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made. June 7, 1887. Bank of Batavia v. New York, nials of the auswer and reply, and therefore I think L. E. & W. R. Co. Opinion by Finch, J.

the bill of particulars must be construed to contain FERRIES, NEW YORK CITY - EXCLUSIVE RIGHT

only a conditional or contingent admission framed to WHAT IS A FERRY.—11) The city of New York, owning operate in a possible emergency. As no item could be all the ferry franchises between the city and Staten proved on the trial, ordinarily, unless embraced in the Island, is not bound to allow a ferry to be operated by bill, it became necessary to name in that every charge a private enterprise between the city and the island,

which upon any theory at the trial might become adalthough the terminus in the city is seven-eighths of a

missible; and so the plaintiff, while resisting the demile distant from the terminus of the ferry authorized

fendant's claim upon a ground equally fatal to his by the city; it not appearing that it is necessary for

own, might guard against the possible failure of that the accommodation of the public. (2) A live of boats

resistance by pleading and itemizing his own charge adapted to carry travellers, with their horses, vehi

for board as in excess of the defendant's, and the cles and other property, running from pier 18, Hudson

credit given is in connection with the charge made, river, New York city, to various points on the shore

and upon the theory that both charge and credit may of Staten Island and the New Jersey coast, and re

by possibility prove to be a legal liability. The adtaru, the round trip making about twenty-four miles,

mission fairly requires to be treated as a concession of held, to constitute a ferry between New York city

the fact that board had been furnished, but does not and Staten Island. The distance is not so great as to

waive the right claimed by the denial on each side of preclude the idea of a ferry, and the business does not

contestiug a resultaut liability flowing from the fact lose that character because the boats stop at points ou

admitted. It is as if the plaintiff had said: “Board

was furnished so much by me, and so much by my adthe New Jersey as well as the Staten Island shore. June 7, 1887. Mayor, etc., of New York v. New Jersey affects both, is a legal charge; yet if mine is allowed,

versary; but I deny that either, for a reason which Steamboat Transp. Co. Opinion by Earl, J.

it amounts to so much, and I will prove it at that, NEGOTIABLE INSTRUMENTS — ACCOMMODATION IN while my adversary's is the less sum, which in that DORSER-USURY-ESTOPPEL-APPEAL - PRESUMPTION event I admit.” If this was hypothetical pleading, or -PLEADING.-(1) In an action by the indorsee of a the theories were in one view inconsistent, it is furnote against an indorser it was admitted at the trial ther to be observed that no objection was made upon that defendant was an accommodation indorser, and the trial in any manner raising the question. The that the note had its inception on its transfer to trial went from its beginning to its end, upon an asplaintiff, and there was evidence tending to show that sumption tbat the question of legal liability for board plaintiff, when he took the note, had notice that it was

was an open one on each side; and if defendant held accommodation paper. Held, that defendant was not

the contrary, he should have objected to the evidence estopped to set up a defense of usury, although he ex- offered to defeat his claim and relied upon the alleged ecuted contemporaneously with the execution of the admission. The attention of the referee would then note and a mortgage given to secure it, a certificate have been called to it, and he could have ruled upon and affidavit, upon which plaintiff testified that he re- it, and possibly the plaintiff might then have sought lied, stating that the note was business paper, was leave to ameud, and obtained perinission to strike out given for full consideration, and was subject to no the credit as made under a mistake as to its effect and defense of “want of consideration, usury, or other- construction. A bill of particulars, like a pleading, wise." (2) If an order of the General Term reversing may be amended. Melvin v. Wood, 42 N. Y. 533. And the order of the Special Term does not show that the when the amendment sought is to strike out what is reversal was made on the facts, it will be presumed in unessential to the bill, and a needless addition, leavthe Court of Appeals, upon an appeal thereto, that the ing the plaintiff's side of the account unchanged, it reversal was upon questions of law only, although the would seem quite possible to permit it. It is not the opinion in General Term shows the contrary; and it office of a bill of particulars to furnish a defendant no error in law appears in the proceedings in Special with facts whereon to found an affirmative defense in Term, the order of the General Term will be reversed his behalf. Drake v. Thayer, 5 Rob. (N. Y.) 694. A and that of the Special Term affirmed. (3) The usual plaintiff is not bound to furnish a statement of payrule for the construction of pleadings applies as well ments or offsets which he has voluntarily credited. to an answer of usury as to any other defense, and Ryckman v. Haight, 15 Johns. 222; Williams v.Shaw, 4 lack of precision and certainty in the answer, by which Abb. Pr. 209. Where he has done so in such manner as the plaintiff could not have been misled in respect to by mistake to have periled his right, or made ambiguthe defense intended, or as to the circumstances re- ous hls meaning, an amendment allowed would not be lied upon to support it, will be disregarded. June 7, an unwarranted discretion. But in this case the de1887. Lewis v. Barton. Opinion by Andrews, J. fendant went to judgment without once relying upon

