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agreement not to remove casing from a well upon abandonment was the value of the casing when removed.—Johnson V. Hinkel, Cal. App., 154 Pac. 487. 90.
Mortgages--Equity.-Transaction whereby mortgagors executed a deed of their lands, worth $1,000 to $1,250, to the mortgagee, who had refused to renew, for his agreement in writing that they might annul such deed by the payment of $1,000 before a fixed date, the mortgagee and his heirs taking and remaining in undisturbed possession of the land thereafter for seven years, held not to constitute a mortgage in equity.-Charles V. Thacker, Ky., 181 S. W. 611.
91. Municipal Corporations—City Attorney.A city attorney must be a licensed attorney, though the statute does not so provide nor prescribe his duties.-Baxter v. City of Venice, Ill., 111 N. E. 111.
92. -Ordinance.-Since the power of a city council to regulate buildings is impliedly to be exercised by a majority vote, an ordinance requiring a two-thirds vote for the issuance of a building permit upon which the building inspector reported adversely is void as to that requirement.-State v. Gitchell, Vt., 96 Atl. 383.
93.—Sidewalk.-A resolution for the laying of concrete walks at a fixed grade must in the absence of evidence, be presumed not to have been passed with the formality which is to be observed for the passage of
ordinance. Ketchum v. City of Monett, Mo. App., 181 S. W. 1064.
94. Navigable Waters-Boundary. Where land conveyed by the acre was bounded by an object on the west bank of a river, which was made the east boundary of the land, a subsequent change in the river bank did not entitle the grantee to any land which might be added, for the original bank marked the boundary or the grant.-Powell v. City of Rochester, N. Y. Supp., 157 N. Y. Supp. 109.
95. Negligence-Child.-In passing on child's contributory negligence, held that its greater experience or familiarity with or knowledge of instrumentalities and dangers or greater capacity and intelligence than ordinary child of its age may be considered.—Thomas V. Oregon Short Line R. Co., Utah, 154 Pac. 777.
96.—Child.—Damages are recoverable from the owner of land for the death or injury of a child of tender years, even though technically a trespasser, who has been attracted to
the place of the accident thereon by dangerous agency in the nature of an attractive nuisance. - Barnhart v. Chicago, M. & St. P. Ry. Co., Wash., 154 Pac. 441.
97.-Warning:-A servant of a terminal association, injured by defendants' automobile truck while repairing the floor of a subway in the station through which the automobile passed, will not be denied recovery under the rule that a railroad company assumes no obligation to warn section hands engaged on the tracks of approaching trains or otherwise look out for their safety.-Papic v. Freund, Mo. App., 181 S. W. 1161.
98.—-Willful Injury.-A “willful injury" is a positive act, while an “injury from negligence" is a negative act resulting from absence of such care as it was defendant's duty to use.-Thayer v. Denver & R. G. R. Co., N. M., 154 Pac. 691. 99.
Parent and Child-Abandonment.--The mere breaking up of a home by common consent of the wife and the husband, whereby the wife took possession of all the home property, is insufficient to show abandonment of his child by the father.-State v. Neuroth, Mo. App., 181 S. W. 1061.
100. Perpetuities—Trust.-Where a declaration of trust authorized the trustee to hold possession of the property for an indeterminate period, which might last for the whole of his
life, held that the provision was bad as a perpetuity, as it might suspend alienation longer than two lives.-Allen v. Litchard, N. Y. Supp., 157 N. Y. Supp. 19.
101. Principal and Agent-Secret Instructions.-Though defendant instructed his agent, who had the negotiations with plaintiff, that a check for part of the amount claimed was to be given in full payment, such instructions are not binding on plaintiff, and it may rely on the agent's statement that the check should be accepted in partial payment.—Title Guaranty Trust Co. v. Krez, Mo. App., 181 S. W. 1068.
102.- -Undisclosed Principal.- When a contract is made by an agent in his own name, for an undisclosed principal, the other party may maintain a suit thereon against the principal when discovered, unless it is clearly manifest that an exclusive credit was given to the agent, and both parties intended that no resort should be had against the principal. -Anchor Warehouse Co. v. Mead, Mo. App., 181 S. W. 1057.
