« EelmineJätka »
sign, would vot defeat a recovery on the policy. The as a total loss was recovered and repaired a year later, principle upon which the court below acted was that is not "the best evidence" that it was practicable to expressed by Chief Justice Gibson in Insurance Co. v. recover and repair it at the time of the loss. Oct. 24. Insley, ĭ Pend. St. 229, when he said that “public 1887. Orient Mut. Ins. Co. v. Adams. Opinion by policy requires no more than that a man be not suf- | Harlan, J. fered to insure against his own knavery, which is not
OFFICE AND OFFICER-ACTION ON BOND-CONTRACT to be protected or encouraged by any means; for
LIABILITY.- Suit was brought by the State, on relathough the maxim respondent superior is applicable to
tion of the owner of county warrants, finding no the reponsibility of a master for the acts of his ser
money in the county treasury to pay his warrants, vants, yet the insured, so long as he acts with fidelity, against the tax collector and his surety, alleging that is answerable neither for his servants nor for himself.”
the collector bad improperly received other warrants Williams v. Insurance Co., 3 Sum. 276. (2) The policy in payment of taxes, and had thus intentionally preprovided that the company should be free of all claim
vented any money coming into the treasury. The for loss or damage occasioned by “the derangement collector had settled according to law with the county or breaking of the engine or machinery, or any con
for taxes collected, and the County Court had apsequence resulting therefrom." Held, that the“
proved his account. Held, that there was no relation sequence' referred to was an immediate or proximate of contract or legal obligation between the owner of and not a remote consequence, and that even if the
the warrant and the collector to sustain the action. mud-valve could be considered part of the machinery, Harshman is a creditor of the county of Kuox. He the derangement of it, which appeared to have been
has no more right to interfere between that county repaired before the order to let go was given, was not
and its collector as to the manner in which that official a proximate cause of the loss. (3) The policy provided shall discharge his duties, except perhaps in case of that there should be " no abandonment as for a total
fraud or conspiracy, or by way of mandamus, than he unless the injury sustained be equiva- would have as a creditor of any individual to interfere lent to fifty per cent of the agreed value.” That value
between him and his debtors. Where such things are was $27,000. The vessel was carried over the falls at permitted at all, it is by way of a garnishee process or Louisville, Kentucky, and suuk, April 28, 1880. She attachment, which is regulated by statute, or by a bill was abandoned as a total loss May 18, 1880. The com
in chancery. The proceeding here has nothing of that pany raised her in the spring of 1881, and put her in
character. The want of privity between Harshman the condition she was in before the accident, at an ex
and the obligors in the bond on which they are sued pense of less than $6,000. Held, that the right to aban
is established by the decision of this court in Bank v. don was to be determined by the facts as they existed
Ward, 100 U. S. 202. It does not appear if all the taxes May 18, 1880, and that if it was then impracticable to
had been paid in money which they plaintiff alleges recover and repair the boat, the place where she lay,
were erroneously paid in warrants, that when that the uncertainty as to when (if at all) a rise would come to
money was paid into the treasury, the relator would float her off, and all the other attendant circumstances,
have been entitled to any of it. The discretion of the being taken into consideration, the subsequent float- County Court, and indeed its obligation to provide for ing off of the vessel would not change the result. For
the current necessities of the county, could not be inas said in Bradlie v. Insurance Co., 12 Pet. 378, 397:
terfered with by any one to direct the payment of this “If the abandonment when made is good, the rights
money to that particular debt. We do not see thereof the parties are definitely fixed, and do not become
fore that he was damaged, certainly not damaged in a changed by subsequent events; if on the other hand,
manner which the law can recognize by the collection the abandonment when made is not good, subsequent of these taxes in warrants instead of money. East St. circumstances will not affect it, so as retroactively to