PLEADING-BILL OF PARTICULARS-ADMISSION BY the alleged admission, or drawing attention to it. He GIVING CREDIT.-A. sued B., his son-in-law, on a note sees the evidence which defeats it offered and given in and running account for board and other items. B. silence; and not until the decision is made, when opin his answer denied any indebtedness, and pleaded a portunity for amendment is gone, does he raise the counter-claim for board, goods sold and money ad-point. We think that is too late, and furnishes no Fanced. Plaiutiff filed a reply denying the allegations just ground for a reversal of the conclusion reached. in the answer. The case was referred. Each party June 7, 1887. Case v. Pharis. Opinion by Finch, J. furnished the other with a bill of particulars, and SALE-ACCEPTANCE-WARRANTY.-The fact that a these bills were admitted in evidence without objec- purchaser of goods manufactured on his order, wbile tion. The referee reported that neither party was en. refusing to pay for them on the ground that they did titled to any thing for board, because of their rela- not correspond with his order, refused to give them tionship, no agreement to pay board being proven, up before taking advice as to his rights in the prembut directed judgment for plaintiff for amount due on ises, does not as a matter of law show an acceptance other items. Held, that under the pleading a credit of the goods under the contract so as to render him allowed defendant for board in plaintiff's bill of par- liable for the contract price. The defendant is entiticulars was not a conclusive admission that bound tled to have the jury determine-First, whether his him, and that the report of the referee that nothing refusal to return the goods was absolute, or merely a was legally due for board should be affirmed. It is tentative proceeding; and second, whether his conimpossible to harwouize such a liability with the do- | tract did not eutitle him to retaiu the goods, although

*

not conforming to the agreement, and claim damages porary inconvenience resulting therefrom. We neeå for breach of warranty. June 7, 1887. Norton v. scarcely suggest that this duty, in a particular sense, Dreyfuss. Opinion per Curium.

rests upon corporations, which keep in their employWATER AND WATER-COURSES--DIVERSION OF SPRING

ment large bodies of men, whose support depends --DAMAGES -- TRIAJ. -- OBJECTION – LIMITATION.--(1)

upon their ready obedience of the orders of their The diversion of the water of a spring from its natural superior officers, and who being organized for the acchannel, whereby plaintiff's intestate was deprived of complishment of illegal purposes, may endanger the its use for his tamery, held, a ligal injury, for which

public peace, as well as the personal safety and the he was entitled to compensation in damages. (2) For property of others beside those immediately concerned the diversion of the waters of a spring the measure of

in their movements. (2) A corporation is liable for all damages is the diminished rental value of the tannery thority of the corporation, express or implied. In

torts committed by its servants and agents, by aupremises for the purposes of that business during the period of diversion, and it is no objection to granting Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 207,

the court held that a railroad corporation was responsuch damages that the plaintiff did not demand them

sible for the publication by them of a libel. The court, in his complaint, or that he mistook the precise dam

upon a full review of the authorities, held it to be the ages to which he was entitled. (3) The burden of

result of the cases “that for acts done by the agents proving in such action that the plaintiff's intestate neglected to take measures to supply himself with

of a corporation, either in contractu or in delicto, in

the course of its business and of their employment, water for use in his tannery from other sources, and by such neglect increased his damages, is upon the de

the corporation is responsible as an individual is re

sponsible under similar ciscumstances." In State v. fendant. (4) The objection that plaintiff is confined