103. Process—Void Service.- Where a resident of another state was served with summons while in the state only to attend court as a witness, such service is void.—State v. District Court of Second Judicial Dist. in and for Silver Bow County, Mont., 154 Pac. 200.
104. Railroads—Last Clear Chance.—Where the engineer and fireman did everything possible to stop the train after discovering the presence of the infant on the tracks, no recovery could be had against the railroad company on the last clear chance doctrine.--McKnight's Adm'r v. Louisville & N. R. Co., Ky., 181 S. W. 947.
105. Records-Registration of Title.-Defendants, interested only in lot described in amend ed application to register title, could not raise the question whether all the lots described in the original application were contiguous, or whether applicant had substantially the same chain of title to all of them.--Schiessle v. Glos, Ill., 111 N. E. 127.
106. Vendor and Purchaser-Notice of Interest.—Where plaintiff who asserted an equitable interest in land, contended that he told defendant of his interest and warned him he was buying a lawsuit, such information is notice of plaintiff's interest.--Bell v. Bell, S. C., 87 S. E. 540.
107.--Rescission.--A purchaser of lots, after making payments of installments for several years without complaint, may not, without notice, rescind, and maintain an action, especially in equity, because improvement of streets and sidewalks, agreed to be done by the vendor, is progressing too slowly.-Brede v. Rosedale Terrace Co., N. Y., 110 N. E. 430.
108. Warehouses Breach of Contract.Where a warehouse company breaches its agreement to insure at full value cotton stored with it, and the cotton is destroyed by fire, the company is liable to the owner for the full value thereof, less legitimate charges.-Farmers' Ginnery & Mfg. Co. v. Thrasher, Ga., 87 S. E. 804.
109. Waters and Water Courses—Injunction.
That waste water from defendant's land flowed without interruption across the land of a third person to reach plaintiff's land, did not deprive plaintiff of his right to enjoin de
endant from flowing such waste water upon his lands.-Ramelli v. Sorgi, Neb., 154 Pac. 73.
110. - Irrigation.--Where an irrigation company for a whole irrigating season unwarrantably refused to deliver water to one who held stock in the company and was entitled to inandate to compel delivery, it was liable in damages for the failure.--Beatty v. Clark Colony Water Co., Cal. App., 153 Pac. 991 (1st Case).
111.Riparian Rights.- A riparian owner on the old bed of a stream held entitled, where he had not been guilty of laches, to a mandatory injunction requiring that a stream diverted by defendant be restored to its proper course.Aubol v. Grand Forks Lumber Co., Minn., 154 N. W. 968.
Central Law Journal.
ST. LOUIS, MO., APRIL 14, 1916.
PARTICIPATION BY GRANTEE IN INTENT
OF GRANTOR TO DEFRAUD HIS CRED.
The scope of the rule that a failing debtor may prefer one creditor to another has elaborate consideration in recent opinion delivered by Third Circuit Court of Appeals in the case of English v. Brown, 229 Fed. 34.
This case shows that a husband was indebted to his wife and was being sued by another creditor for a large amount. About the only property he possessed was some shares of common and preferred stock in a certain corporation. These shares were transferred to her in part payment of her debt with full knowledge by her that this transfer to her, if effectual, would deprive the other creditor of all fruit of any judgment he might obtain in his pending suit.
That this situation may appear more fully, we reproduce the finding of the trial court as follows: "Much of the
advanced by her was received by Brown when he was in failing circumstances and when Mrs. Brown knew he was so situated, and the shares were turned over to Mrs. Brown when he was without means wherewith to meet the claims of the English brothers under the original agreement between himself and them, and when he and his wife both knew that the English brothers were both diligently pressing their rights and that the transfer of the stock would necessarily operate to hinder and delay the collection of the New York judgment held by the English brothers.”
finding, as we understand it, is that although Brown was bona fide indebted to his wife and the consideration paid by her for the stock was adequate, yet her knowledge of her husband's insolvency, of his indebtedness to English brothers, and of his inability to pay the same if she acquired the stock, disclosed the wife's complicity in her husband's fraud and made the transaction void.”