Louis v. Zebley, 110 U. S. 321; Clay Co. v. McAleer, impart to it a validity which it had not at the origin." | 115 id. 616. Oct. 31, 1887. State of Missouri, ex rel. Rhinelander v. Insurance Co., 4 Cranch, 29; Marshall Harshman, v. Winterbottom. Opinion by Miller, J. v. Insurance Co., id. 202. Again: “In many cases of stranding, the state of the vessel at the time may be PATENTS - PUBLIC USE — CONSENT OF PATENTEE.such, from the imminency of the peril, and the appar- Action was brought for the infringement of reissued ent extent of expenditures required to deliver her letters-patent No. 4,372, granted to Nelson W. Green, from it, as to justify an abandonment; although by May, 1871, for an “improvement in the methods of some fortunate occurrence she may be delivered from constructing artesian wells; " the original patent her peril without an actual expenditure of one-half of having been issued in January, 1868. The plaintiffs her value after she is in safety. Under such circum- concede defendant's allegation that other persons than stances, if in all human probability, the expenditures Green put the invention into public use more than which must be incurred to deliver her from her peril two years before his application was filed, but it is are, at the time, so far as any reasonable calculations contended that this was done without his knowledge, can be made, in the highest degree of probability, be- consent, or allowance. Held, that the act of Congress yond half value, and if her distress and peril be such of March 3, 1839, $ 7, in force at the time of the issue as would induce a considerate owner, uninsured, and of the origiral patent, did not require that the public upon the spot, to withhold any attempt to get the use or sale for more than two years prior to the apvessel off, because of such apparently great expendi- plication shall have been with the consent or allowtures, the abandonment would doubtless be good." In ance of the patentee, in order to invalidate the patent. the same case the court quote with approval the fol- The question involved has never been decided by this lowing language of Kent: “The right of abandon- court. It is very plain that under the act of 1836, if ment does not depend upon the certainty, but on the the thing patented had been in public use or on sale, high probability of a total loss, either of the property with the consent or allowance of the applicant, for any or of the voyage, or both. The insured is to act, not time however short, prior to his application, the patent upon certainties, but upon probabilities, and if the issued to him was invalid. Then came section 7 of the facts present a case of extreme hazard, and of probable act of 1839, which was intended as an amelioration in expense exceeding half the value of the ship, the in favor of the inventor, in this respect, of the strict prosured may abandon; though it should happen that visions of the act of 1836. The first clause of that secshe was afterward recovered at a less expense." 3 tion provides for the protection of a person, who prior Kent Com. 321. (4) The fact that a vessel abandoned to the application for the patent, purchases or cone
structs a specific machine or article, and declares that he may use and sell such specific machine or article after the patent is issued, without liability to the patentee. The section does not require, in order to this protection, that the purchase or construction shall have been with the consent or allowance of the person who afterward obtains the patent, and seeks to euforce it against such purchaser or constructor. The words "consent or allowance" are not found in the provisions. The only requirement is that the specific machine or article shall have been purchased or constructed at some time prior to the application for a patent. The second clause of the section then passes to consider the effect upon the validity of the patent "of such purchase, sale, or use prior to the application” for the patent, and declares that “no patent shall be held to be invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandonment of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent." The expression “such purchase” clearly means the purchase from any person, and not merely from the person who becomes the patentee of the machine or article. The expression "such sale or use clearly refers to the use or sale by the person wbo has purchased or constructed the machino or article, the right to use and sell which is given to him by the first part of the section. That right is given to a person who has constructed the machine or article, as well as to one wbo has purchased it; and the plain declaration of the second part of the section is that where the purchase or construction of the machine or article took place more than two years prior to the application for the patent, or where the use or sale by the person who so purchased or constructed the machine or article took place at a time more than two years prior to the application, the patent becomes invalid. It is not possible in any other way to give full effect to the word “constructed " in the first part of the section. The word "purchased” and the word constructed” are used in the same connection, and in connection with the words “so made or purchased," which occur afterward; and the word "purchased cannot be limited to a purchase from the applicant for the patent, nor can the word “constructed " be limi. ted to a construction with the consent and allowance of such applicant, without interpolating into the statute the words “consent or allowance." We can find no warrant for doing this. The evident purpose of the section was to fix a period of limitation which should be certain, and require only a calculation of time, and should not depend upon the uncertain question of whether the applicant had