Morris & E. R. Co., 23 N. J. Law, 369, it was well said to a recovery of the exact damages specified in his bill of particulars should be raised when he offers evidence

that, “if a corporation has itself no bands with which onthe,question of damages, and the court is not bound

to strike, it may employ the hands of others; and it to entertain it on motion for nonsuit. (5) An action

is now perfectly well settled, contrary to the ancient

authorities, that a corporation is liable civiliter for all to recover damages for the wrongful diversion of the waters of a spring which supplied plaintiff's tannery,

torts committed by its servants or agents by authority

of the corporation, express or implied. * being one for a continuing injury, is not barred by the

* The

result of the modern cases is that a corporation is six years' limitation, except as to the damages accrued

liable civiliter for torts committed by its servants or more than six years prior to the commencement of the action, and the further extension allowed execu

agents precisely as a naturai person; and that it is tors and administrators. Arnold v. Hudson R. R. Co.,

liable as a natural person for the acts of its agents

done by its authority, express or implied, though there 55 N. Y. 661; Waggoner v. Jermaine, 3 Denio, 306; Uline v. New York Cent. & H. R. R. Co., 101 N. Y.

be neither a written appointment under seal, nor a 98; Bare v. Hoffman, 79 Penn. St. 71; Thayer v. Brooks,

vote of their corporation constituting the agevcy or 17 Ohio, 489.

See also Salt Lake City v. Hol

authorizing the act.' Colrick y. Swinburne. May 3, 1887. ()pinion by Andrews, J.

lister 118 U. S. 256, 260; New Jersey Steam-boat Co. v. Brackett, 7 Sup. Ct. Rep'r, 1039 (present term); National Bank v. Grabam, 100 U. S. 699, 702. (3) One

who wbile in the employ of a railroad company in DVITED STATES SUPREME COURT AB

peaceable possession of a line of railroad is injured by STRACT.

the agents of another company, who are the govern

ing officers of the compauy, in the latter's attempt to ASSAULT AND PATTERY STRUGGLE FOR POSSES- gain possession of the road, may recover punitive S'ON OF RAILROAD — DAMAGES.- (1) Plaintiff, in an damages from the latter company, if the said agents action to recover damages for injuries to his person, acted with bad intent, and in pursuance of an unlawwas the employee of a railroad company in actual and ful purpose to forcibly take possession of the road, and peaceable possession of a line of railroad. The de- in doing so caused the injury complained of. The fendant railroad company, with an armed body of men, right of the jury in some cases to award exemplary attempted to drive away the agents and servants of or punitive damages is no longer an open question in the former company, and in the attempt plaintiff this court. In Day v. Woodworth, 13 How. 371, which received his injuries. Plaintiff bad armed to protect was an action of trespass for tearing down and de. himself and the property of which he and his co- stroying a mill-dam, this court said that in all actions employees were in possession. Held, that the defend of trespass, and all actions on the case for torts, "a ant railroad company was liable, without reference to jury may inflict what are called exemplary, punitive, the question of legal title or right of possession. It or vindictive damages upon a defendant, having in was a demonstration of force and violence, that dis- view the enormity of his offense rather than the measturbed the peace of the entire country along the line ure of compensation to the plaintiff;” and that such of the railway, and involved the safety and lives of exemplary damages were allowable "in actions of many human beings. It is a plain case, on the proof, trespass where the injury has been wanton or maliciof a corporation taking the law into its own hands, ous, or gross or outrageous.' The general rule was and by force and the commission of a breach of the recognized and enforced in Philadelphia, W. & B. R. peace, determining the question of the right to the Co. v. Quigley, which as we have seen was an action possession of a public highway established primarily to recover damages against a corporation for libel; in for the convenience of the people. The courts of the the latter case the court observing that the malice territory were open for the redress of any wrongs that spoken of in the rule announced in Day v. Wood worth had been, or were being committed against the de. was not merely the doing of an unlawful or iujurious fendant by the other company. If an appeal to the law, act, but the act complained of must have been confor the determination of the dispute as to the right of ceived “in the spirit of mischief, or of criminal indifpossession, would have involved some delay, that was ference to civil obligations." See also Milwaukee, etc., no reason for the employment of force, least of all, for R. Co. v. Arms, 91 U. S. 492, Missouri Pac. Ry. Co. v. the use of violent means under circumstances im- Humes, 115 id. 512, 521; Barry v. Edmunds, 116 id. periling the peace of the community and the lives of 550, 562, 563. The doctrine of punitive damages should citizens. To such delays all, whether individuals or certainly apply to a case like this, where a corporacorporations, must submit, whatever may be the tem- tion, by its controlling officers, wantouly disturbed the peace of the community, and by the use of violent liable as if he were, in fact, a partner or joint trader. means endangered the lives of citizens in order to " Where the parties are not in reality partners," says maintain rights for the vindication of which, if they Story, “but are held out to the world as such in existed, an appeal should have been made to the transactions affecting third persons,” they will be judicial tribunals of the apuntry. May 27, 1882. Den- held to be partners as to such persons. Story Partn. ver & R. G. Ry. Co. v. Harris. Opinion by Harlan, J. $ 64. And in Gow on Partnership, 4, it is laid down

