties of judge and officer to- is clothed with his principal's right to enter the premgether, the power of a judge to pass upon the suffi. ises to transact his business; and the rule applies to ciency of an officer's return, and to allow or disallow one who goes upon the company's premises to aid a his fees, is quite sufficient to bring these offices friend who is to depart or arrive by its trains. Gillis within the recognized rule of incompatibility, by rea- V. Pennsylvania Ry., supra; McKone v. Michigan son of the judicial supervision of one office and the ac- Cent. Ry., 51 Mich. 601. Ark. Sup. Ct., March 19, 1887. countability of the other. Moreover in this State an St. Louis, I. M. & S. Ry. v. Fairbairn. Opinion by officer is required to serve any process doly tendered Cockrill, C. J. to him, and thus a judge of a District Court might SCHOOLS-REGULATIONS--REASONABLENESS. - (1) A bare the process of his owo court tendered to him to rule requiring tardy pupils to remain either in the
- AGREEMENT RELATING TO
hall or in the principal's office until after the opening mistaken a teacher may be as to the justice or proexercises is a reasonable rule, but in the enforcement priety of imposing such a penalty at any particular of such a rule, due regard must be had to the health, time, it has none of the elements of false imprisoncomfort, age and mental and physical condition of the ment about it, unless imposed from wayton, willful pupils, and to the circumstances attending each par- or malicious motives. In the absence of such motives ticular emergency. More care ought to be observed in such a mistake amounts only to an error of judgment looking after the comfort of pupils, and especially in an attempt to enforce discipline in the school, for those of tender age, in extremely cold weather, than which, as has been stated, an action will not lie. Ind. when the atmosphere is nearer a mean temperature. Sup. Ct., April 28, 1887. Fertich v. Michener. Opinion Pupils known to have some mental or pbysical in- by Niblack, J. firmity may require some relaxation in the strict en- STATUTE OF FRAUDS forcement of such rule as against them. No rule, LAND - STONE QUARRY.- - If A. agrees witb B. that in however reasonable it may be in its general applica- case B. can negotiate the purchase of certain land tion, ought to be enforced when to enforce it will in-containing a stone quarry at a price not exceeding a flict actual and unnecessary suffering upon a pupil. specified sum to be paid by A., and procure a deed of Rules are often adopted inflicting a penalty forabsence the land to be made to him, they would open and from school without proper or some prescribed leave; work the quarry together, and divide the profits and rules of that class have always, so far as our in- equally between them, this is not a contract for an information extends, been held to be reasonable and terest in land within the statute of frauds. I confess sometimes necessary school regulations; and yet such that it appeared to me at firts blush that the contract a rule could not be lawfully enforced against a pupil does create an interest in said land, or convey some detained from school by sickness, a violent storm, a interest therein, to all of the parties, or to the plaiutiffs, death in the family, or any physical disability to at- or to the copartnership; but upon further and much tend. A school regulation must therefore be not only thought, and a full investigation of the subject in the reasonable in itself, but its enforcement must also be light of the authorities, it appears perfectly clear that reasonable in the light of existing circumstances. The it does not, and that the contract is not within the habit of locking the doors of the school-room during statute. Neither the contract nor the partnership the opening exercises, observed by the appellee's concerns any thing except the mere working of a stone teacher, was not an unreasonable enforcement of the quarry on the land of one of the partners, and the rule under consideration in moderate weather and selling of the stone and the profits of the business. It under ordinary circumstances. But to so lock the does not convey the stone in the quarry, or any part doors on an extremely and unusually cold morning, of it. The quarry remains the property of the dewithout causing special care and attention to be given fendant, or the owner of the land, all of the time, and to the comfort of such pupils as might thereby be re- the stone severed from the freehold by the joint labor quired to remain in some other part of the building, of the parties only becomes the property of the partwas undoubtedly both an unreasonable and a negli- nership, to be sold for a profit to be equally divided. gent, and hence an improper, enforcement of the rule, The contract contains a license to the plaintiffs to go (2) The court also instructed the jury to the effect that upon the land of the defendant, and work the quarry, if the appellee was at any time detained in the school. either as a mere verbal license which, while it exists. room for a period of ten or fifteen minutes after her will justify the entry for such purpose, or a right to so class was dismissed, as a penalty for having asked work by the authority and in the right of the defeud. leave to retire, and having retired, from the room dur- ant as one of the copartners. In either case there is no ing school hours, such detention was a false imprison- | interest in the land itself involved. It may be that ment, and a teacher who might refuse to permit a pu- such license could be revoked by the defendant at any pil to retire from the school-room, in accordance with time, but such revocation would involve a breach of the rules set out in the third paragraph of the com- the partnership contract, for which damages could be plaint, would be liable for whatever damages thereby recovered, as in this case. The same principle exists in resulted