consented to or allowed the sale or use. Its object was to require the inventor to see to it that he filed his application within two years from the completion of his invention, so as to cut off all question of the defeat of his patent by a use or sale of it by others more than two years prior to his application, and thus leave open only the question of priority of invention. The evident intention of Con. gress was to take away the right (which existed under the act of 1836) to obtain a patent after an invention had for a long period of time been in public use, without the consent or allowance of the inventor; it limi. ted that period to two years, whether the inventor had or had not consented to or allowed the public use. The right of an inventor to obtain a patent was in this respect narrowed, and the rights of the public as against him were enlarged, by the act of 1839. The language of section 24 of the act of 1870, now section 4886, Rev. Stat., is to the same effect, and carries out the policy inaugurated by the act of 1839. It allows a patent to be granted only for an invention which was not in public use or on sale for more thau two years
prior to the application for the patent, subject to the defense of abandonment within such two years, which is also the requirement of section 61 of the same act; while section 37 of that act requires that a person, in order to have the right to use and sell, without liabil. ity, a specific thing made or purchased prior to the application for the patent, shall have purchased it of tht inventor, or coustructed it with his knowledge and consent. In view of the fact that section 37 of the act of 1870 re-enacts the first part of section 7 of the act of 1839, with the addition, ex industria, of the requirement, in order to coufer the right to use the specific thing in question, that the purchase of it should have been from the inventor or the construction of it should have been with his knowledge and cousent, and of the further fact that section 24 of the act of 1870 re-enacts the second part of section 7 of tbe act of 1839, and does not contain a requirement that the public use or sale for more than two years prior to the application shall have been with the consent or allowance of the patentee, iu 'order to invalidate the patent, it may fairly be said that it was the view of Congress that section 7 of the act of 1839 did not require, as an element, the knowledge, consent, or allowance of the applicant. Nov. 14, 1887. Driven- Well Cases. Opinion by Blatchford, J.
RAILROAD-CONTRACT WITH - LIABILITY OF SUC. CESSOR. — Complainant covenanted with the C. & 0. Railroad Co., and conveyed to the company some land for $1,000, on condition that in the event that the property so conveyed should cease to be used for railroad purposes by the company, the estate should revert to the grantor. There was also a covenant that the complainant was to have leave to connect a branch with the track at a point near his hotel, and that the company would crect fences and protect said track. The C. & 0. Railroad Co. was sold out under foreclosure of mortgage, and the purchasers became the C. & 0. Railway Co., entitled to all the rights, property, etc., of the C. & 0. Railroad Co., subject to all restrictions imposed by law upon Jast-named company. Held, that there was nothing to justify the interposition of a court of equity to make the second company run its road through the lots sold by complainant. I. The contract with the Chesapeake & Ohio Railroad Company contains no such covenant' for laying the track of that company through the lands purchased of plaintiff as his bill alleges. Therefore if even that company was defendant in this suit, there is nothing which the court could specifically compel it to do found in this contract. 2. If there were such a contract, both the law and this contract contemplates the right of the railroad company to change its route before being built, and to abandon it afterward, and if the plaintiff is injured by this change, the remedy is clearly by an action at law for damages. 3. The present defendant, the railway company, is not shown to be under any obligation to perform the covenant of its predecessors, the railroad company, which is set up here as a matter of specific performance. The persons who purchased the railroad at tbe mortgage foreclosure sale did not thereby, under any statute of the State (act of February 1, 1871, Sess. Laws, 91), or any contract of which we are aware, become obliged to pay the debts and perform the obligations of the railroad company, Railroad Co. v. Miller, 114 U. S. 176; 5 Sup. Ct. Rep. 813. They bought the property of that company and its franchises; but if as such purchasers they therebr become bound to pay all the debts and perform all the obligations of the corporation whose property they bought, it would put an end to purcbases of railroads. The plaintiff provided his own remedy for what has happened, by the condition in his conveyance that the land should revert to bim, bis heirs or assigns, in the event of which he now com
plains. Nov. 7, 1887. Hoard v. Chesapeake & 0. Ry. was guilty of negligence. Mich. Sup. Ct., Oct. 20, Co. Opinion by Miller, J.