as an undeniable proposition that " ASSIGNMENT FOR CREDITORS -- MORTGAGE — RETEN

persons appearing

ostensibly as joint traders are to be recognized and TION OF POSSESSION PREFERENCES - PAYMENT OF

treated as partners, whatever may be the nature of LOANS. -- (1) An insolvent debtor, just before he made

the agreement under which they act, or whatever and recorded his general assigument, executed and recorded a mortgage of certain real estate included in

motive or inducement may prompt them to such an

exhibition." And so it was adjudged in Waugh v. the assignment, in which he secured sureties on his

Carver, 2 H. Bl. 235-246, where it was said by Lord note. Until default, the debtor was to remain in pog

Chief Justice Eyre, that if one will lend his name as a session of the real estate conveyed. Held, that the assignment was not rendered in valid by the reserva

partner he becomes, as against all the world, a partner, tion of the possession of the land mortgaged to the

“ not upon the ground of the real transaction between

them, but upon principles of general policy, to prevent debtor. (2) In Mississippi a general assignment by an

the frauds to which creditors would be liable.” We insolvent debtor is not invalid because it contains

do not mean to say that such liability exists in every preferences. (3) The fact that during the period im

case where the person sought to be charged holds himmediately preceding the assignment which the insol

self out as a partner or joint trader with others. The vent debtor knew was impending, and for which he was getting ready, he paid money to his wife in settle qualifications of the general rule are recognized in ment of a bona fide loan which she had made him, does Thompson v. First Nat. Bank of Toledo, 111 U. S. 529,

where it was held, upon full consideration, that “a not impair the subsequent assignment. But as counsel well observes, if that payment were fraudulent, it

person who is not in fact a partner, who has no inter

est in the business of the partnership. and does not would not vitiate a subsequent assignment. A fraudulent disposition of property does not of itself impair a

share in its profits, and is sought to be charged for

its debts because of having held himself out, or persabsequent general assignment. The assiguee may sue

mitted himself to be held out as a partner, cannot be for its recovery, and if successful, it will be for the

made liable upon contracts of the partnership except benefit of the creditors precisely as if it had been in

with those who have contracted with the partnership cluded in the assignment. Wilson v. Berg, 88 Penn. St. 167; Reinhard v. Bank of Kentucky, 6 B. Mon.

upon the faith of such partnership." At the same time 252. (4) The insolvent debtor kept a store, from which

the court observed that there may be cases in which

the holding out has been so public and so long conit was customary for his residence to draw its supplies.