This is hardly a fair summary of the finding, because it fails to take into account the fact when much of the money was loaned, and of the conclusion by the lower court, that the wife lending money "for the purpose of aiding him as well as to obtain a preference, took the shares with full knowledge of the circumstances."
The Appeals Court says the main question is whether the trial "court erred in deciding that the transfer of stock, in view of Brown's insolvency and his wife's knowledge thereof was in fraud of other creditors and therefore invalid.” Though this is narrower than the question decided by the trial court, we yet venture to assert, that it should be answered in the affirmative. even under New Jersey decision, which the Appeals Court was endeavoring to apply, under the facts in this case.
Thus the Appeals Court relies upon Atlantic Refining Co. v. Stokes, 77 N. J. Eq. 119, 75 Atl. 445, which says: “There must be no combination between the preferred creditor and his debtor to hinder, delay or defraud other creditors of the debtor. It is not sufficient for the purpose of setting aside such a conveyance that the object of the grantor was fraudulent; it must be shown that the grantee participated in that intent, or had knowledge of the object of the grantee or of such facts as should have put him on inquiry as to that object."
The New Jersey case then goes on to say that if the conveyance is made to secure or discharge an antecedent debt, there must be more than knowledge by the grantee of
reservation in grantor's favor or in some laid upon the 'fact that the only purpose of other manner combining with him to en- grantee must be to secure his debt. We able him to defeat his creditors. Then the greatly doubt whether it can be thought court goes on to distinguish between a that any wife claiming for an antecedent volunteer paying a present consideration debt would be presumed to be acting only and an existing creditor endeavoring to
for such a purpose.
And this seems the save himself, saying the latter “may know rule in Missouri. Aull v. Gaffin, 136 S. W. the fraudulent purpose of the grantor, but
343. the law sees that he has a purpose of his That the Appeals Court disregarded all own and if he goes no further than it is
of the evidence to show fraud in the necessary to serve that purpose, the law
grantee strongly appears from its saying will not charge him with fraud by reason that English could no more complain than of such knowledge."
Mrs. Brown could have complained had In this case there was a finding that the Brown transferred all of that stock to wife did go further. She advanced to her English. Therein it is seen to disregard husband a large portion of the money while the confidential relations between the parhe was, to her, knowledge, in failing cir- ties, the wife advancing money after notice cumstances, so, presumptively, to secure an
of Brown's situation and the necessary reantecedent debt. Much of the money then
sult of the transfer to her. is to be looked at as a present, and not as an antecedent, debt.
We do not, however, believe that the distinction attempted to be drawn by the NOTES OF IMPORTANT DECISIONS. New Jersey court, and very doubtfully applied by the Appeals Court, is the law in
CARRIERS PRESUMPTION WHERE the majority of American cases. We think, GOODS ARE DELIVERED IN DAMAGED that a grantee should be held to intend CONDITION TO CONSIGNEE.—The rule often that which he knows, or has reasonable has been announced that where goods have ground to believe, will result from his acts,
been delivered to the first of several connectand if this principle should ever be ap
ing carriers in good condition and by the ter
minal carrier in bad condition, there arises plied, it ought to be applied in a case
a presumption against the terminal carrier. of a confidential relation existing between In St. Louis, 1. M. & S. Ry. Co. y. House grantor and grantee as was the case before Oil & Mfg. Co., 183 S. W, 176, decided by Suthe Appeals Court.
preme Court of Arkansas, it was held that
where this presumption was rebutted by the The view that the fraudulent purpose of
terminal carrier, then it arose against the carthe grantor affects even a conveyance for rier next before it, and unless it was rebutted a pre-existing debt, where the creditor takes the preceding carriers were to be held not with knowledge of such purpose, appears
liable. to have been held in Iowa. Flood v. Bell- The court does not go into any reasoning meier, 144 N. W. 579; in Washington, as to this principle but cites therefor two cases Allen v. Kane, 79 Wash. 248, 140 Pac.