1887. Kenny v. Barns. Opiuion by Morse, J. WATER AND WATER-COURSE-NAVIGABLE WATERS STATUTE OF FRAUD) - CONTRACT OF SERVICE FOR A - EXACTION OF TOLLS - CONSTITUTIONAL LAW. — (1) YEAR. - A letter engaging an hotel manager at “$125 Under a statute of Michigan for the improvement per month "showed upon its face that the engagement of the Manistee river, a stream wholly within that contemplated his giving up another situation, removState, an improvement company was organized that ing with his family to an hotel several hundred miles improved the channel of the river. The company was away, and undertaking there, besides his duties as authorized by the statute to exact tolle for the use of manager, those of the secretary and treasurer to the the river thus improved. Held, that this statute is hotel company. The defendant's letter that plaintiff not in violation of the fourteenth amendment of replied accepting the position at " $1,500 per annum.” the United States Constitution, which declares that Held, that the engagement was a yearly one; that the no State shall deprive any person of life, liberty, or reply did not introduce any new terms, and defendant property without due process of law; and that the could not plead the statute of frauds. Where a perstatute did not impair the contract contained in the son is hired to serve another without any agreement ordinance of 1787 for the government of the territory as to the duration of service, there is no inflexible rule of the United States north-west of the river Ohio, of law as to the length of time the hiring is to congiving to the people the right to use the waters lead-tinue. The question as to the length of time the hiring ing into the St. Lawrence, free of duty, tax, or impost. is to continue will be governed by the oircumstances Nov. 14, 1887. Sands v. Manistee River Imp. ¡Co. of each particular case. If one is hired to work in a Opinion by Field, J.
crop being raised, tbe presumption is in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop
season. If one is hired to do general service on a ABSTRACTS OF VARIOUS RECENT DE
farm, the presumption is, in the absence of an agreeCISIONS.
ment to the contrary, or circumstances showing a con
trary intention, that the term of service is to continue LANDLORD AND TENANT - LIABILITY OF LANDLORD for a year. The same rule applies to the hiring of perTO KEEP PREMISES IN REPAIR. - Plaintiffs leased and sons to do service in any business that requires conoccupied with a dry-goods store the lower floor of de- stant labor. As this rule is not inflexible, and may be defendant's building, the second floor of which was controlled by circumstances, the circumstances of occupied by other tenants. Upon the second floor was agreeing on weekly, monthly, quarterly or half-yearly a water-oloset, under the control of the tenants, but payment of wages may be sufficient of itself to create over which defendant exercised no control, and which the presumption of a biring for the corresponding she was under no obligation by contract to care for. periods. But the circumstances of the hiring, though By improper use of some unknown person the closet no time is expressly agreed upon, may show that it became obstructed, and the water overflowed, and was to continue for a year, although the payment of damaged plaintiff. Held, in an action for these dama- wages was to occur monthly, eto. And we think that ges, that defendant was not liable. It is not shown that the facts set fortb in the writing just quoted manifest the defendant, in the lease to plaintiffs, covenanted to a hiring by the year, and that the appellant intended keep this closet, or any part of the premises in repair. to hire the appellee by the year, for it is shown by the Yet Livingstone, her agent, as shown by the testi-letter that the appellee was in business in the city of mony, did repair the closet whenever he was notified Louisville as the manager of Staniford Hotel; that he that any trouble with it existed., But this overflow of was required to give up that business and move himwater was not caused by the closet or any of the pipes self and family to Hot Springs, Arkansas, and there therein being out of repair. The whole difficulty, assume the management of the Avenue Hotel, and to leaving out, as we must, the question whether the act as secretary and treasurer of the hotel company. closet was properly constructed, arose from the negli- Was the appellee to give up his position in the Staniford gence or wanton act of some one in stopping up the Hotel in Louisville, and move himself and family to waste-pipe, and leaving the valve open. Livingstone, Hot Springs, Arkansas, a distance of several hundred the agent, or Mrs. Barns, the principal, had no care miles, at a large expense to himself, for the sake of a over or custody of this closet, or any keys to the same. month's employment at the price of $125 in the Avenue It was under the control of the Royal Templars, who Hotel? We think that neither the appellant nor the employed a man to take care of it and keep it in order. appellee contemplated a contract of this kind. We No one else had access to it without their permission, think that the writing shows that they did not; but excepting the furniture firm, who also had a key to it. it shows that they contracted for a year's service at The stoppage occurred in the night, after the store the rate of $125 per month, or $1,500 for the year. Beof plaintiffs was closed, and presumably late in the sides, the appellee replied by letter, dated the 6th of evening. We do not see how the defendant can be | October, 1882, as follows: “M. H. Smith, Esq., Vicemade liable for these damages. Even if she were President of the L. & N. R. R.