tinued as to justify the inference, as matter of fact, His wife was one of his clerks, and she was privileged to take money from the cash drawer in the course of

that one dealing with the partnership knew it and rebusiness. Held, that the continuance of these things

lied upon it, without direct testimony to that effect. during the time immediately preceding the assignment

As there is no evidence of any direct representation did not operate to invalidate it. May 27, 1887. Estes by these transportation companies, or any of them, to v. Gunter. Opinion by Field, J.

the shipper of the cargo in question, as to their rela

tions in business with each other, or as to their relaCARRIER NEGLIGENCE - JOINT ENTERPRISE.

tions respectively with the Kountz Line corporation, Four steam-boats, owned by four separate transporta- or the Kountz Line, the inquiry in this case must be tion companies, were placed by their owners, or were whether they so conducted themselves, with reference permitted by their owners to be placed, before the

to the general public, as to induce a shipper, acting public as being engaged in the same trade, and as con- with reasonable caution, to believe that they had stituting together the "Kountz Line," with a common formed a combination in the nature of a partnership, agent called the “ Kountz Line" corporation, which or were engaged as joint traders under the name of was invested with unlimited authority in their general the Kountz Line. In our judgment, this question management, and in respeot to rates of transportation. must be answered in the affirmative. It could not, we No contracts were made for transportation in the re- think, be otherwise answered, consistently with the spective corporate names of the transportation com

inferences which the facts reasonably justify. May 23, panies, but the Kountz Line corporation, as their com

1887. Sun Mut. Ins. Co. of New Orleans v. Kounta mon agent, was empowered or permitted to do busi. Line. Opinion by Harlan, J. ness for them, using in the agent's discretion, when making contracts, either the name of the Kountz Line SALE BREACH OF WARRANTY - PLEADING or the names of the respective boats of the line. Held, PROOF - SCIENTER EVIDENCE. — (1) Where, in an that the several transportation companies, having action to recover damages for the sale to one of county held themselves out as united in & joint enterprise, bonds purporting to be genuine and valid, but which were jointly liable for the default or negligence of those turned out to be worthless, the plaintiff in his complaced in cbarge of any of the boats, and that the fact plaint makes out a case of tort for the breach of an that the transportation companies owned no property express warranty in the sale of the bonds, he is entitled in common, and that each was entitled to receive the to recover if he establishes the breach of warranty, net earnings of its own boat was immaterial. It is not without proving a scienter, though the complaint conclaimed that the four transportation companies, tains every allegation essential to support an action organized in 1872, can be held jointly liable for the logs for deceit. (2) Where, in an action for a breach of an of the produce and merchandise shipped on the Yeager express warranty in the sale of county bonds, as to by reason of their being in fact partners, having a their genuineness, the evidence tends to show that the right to participate in the profits of the business con- defendant expressly affirmed the regularity and validducted by and in the name of the “ Kountz Line." ity of the bonds, the question of warranty should go They did not share, or agree to share the profits, or to to the jury. The bill of exceptiong states that the evidivide the losses of that business as a unit. On the dence, in behalf of the plaintiff, tended to show, that other hand, it is not disputed that according to well- although the defendant knew or had reason to suspect, settled principles of law, a person not a partner or when the bonds were sold, that they were not genuine joint trader may, under some circumstances, be held and valid, he “expressly affirmed their regularity and