to the pupil. In our view of the principles all mining contracts when the mere working of the underlying this case that instruction was also errone- mine is the subject of the contract, and no interest in ous. Such a detention after the rest of the class was the mine itself is at all affected. This interest, as we dismissed may have been unjust in the particu- shall see, is represented by the shares of stock of a lar instance, as well as in a general sense, to the appel- company that has the mere right to work a mine. lee; and it, as well as the refusal of permission to re- Such shares represent no interest in the mine itself, tire, may have been a violation of the spirit of the rule or the land, but the mere interest in the net profits. referred to; but upon the hypothesis stated in the in- | The shareholder is entitled to his dividend, which construction, the detention did not amount to a false im-sists of his share of the net profits of the enterprise. prisonment, and the refusal of permission to retire With these preliminary observations, we will notice did not constitute a cause of action against the teacher. some of the authorities sustaining these views. In The recognized doctrine now is that a school officer is Gillett v. Treganza, 6 Wis. 343, the contract conveyed not personally liable for a mere mistake of judgment the right to dig on a certain range for lead ore, or as in the government of his school. To make him so lia. | the present chief justice said in his opinion, “to work ble, it must be shown that he acted in the matter com- or search for " lead ore on the land of one of the parplained of wantonly, willfully and maliciously. The ties. The language in this contract is “to open, dedetention or keeping in of pupils for a short time after velop, and work the said stone quarry;” and again, the rest of the class have been dismissed, or the school“ by guarrying, removing, and selling the said stone." has closed, as a penalty for some misconduct, short- There is absolutely no difference. It is said in the coming or mere omission, has been very generally opinion: “Instead therefore of parting with, grantadopted by the schools, especially those of the lowering, and conveying all the mines and lead ore that grades, and it is now one of the recognized methods were then existing within the land, the words of the of enforcing discipline and promoting progress of the agreement import nothing more tban a right or license pupils in the common schools of the State. It is a or privilege to search and get these minerals.'' And mild and non-aggressive method of imposing a pen-again: “But the plain object and intent of this agreealty, and inflicts no disgrace upon the pupil. The ad- ment appears to be, not to create a property or estate ditional time thus spent in studying his lessons pre- in the land, nor to sell the mines or mineral upsevered Bumably inures to the benefit of the pupil. However therein, but to sell a right, liberty, license, and privilege to work, mine, and search for lead ore upon the It was held a partnership in miving like any other range therein described." It is intimated in the opin- partnerships, only it was not founded on the delectus ion that such a license was probably irrevocable if the personce, and that it carried no interest in the land. mining was prosecuted with diligeuce. This case Id.; Duryea v. Burt, 28 Cal. 569. A verbal agreemeut would seem to be sufficient authority. But lest its between two or more to explore and locate, and work perfect applicability may be questioned, we will look lodes on goverument lands is not within the statute. further into the authorities. The mere right to work Murley v. Ennis, 2 Colo. 300. A verbal agreement a quarry or a mine is not exclusive of the grantor, that plaster lands and a plaster-mill should be bought and conveys no interest in the quarry or mine or the and owned by A. and B., and worked by them as land. Coll. Miues, $S 1, 5, 9; Co. Litt. 42a; 2 BI. Com. partners, is within the statute; but not so if the land 121; Brewer v. Hill, % Anstr. 413; Hewlins v. Ship- was to be owned by one of them only. Brosnan v. pam, 5 Barn. & C. 229. A verbal agreement to share McKee, 59 Mich. 107. To this case there is a vote of profit and loss in the working of a colliery is not cases of Suyder v. Wolford (Minn.), 22 N. W. within the statute. Foster v. Hale, 5 Ves. Jr. 314; Rep. 254; Carr v. Leavitt (Mich.), 20 id. 576; MilWatson v. Spratley, 10 Exch. 222. Those having a
ler v. Kendig (Iowa), 7 id. 500. These cases hold right to search for and dig ore on another's land divi
that when one person selects lands, and contracts with ded their interest into shares. It was held that such
another to purchase and hold them in his own name, shares may be conveyed by parol. Hanley v. Wond, and when they are sold the net profits to be divided 2 Barn. & Ald. 274. The liberty to dig tin and other
between them in consideration of his services, the metals on another's land is a mere license, and con
contract is not within the statute. The plaiutiff was veys no interest in the land. Hayter v. Tucker, 4 the owner of a limekiln, and it was verbally agreed Kay & J. 249. Shareholders are only interested in the
that the defendant should fill it with limestone, and profits of working the mine, and have no interest in
furuish the wood to burn it, and the lime to be equally the realty. Powell v. Jessopp, 18 C. B. 336; Walker
divided between them. It was held to be a partnerv. Bartlett, id. 845. Iu Hills v. Parker, 7 Jur. (N. S.) ship, and the defendant was liable for taking more 833, a person holding a leasehold interest in salt-works than his share. Musier v. Trumpbour, 5 Wend. 274. formed a partnership with others to work the wells
A verbal agreement of copartnership was entered into and make salt. It was held that the partnership had by several persons for tho purposes of developing no interest in the estate. In Burdon v. Barkus, 3 Giff.