-Railway Co. v. Shanley, 36 Tex. Civ. App.
291, 81 S. W. 1014; Connelly V. Illinois C. R. 534; in Michigan, Fasshender v. Donohue,
Co., 133 Mo. App. 310, 113 S. W. 233. Why, 150 N. W. 335; and in North Carolina,
however, should not the rule work from the Sanford Co. v. Eubanks, 152 N. C. 697, initial carrier forward instead of from the 68 S. E. 219.
terminal carrier backward? Thus it was held
in Lyon v. Atlantic C. L. R. Co., 165 N. C. 143, The principle declared in the New Jer
81 S. E. 1, that where proof is made of desey case is also declared in Baldwin v.
livery to any carrier on the route in good La Fayette Land Co., 56 So. 943, decided condition, the burden is on him to show deby Florida Supreme Court, but stress is
livery in the same condition to the next car
The petition for habeas corpus averred that "petitioner was never a fugitive from justice from the state of Georgia to the state of Texas," and, as seen, this was true, and if he could be requisitioned from there it must be on some theory outside of the federal statute.
rier or to the consignee. It has been held that where it was shown that the first carrier received the goods in good condition and they were delivered in bad condition, the final carrier rebutting presumption makes a prima facie case against the first carrier, Packing Co. v. R. Co., 164 Ill. App. 646.
And it has been ruled that where an initial carrier failed to show it delivered freight to its connecting carrier, the terminal carrier could not be held for its loss. Mobile J. & K. C. R. Co. v. Phillips, Miss., 60 So. 572; Texas Cent. R. Co. v. Davies, Tex. Civ. App., 153 S. W. 916.
The Chief Justice reasons that prior to the adoption of the constitution, fugitives from justice were surrendered between the states conformably to what were deemed the controlling principles of comity, and the constitution meant to confer on Congress authority to deal with this subject fully to this extent. But in the statute it only had dealt with it partially. Did the statute intend to cover the entire ground of demand for a fugitive from the justice of a state?
But it has been held that delivery to first carrier in good condition goods remained such when received by each succeeding carrier. Lumber Co. v. B. & O. R. Co., W. Va., 77 S. E. 333. This principle working backward until overcome by proof, tends to sustain the ruling in the Arkansas case.
A part of shipper's proof, where there is loss or damage anywhere, is that he delivered to first carrier in good condition. When the terminal carrier shows itself not at fault, is all presumption gone as to any other carrier? Or is the presumption as to good condition to remain until otherwise shown? This would make it work backward from the terminal carrier and the burden would be on its connecting carrier to acquit itself. If the presumption against the terminal carrier is an arbitrary rule, the initial carrier should first acquit itself.
The Chief Justice said: “When the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power, it must have been intended to leave the subject unprovided for not beyond the pale of all law, but subject to the power
which then controlled state authority—until it was deemed essential by further legislation to govern them exclusively by national authority." He then argues that this must be so, or state authority is greatly paralyzed.
EXTRADITION-REQUISITION FOR FUGITIVE IN STATE TO WHICH HE HAD BEEN REMOVED BY EXTRADITION.—The federal constitution provides that a person charged with treason or felony in one state and fleeing may be demanded from any other state in which he may be found. The extradition statute provides he may be demanded from the state to which he has fled, if there found. In Innes v. Tobin, 36 Sup. Ct. 290, a fugitive from Georgia was demanded from the governor of Texas, he there having been brought by extradition proceedings by the governor of Texas, on the governor of Oregon, to which latter state he had fled from Georgia.