AND

validity.” These words may not necessarily import towns and cities to keep their streets in repair, yet if an express warranty. But no particular phraseology no statute, expressly or by implication, makes them or form of words is necessary to create a warranty of liable to a private action by an injured party for damthat character. As was held by the Court of Appeals ages sustained by reason of a failure to discharge the of Maryland in Osgood v. Lewis, 2 Har. & G. 495, 518, duty, they are not liable. Upon this question the au"an affirmation of the quality or condition of the thing thorities are not agreed, and differ as to where the sold (not uttered as matter of opinion or belief), made weight of authority lies. But while they differ in this by the seller at the time of the sale, for the purpose of respect, they are almost unanimous in holding that an assuring the buyer of the truth of the facts affirmed, action cannot be maintained against counties or parand inducing him to make the purchase, if so received ishes, unless authorized by statute, for damages susand relied on by the purchaser, is an express warranty. tained through their neglect to keep their bridges and And in case of oral contracts, on the existence of these highways in repair, although the duty of doing so is necessary ingredients to such a warranty, it is the clearly enjoined upon them by law, and they have auprovince of the jury to decide, upon considering all thority to collect taxes or make adequate assessments the circumstances attending the transaction.” To the for that purpose. It was so held by this court in same effect are Henshaw v. Robins, 9 Metc. 83, 88; Granger v. Pulaski Co., 26 Ark. 37. The reason of Oneida, etc., v. Lawrence, 4 Cow. 442; Cook v, Mos- this rule is that they are a part of the State govern. eley, 13 Wend. 278; Chapman v. Murch, 19 Johns. 290; ment, and their functions are wholly of a public naHawkins v. Berry, 5 Gil. 36; McGregor v. Penn, ture, and their creation a matter of public conven9 Yerg. 76, 77; Otts v. Alderson, 10 Sm. & M. 476. In ience and governmental necessity. The reason for Schuchardt v. Allens, 1 Wall. 359, 368, which was an the application being the same it is difficult to unaction on the case for a false warranty on the sale of derstand why this rule does not apply and should not certain goods (the declaration also containing a count be enforced as to incorporated towns and cities in refor deceit), the court said that it was now well settled, spect to streets; for like counties, they are a part of both in Euglish and American jurisprudence, that the machinery of the State, and are its auxiliaries in either case or assumpsit would lie for a false warranty, the important business of municipal rule and internal and that, “ whether the declaration be in assumpsit or administration, and their functions are almost wholly tort, it need not aver a scienter; and if the averment of a public nature. Like counties, their functions, be made, it need not be proved.” It was also said rights and privileges are under the control of the Legthat, “if the declaration be in tort, counts for deceit | islature, and may be changed, modified or repealed, may be added to the special counts, and a recovery as a general rule, as the exigencies of the public sermay be had for the false warranty or for the deceit, vice or the public welfare demand. Like counties, according to the proof. Either will sustain the action." they can sustain no right or privilege, or their existSee also Dushane v. Benedict, 120 U. S. 636. In 1 ence, upon any thing like a contract between them Chit. Pl. 137, the author says that case or assumpsit and the State, because there is not, and cannot be, any may be supported for a false warranty on the sale of reciprocity of stipulation, and their objects and duties goods, and that, “ in an action upon the case in tort are wholly incompatible with every thing of the nafor a breach of a warranty of goods, the scienter need ture of a compact. The duty of keeping in repair the not be laid in the declaration, nor if charged, could it public highways in their respective limits is imposed be proved." In Lassiter v. Ward, 11 Ired. 444, Ruffin, on both for the benefit of the public, without any conC. J., citing Stuart v. Wilkins, 1 Doug. 18, and Wille sideration or emolument received by either. Before iamson v. Allison, 2 East, 446, said: “It was accord- the incorporation of the town or city, the county was ingly there held that the declaration might be in tort, charged with the duty of keeping its highways in rewithout alleging a scienter, and if it be alleged in ad- pair. When the town or city becomes incorporated, dition to the warranty, that it need not be proved. that duty is transferred to the town or city-from one The doctrine of the case is, that when there is a war- governmental agency to another.

The object, purranty, that is the gist of the action, and that it is only pose, reason and character of the duty are the same in when there is no warranty that a scienter need be both cases. This being true, there can be no reason alleged or proved. It is nearly a half century since the why the town or city shall be any more liable to a pridecision, and during that period the point has been vate action for neglect to perform this duty than the considered at rest, and mauy actions have been brought couuty previously was, unless the statute transferring in tort as well as ex contractu on false warranties." the duty clearly manifests an intention in the LegisAnd so in House v. Fort, 4 Blackf. 293, 294, it was said lature to impose this liability. Young v. City Counthat “the breach of an express warranty is of itself a

cil of Charleston, 20 S. C., 119. We think the streets valid ground of action, whether the suit be founded on