- Dear Sir: I am in rebound by the covenants of the lease to plaintiffs to ceipt of yours of the fourth inst., in which you accept keep the premises in repair, of which there is no evi. my proposition to take the management of the Avenue dence, there was nothing out of repair of which de Hotel at Hot Springs, Ark., for one year, at $1,500 per fendant had any notice, or was bound to take notice. annum, and rooms and board for self and family. I By a temporary filling up of the waste-pipe the damage will make arrangements to leave for Hot Springs in was occasioned. The defendant did not have care of the next thirty days. I assure you that whatever of this closet; the duty of keeping it clean and in work- judgment, energy and ability I possess, shall be exering order when in repair rested upon others. She or cised to the fullest in advancing the interest of the her agent did not know of this stoppage causing the business committed to my care. Hoping I may sucleak, and circumstances preclude any presumption of ceed in carrying out all your wishes, I am Respectsuch knowledge, and under the facts shown, she was fully, Thomas A. Theobald.” This letter was duly not bound to know of this obstruction. It was not received by the appellant, to which he made no reply, her duty to employ some one night and day to watch and the appellee took charge of the hotel pursuant to this closet. It would be unwarranted to find that she the terms indicated in the letters. But it is contended
by the appellant that as the statute of frauds requires containing the chapel, school-room, library, museum, that he should sign a written agreement, memoran- cottages for lodging, general dormitory for 200 pupils, dum, or note, evidenciug the terms of the contract, in and dining hall, there are two farm houses, barns, and order to be bound by it, this letter did not bind him other buildings adapted to farm purposes. The farm to the terms therein indicated. There are two ans- was used for tillage, pasture, aud other agricultural wers to this position: First, the letter does not add purposes, and “oxen, horses, and swine were bred, to or change the term of the contract as indicated in reared, kept and used on it.” “No person under the the appellant's letter. As we have shown, the appel- age of sixteen years, or not having health, mental lant's letter, as to the duration of the time of service, ability and moral character, could be admitted into should be construed according to the understanding the school.” The farm was mainly carried on by the of the parties; and the appellee's letter merely de- labor of the scholars of the school, and the products of finitely interpreted that understanding, to which the the farm were for the most part consumed in said appellant assented by his silence and acquiescence. school. The animals kept on the farm were tended by Second, the contract was one that could not be wholly the plaintiff's scholars. During the year following performed within a year from the making of it; aud May 1, 1884, the products and live-stock of the farm in order to biud both parties to its performance, each were sold for cash, or exchanged in barter at current one should have signed a writing, memorandum, or market rates, amounting in value at $1,047.57. These note evidencing the term of the contract. It is true appear to have been articles not desired for conthat a writing, memorandum, or note evidencing the sumptson. Four hundred dollars of the amount was contract, signed by the party sought to be charged, received for two cows of imported stock, and their two satisfies the statutes; but to bind the other party to calves. Pork and hogs were exchanged in part for the performance of his part of the contract, where his beef, and there were other products incidental to the performance comes within the statute, it is necessary management of the farm, some of them perishable, that he should sign some writing, memorandum, or which apparently were not needed for use in the note evidencing the terms of the contract; therefore school. The use of the farm, and of the personal propas neither the appellant nor the appellee could have erty upon it, resulted beneficially to the plaintiff in wholly performed his part of the contract within a three different ways: First, it furnished for the year from the time of making it, it was necessary that scholars the field, objects, and materials necessary for the appellee, in order to be bound to perform his part their physical training and practical study of agriculof the contract, should have signed a writing evidenc- ture, in connection with manual labor, and the gening the terms of the contract. Therefore as the two eral development referred to in the above-quoted letters relate to and set out the terms of the contract statement of the purposes and aims of the school; which the statute requires to be in writing, and signed secondly, it provided food for the pupils and teachers by each party, in order to bind each to its perform- who were in attendance, and contributed directly to ance, both letters should be considered together as the economical support of the scholars, which was an forming but one contract. Ky. Ct. App., Oct. 11, 1887. important object of the institntion; thirdly, so far as Smith v. Theobald. Opinion by Bennett, J.