plaster-beds on certain lands, and for getting out and 412, the lessee of a coal mine took in a partner to work
selling plaster, and for procuring the title to the lands. it for iron-stone and fire-olay. It was held that he
The business went on until the lands were finally could terminate the partnership at his pleasure, be bought and paid for by the profits of the concern. It cause he was alone iuterested in the lease. In Dale v.
was held not to be within the statute. Godfrey v. Hamilton, 2 Phil. 266, C. purchased the land for A.
White, 43 Mich. 171. A sale of shares of a mining and B., and they entered into a partnership with C.,
company working a mine does not convey any interest and it was agreed that C. should survey and plat the
in the land, but only in the severed mineral ores, land into lots, and do other work, and try and sell the machinery, and personal effects. Rog. Mines, 428. A lots, and when sold, the profits should be divided be
partuership for the purpose of mining for lead ore, tween them. It was held that no interest in the land irrespective of title to the lands, may be formed passed to C. by the contract. A mere parol license to by parol agreement, and will be treated, in respect to dig a well cn another's land, and carry the water in
the ore raised, like any other partnership. Sauntry pipes to his own land, conveys po interest in the land.
v. Dunlop, 12 Wis. 404. These cases clearly illustrate Houston v. Laffee, 46 N. H. 507. If one agrees with
the principles underlying this contract or partnership the owner of the land to get a railroad located and
in this case. There can do case be found, in my opinconstructed on it, and to lay it off into lots, and make
ion, of similar facts, where it has ever been held that sales, in consideration of half of the profits above cost,
such a contract was within the statute. But there are he obtains no interest in the laud. Lesley v. Rosson, many respectable authorities which hold that such a 39 Miss. 368. “A colliery and a landed estate are con
contract, even if it went further, and provided that sidered quite different by the courts; a colliery being the lands themselves should belong to the partnership, always considered as a trade, the profits of which ac
or held in trust for the partnership for the purpose of cruing from day to day belonging to those who work mining or quarrying or milling, etc., was not within it for the profits thereof." Steward v. Blakeway, L.
the statute. But such is clearly not this case; for there R., 4 Ch. App. 603. “Real estate not purchased by is no provision made for the purchase of the land, or partnership funds, although used for partnership pur
any interest in it, from the defendant, although there poses, does not become partnership property, and the
is an averment in the complaint that the defendant title is not affected by such use." Alexander v. Kim-held it in trust for the purpose of such quarrying bro, 49 Miss. 529; Frink v. Branch, 16 Conn. 261. “The
business. This can only mean that the land was to authority to do an act or series of acts upon the land
be used by the partnership only for such purpose. It of another, such as to hunt, remove stone, or cut down
appears very clear, both from reason and authority, trees, is a mere license, and conveys no interest in the
that this contract is not within the statute above land." Browne St. Frauds, § 26, and cases cited in
referred to, and is therefore valid if it could be pernote. “A parol license to dig minerals on the land of
formed within one year, and not within the other the licenser is valid." 3 Pars. Cont. 39. A third per
section of the statute. Wis Sup. Ct., March 1, 1887. son built a house on the mortgaged premises of the
Treat v. Hiles. Opinion by Orton, J. mortgagor on the agreement of the mortgagee that he TAXATION - EXEMPTION-TOOLS— PRINTING-PRESS. should be paid for it, or have a lien upon it in prefer- - A printing-press owned by a practical printer, ence to the mortgage. The agreement was held valid. editor, and publisher of a newspaper, aud necessary to Godeffroy v. Caldwell, 2 Cal. 489. The sale of a mining carry on his trade or business as printer and publisher claim does not affect the title of the land. Hitchens of such paper, is not a tool within the meaning of Code v. Nougues, 11 Cal. 29. The owner of the land ver- Miss., $ 468, exempting from taxation “the tools of any bally contracted with two others that they should dig mechanic necessary for carrying on his trade." Statand prospect for coal, and do all the other work to utes exempting property from levy and sale for the open the mine, and then that they would raise and payment of debts, and those exempting persons or sell the coal jointly, the profits to be divided equally. property from the payment of taxes, are construed