of a own or city, like all other roads, are public hightort or on contract; and that in the action on tort, ways; that the duty of keeping them in repair is a the forms of the declaration are that the defendant duty to the public, not to private individuals; and falsely and fraudulently warranted, etc., but the

that no civil action arises from an injury resulting words falsely and fraudulently, in such cases, are con

from a neglect to keep them in repair. In the absence sidered as only matters of form." But as to the

of a statute, there is no difference between the liabilscienter the court said “that is not necessary to be ity of an incorporated towy or city and a county in laid, when there is a warranty, though the action be

such cases. Such distinction would be contrary to in tort; or if the scienter be laid, in such a case there every principle of fairness, reason and justice. We are is no necessity of proving it." See also Hillman v.

sustained in our view by the following, among other, Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. 495, authorities: Hill v. Boston, 1:22 Mass. 357 ; Detroit v. 520; Trice v. Cockran, 8 Grat. 450; Gresham v. Postan, Blakeby, 21 Mich.

106; Young v. Charleston, 20 S. C. 2 Car. & P. 540. May 27, 1887. Shippen v. Bowen. 116; Navasota v. Pearce, 46 Tex. 525; Pray v. Jersey Opinion by Harlan, J.

City, 32 N. J. L. 394; Winbigler v. Los Angeles, 45 Cal. 36; Oliver v. Worcester, 102 Mass. 499; Mower v. Lei

cester, 9 id. 250; Mitchell v. Rockland, 52 Me. 123; ABSTRACTS OF VARIOUS RECENT DE

Hyde v. Jamaica, 27 Vt. 443; Detroit v. Putnam, 45 CISIONS.

Mich. 265; French v. City of Boston, 129 Mass. 592. Iu

the first four cases named the question is so fully and MUNICIPAL CORPORATIONS--DEFECTIVE STREETS- ably discussed, and the English and American authorLIABILITY.-Although it is the duty of incorporated ities so fully and satisfactorily reviewed, that it would

lyx. Alley. Opinion by Virgin, J.

be a work of supererogation to attempt to add to what, y. Howard, 4 Mass. 97; 2 Kent Comm. *192; Weeks v. is there said. Ark. Sup. Ct., May 7, 1887. City of Merrow, 40 Me. 151; Gray v. Durland, 50 Barb. 100; Arkadelphia v. Windham. Opinion by Battle, J. Furman v.Van Sise, supra (both opinions); Rev. Stat., PARENT AND CHILD-OBLIGATION TO SUPPORT

ch. 59, $ 24. This leads to an inquiry into the effect of

the divorce a vinculo alone, unaccompanied by any MOTHER-DIVORCE.-Irrespective of any statutory provision relating thereto, a father is bound by law to sup

decree committing the custody of the children to the

mother; for when such a decree is made then the port his minor children; but it is otherwise with the

father would have no right, either to take them into mother during the life of the father, and the mother may maintain an action for the necessary support of

his custody and support them, or employ any one else their minor children, fnrnished by her after a divorce 1.v. Merrick, 10 Cush. 41; Brow v. Brightman, 136 Mass.

to do so, without the consent of the mother (Hancock a vinculo decreed to her for “desertiop and wait of support,” no decree for custody or' alimony having

187; Finch Finch, 22 Conn. 411), although it is held

otherwise in some jurisdictions. Holt v. Holt, 42 been made. In Denpis v. Clark, 2 Crush. 352, 353, the court said: “By the common law of Massachusetts,