the products of the farm were sold, the plaintiff preTAXATION EXEMPTION SCHOOLS.- The first sumably obtained profit, and to that extent replenished question under this clause is whether the plaintiff's its treasury. The use of the property to accomplish real estate whicb was taxed was occupied for the pur- either of the first two results would be for the purpose pose for which the plaintiff was incorporated; and in- for which the corporation was formed, witbin the asmuch as the incorporation was under the general meaning of the statnte we are considering, and would law, the second question is, under the last part of said leave the whole exempt from taxation; the use of it clause, whether any portion of the taxed property, real to accomplish the last would not. To an institution or personal, was“ used or appropriated," at the time of of learning, attemptiug to furnish practical education taxation, "for other than literary, educational, benevo- in agriculture, and to give boys physical development lent, charitable or religious purposes.” The purpose of
by manual labor, a farm is as necessary as are chemi. the plaintiff's incorporation was the • education of cals and chemical apparatus to a teacher of chemistry. boys." “ Education is a broad and comprehensive And a farm cannot be managed without the personal term. It has been defined as the process of develop- property properly appertaining to it. So too in coning and training the powers and capabitities of human pection with a boarding school, situated as this was, beings.' To educate according to one of Webster's the corporation's use of the farm, to raise provisions definitions, is “to prepare and fit for any calling or for its scholars, is to be distinguished from the use of business, or for activity and uscfulness, in life.” Educa- it to increase the funds in its treasury, and thereby tion may be particularly directed to either the mental, enable it to do its charitable work. This distinction moral, or physical powers and faculties, but in its is well marked in Academy v. Wilbrabam, 99 Mass. broadest and best sense it relates to them all. The 599, and Chapel of Good Shepherd v. Boston, 120 id. plaintiff's trustees did uot exceed their authority
212. See also Female Seminary v. People, 106 Ill. 398. under their certificate of incorporation, when they The purpose referred to in the statute contemplates established an institution one of whose purposes was,
the direct and immediate result of the use of the according to the facts found, "to provide a place where property, and not the cousequential benefit to be de. young men, whose early education has been neglected, rived from the improvement of it. Where one of the could be instructed, their physical welfare cared for, objects of an institution of learning is charitable, and aud a practical knowledge of work, especially in boys are required to pay only a part of the cost of agriculture, given by requiring of each member of the their education, as in this case only $100 per year for school a certain amount, usually two hours per day,
board and tuition,- the corporation may own its of manual labor on said farm.” It appears further in property, and use it directly in the education of its the facts that “the aim of the industrial arrangements pupils, as well when the property is land upon which is not so much to secure pecuniary benefit as to pro- provisions are raised for their sustenance, as when it vide for physical oulture, teach how to do various is real estate occupied by the houses in which they kinds of farm work, form habits of industry, and in- dwell. But if it seeks to promote its educational and culcate right views of manual labor, and especially of charitable objects by obtaining profit from its property agriculture." The plaintiff's farm consists of about and filling its treasury for future use, that purpose 400 acres of land, upon which, besides the buildings is not within the exempting clause. The practical
difficulty in cases of this kind is to ascertain the pur- one case the complaint demurred to was upon a trust pose for which the real estate is occupied; when that arising from a fraud, and the other was an action to is determined, the result is reached. In this case the recover damages for that fraud, or have I failed to plaintiff's purpose in the use of its farm must be as- comprehend the force of one or the other of the deci. certained from its conduct; its acts and the declara- sious as reported ? tious accompanying them. Its general purposes in
Respectfully yours, establishing the institution, under the authority of its
D. M. WESTFALL. certificate of incorporation, are very fully set forth in CAMBRIDGE, N. Y., Dec. 14, 1887. the facts reported. One was to teach the boys, among