Here it appears that the fugitive was not a fugitive to Texas, to which state he had come involuntarily and, certainly, he was beyond the reach of any proceeding under the
This reasoning is all upon a failure, more by inadvertence than by intention in Congress, to make a statute as broad as it should have been made. Certainly, if Congress was providing for extradition of fugitives there could be no reason for not going the full length of of the power vested in it. It is not the same as if no statute was passed at all, and the subject is one that should be disposed of completely, if treated at all. If paralysis from partial treatment was to result that would be congressional inefficiency and not the product of congressional design. It would seem, at all events, that the constitution intended, that the subject was to be cared for by federal legislation and if it was not exhaustive, it ought to have been.
FRAUDS — SUFFICIENCY OF MEMORANDUM BY BROKER IN A SALE TRANSACTION.-In Dinubo Farmers Union Pkg. Co. v. J. M. Anderson G. Co., 182 S. W. 1063, decided by St. Louis Court of Appeals, a brokerage firm at point of delivery, delivered
age Co. * *
To J. M. Anderson Grocer Co. | EXEMPLARY DAMAGES—A HERET* * For account of Tooker O'Brien & Co.
ICAL AND ILL-DEFINED DOC(Articles of merchandise) Accepted...........
Seller." It was contended, only, that this memorandum was insufficient because “not signed by The general doctrine that exemplary defendant or some agent by it thereto lawfully damages may be assessed, at common law, authorized."
in appropriate cases, is now expressly recThe Court of Appeals first ruled that “in the first instance a broker may be regarded as the
ognized by English courts and by about agent of one party only, * * * but when acting three-fourths of the American courts of as a broker he strikes a bargain between the last resort. In England, a well known case? parties and the contract of sale is definitely in the Court of Common Pleas, a century settled, he becomes the agent of both parties
and a half ago, expressly sanctions the for the purpose of executing the memorandum of the transaction.” This principle is said to
award of exemplary damages; and an imbe "implied from the necessity of the case, be
portant American court,about a century cause without it he could not complete a con- ago, apparently as a matter of course, rectract of sale so as to make it legally binding ognized the propriety of such damages. on the parties."
Yet, probably there is no warrant for saying This point being passed, it became easy to
that, prior to 1763, there was a general rule, deduce the conclusion that the printed name at the top of the memorandum sufficed for the
positively and expressly stated by courts, signature required by the statute of frauds. In
that, under certain circumstances, the jury deed, it may well be doubted whether there re- might assess exemplary damages. Probmained any question referable to the statute
ably the general rule resulted from the exof frauds.
treme reluctance, and often flat refusal, of As to being a sufficient signature, Judge Nor
early courts to interfere with the verdicts toni, speaking for the court, said: "It
of juries in tort cases when urged to set is true
formal signature appears to be affixed thereto (to the memorandum),
aside such verdicts on the ground that the but this is unimportant in view of the damages awarded were excessive. fact that the name of the broker * * is
Some of the decisions cited in American printed on the heading of the memorandum and defendant's name is clearly written by
cases as being authorities for the imposition the broker therein in typewriting as the pur- of exemplary damages are not very strong chaser. The signature required by the statute supports to the contention for which they is not confined to the actual subscription of his
are cited as standing; for instance, one name by the party to be charged, as is said by
very important and frequently cited cases Mr. Benjamin on Sales (6th Ed.) § 256. * * It sufficiently appears that defendant's name
quotes Lord Chief Baron Pollock as saying, was written into the memorandum as the pur- in Doe v. Filliter, in 1844, that, in actions chaser by the brokerage company, who, ac- for malicious injuries, juries had always cording to the evidence, at that stage of the
been allowed to give what are called vindicnegotiations, had, in virtue of its function as
tive damages. Lord Pollock did not use the broker, become the agent of the defendant as well as of defendant."
words “always," and the entire indirect This case demonstrates that decision, of quotation is of a statement which was purewhich much is cited, will apply the statute of ly dictum in an ejectment suit; though the frauds only where parties are still standing
same distinguished judge, fourteen years at arm's length and when there are intervening circumstances showing this no longer to be so,
(1) This article takes no notice of exemplary as in this case the dual agency of the broker
damages allowed in some states by statute, age firm, there is reason for applying (2) Huckle v. Money, (1763) 2 Wils. 205.