Ark. 495. Bart decree of custody to the mother is and without reference to any statute, a father, if of

predicated of its primarily belonging by right to the sufficient ability, is as much bonod to support and pro

father, and the granting of it implies that such action vide for his infant children, in sickness and in health,

on the part of the court is absolutely essential to imas a husband is bound by the same law and by the

posing upon her) the legal obligation of supporting common law of England to súpport and provide for their minor children. The cases which hold that in his wife. And if a husband desert his wife, or wrong. impliedly hold thpt in the absence of any such decree

case of a decree for custody the father is not holden fully expel her from his houseand make no provision for her support, one who furnishes her with necessary

he is liable. Brod v. Brightman, supra. When the supplies may compel the husband, by an action at law,

bond of matrimony was dissolved these parties beto pay for such supplies. And our Taw is the same, we

came as good as strangers, tad the plaintiff may then have no doubt, in the case of a father who deserts or

maintain ax action against the defendant for any wrongfully discards his infant chihren." This, upon

cause of action which at least subsequently accrued. the ground of agency. Reynolds v. Sweetser, 15 Gray,

Carltonv. Strlton, 62 Me. 115; Webster v. Webster,

58 Me. 18 Maine Sup. Jud. Ct., March 10, 1887. Gil80; Hall v. Weir, 1 Allen, 261 : Camerlin Pálmter Co.,

his father's house, without any fault of the latter, carries with him no credit on his father's account even for

THE SIX FELLOWS. necessaries. Weeks v. Merrow, 40 Me. 151; Angell v. McLellan, 16 Mass. 27. Otherwise a child, impatient

IMPROMPTU BY THE LATE DAVID BARKER, OF MAINB. of parental control while in his minority, would be

'Twas yesterday - or day before encouraged to resist the reasonable control of his

I and a country cousin father, and afford the latter little means to secure his

Saw six grave fellows on a seat, own legal rights beyond the exercise of physical restraint. White v. Henry, 24 Me. 533. Moreover, in

(Near balf a "baker's dozen.") actions for seduction, whereof loss of service is the

'Twas latish in the afternoon, technical foundation, the loss need not be proved, but

And rather chilly weatherwill be presumed in favor of the father who has not

So these six fellows in a box parted with his right to reclaim his minor daughter's

Were huddled up together. service, although she is temporarily employed elsewhere. Emery v. Gowen, 4 Me. 33. “And this rule

Now some of them would talk aloud, results from the legal obligation imposed upon hlm to

And some of them would mutter, provide for her support and education which gives

And some of them were lank and lean, him the right to the profits of her labor.” Blanchard

And some were fat as butter. v. Ilsley, 120 Mass. 489; Kennedy v. Sbea, 110 Mass.

Another fellow * _ 'cause the seat 147; Emery v. Gowen, supra; Furman v. Van Sise, 56

Wan't wide enough to hold him N. Y. 435, 444. So also in that large class of cases

Sat near, and with a pen wrote down wherein needed supplies furnished by the town to

What these six fellows told him. minor children, between whom and their father, though they lived apart, the paternal and filial rela

Two other fellows with the six tions still subsisted, are considered in law supplies in

Make eight, when all together: directly furnished the father. The reason is that

Perhaps these fellows stayed away he was bound in law to support them. Garland v.

Because 'twas rainy weather. Dover, 19 Me. 441. We are aware that courts of the

I noticed those six fellows chere highest respectability, especially those of New Hamp

Who in a kind of line were – shire and Vermont, hold that a parent is under no le

Wore merely middling kind of clothes, gal obligation, independent of statutory provision, to

And not so good as mine were. maintain his minor child, and that in the absence of

They sat and looked upon some books any contract on the part of the father, he cannot be

I think they call them dockets; held except under the pauper laws of those States

They had no blacking on their boots, which are substantially like our own. Kelley v. Davis,

No watches in their pockets. 49 N. H. 187; Gordon v. Potter, 17 Vt. 348. But as

I gazed upon those fellows there, before seen, the law was settled otherwise in this

And as the twilight streamed off, State before the separation, and has been frequently

Strange fancies flittered thro' my brain recognized in both States since; and we deem it the

Few mortals ever dreamed of; more consistent and humane doctrine. It is also settled that at least during the life of the father, the

For these six fellows hold a power mother, in the absence of any statutory provision or

A power for good or evil decree relating thereto, not being entitled to the ser

Which analyzed and understood vices of their minor children, is not bound by law to

Would fright the very devil. support them. Whipple v. Dow, 2 Mass. 415; Dawes

*Reporter of Decisions.

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