[The case reported in abstract was upon a comother things, agriculture. Another was to furnish them plaint to set aside a deed for fraud and undue inboard and instruction at a small charge. money and supplying the treasury was not one of the fluence. The distinction between the two decisions purposes for which the institution was founded. It is pointed out in the close of that decision, by was merely a means by which these purposes were to Finch, J., as follows: “ It is claimed, in addition, be accomplished. Was this farm used to practically that the complaint contained a cause of action in teach the boys agriculture, and give them physical the plaintiff's own right, and not derived from her training, and furnish them manual labor as a part of father, and which she asserted in due season after their education ? Was it used to furnish supplies directly to the boarding school, and so lessen the cost the disability of infancy was ended. That cause of of education there? Was it, on the other band, used action is said to exist in the false representations to produce revenue, and earn income which might made to her mother by Hoard to induce the marafterward be expended for the school? It seems to us that the farm, and the property upon it, were used in riage contract, and which he could be required to the legitimate management of the school, to directly make good to the issue of the marriage. But the accomplish its purposes, and not to obtain money for complaint does not rest upon any such right. That subsequent use in accomplishing them. The fact that cause of action concedes the validity of the deed to products were sold is a circumstance important only Hoard, and seeks to impose a trust upon the propso far as it characterizes the use. We think the sales erty conveyed by it, and it is utterly inconsistent were merely incidental to a use for the purposes of
with the allegations of the complaint, which deny the institution. If certain valuable chemicals are produced in a school by practical instruction in chemistry, wholly the validity of the conveyance and the legal and are subsequently sold instead of being wasted, title of Hoard. This suggested cause of action was that does not change the character of the use of the very properly made the subject of a new suit which apparatus, and the original ingredients employed. is itself before us on appeal, and should not be And if a farm is set apart and cultivated to supply further considered here.”—ED.] food for a family or community, it does not cease to be used for that purpose because in the economical management of it there are certain products wbich cannot be utilized otherwise than by sale. The same
NEW BOOKS AND NEW EDITIONS. considerations apply to the last question under the
BAKER ON SALES. statute, whether any portion of the property was “ used or appropriated for other than literary, educa
A Treatise on the Law of Sales of Goods, Wares and Mertional, benevolent, charitable, or religious purposes.''
chandise as affected by the Statute of Frauds. By John So long as the personal property was held by the
F. Baker. Chicago: Callaghan & Co. plaintiff, it was not used otherwise than incidentally
Here is a volume of some six hundred and fifty pages to the use of the farm, and so was not liable to taxa- on a single branch of of the statute of frauds. The eion. The subsequent sale of it had no retroactive particular subject has been treated repeatedly in effect to subject it to assessment. Unless restrained excellent works on sales and on the statute of frauds. by special provisions of law, any institution may sell It is no doubt a very important division of the statute, its property which is exempt from taxation, and prop. but this volume suggests a natural inquiry whether it erly dispose of the proceeds. The sale of farm pro
deserres so extensive independent treatment, and this ducts is ordinarily evidence that the farm is used for inquiry we should answer, for ourselves, in the negaprofit, and in most cases it would deprive a party of tive, unless the author's evident purpose of making a the exemption here claimed; but under the peculiar substitute in one volume for all the cases which need facts of this case, we deem it unimportant, and hold a table of twenty pages, is practicable or desirable, that the ruling that the action could not be main and this fundamental question we should also answer, tained was erroneous. Mass. Sup. Jud. Ct., Oct. 20, for ourselves, in the negative. If the reports must still 1887. Mt. Hermon Boys' School V. Town of Gill.
be resorted to, then the treatment which tbe subject Opiuion by Knowlton, J.
has received in more comprehensive works, is sufficient. And yet, we dare say, this magnified view of the topic will prove valuable to a good many practitioners who
have not access to large libraries. For such a lawyer, CORRESPONDENCE.
who wants the best substitute to hold in bis band in
court, or to consult in an emergency, we suppose this PIPER V. HOARD.
book will be of great usefuluess. It is not written on Editor of the Albany Law Journal:
a play which we admire or should recommend. InI am unable to reconcile to my own satisfaction the stead of definite and concise rules, with clear distinctwo reports in your last number of the ALBANY LAW tions, using cases sparingly as illustrations, the text is JOURNAL, of the very interesting case (or cases) of composed of a statement of the decisions, with long Piper v. Hoard. There seem to have been banded extracts, frequently covering sereral pages for a single down the same day, October, 11, two decisions of the The result of such a plan is confusing. The Court of Appeals; one at page 467 (opinion by Peck, reader has to read through too much to get at the ham, J.), and one at page 475 (opinion by Finch, J.) kernel. We find the same fault, to a less extent, with Are these decisions directly in couflict with each Mr. Benjamin's work on Sales, famous as it is. Mr. other, or is there this distinction, viz. : That in the Baker is a good-uatured commentator, it seems.