« السابقةمتابعة »
of evidence and not a limitation, and is not subject to
[Decided April 21, 1884.]
son, 100 U. S. 617; Walton v. Crowley, 3 Blatchf. 440;
UNITED STATES CIRCUIT AND DISTRICT book debts, moneys in the bank, and all other property
not being on the premises, the defendant covenanting
INTERNAL REVENUE-GRAIN-BAGS-RE-ENTRY FREE OF DUTY-POWERS OF SECRETARY.-The customs and revenue laws provide that "grain bags, the manufacture of the United States, when exported filled with American products, may be returned to the United States free of duty under such rules and regulations as shall be prescribed by the secretary of the treasury." Grain bags manufactured in this country from imported materials were exported full of California wheat. The exporter demanded and received, according to law, out of the public treasury, the draw-back due him on account of the duty formerly collected upon the materials of which the bags were made. Upon the return of the grain bags, held, that they were entitled to pass free of duty. The power of the secretary to prescribe rules and regulations does not authorize him to impose a duty not provided for by Congress in repayment of the drawback. Morrill v. Jones, 106 U. S. 466; 1 Sup. Ct. Rep. 423; Merritt v. Welsh, 104 U. S. 702; Balfour v. Sullivan, 8 Sawy. 648; 17 Fed. Rep. 231. Cir. Ct., Dist. Cal. March 10, 1884. Balfour v. Sullivan. Opinion by Sawyer, J.
REMOVAL OF CAUSE-FEDERAL LAW INVOLVED-SEPARATE CONTROVERSY.-(1) A case may be removed to the Federal courts whenever rights of the parties are alleged to depend in any way upon an act of Congress, even though the act is only set up by way of defense, and though other questions not of a Federal character enter into the controversy. If a Federal law is to any extent an ingredient of the controversy by way of claim or defense, the condi ion exists upon which the right of removal depends, and he right is not impaired because other questions are involved which are not of a Federal character. Cruikshank v. Fourth Nat. Bank, 16 Fed Rep. 888; Mayor v. Cooper, 6 Wall. 247-252; Railroad Co. v. Mississippi, 102 U. S. 135. The motion to remand is denied. (2) The defendant, the Baltimore and Ohio Telegraph Company, has also removed the suit upon its separate petition, alleging that there is a controversy which is wholly between it and the camplainant citizens of different States. Within the recent decision of this court in Boyd v. Gill, 19 Fed. Rep. 145, such a separate controversy is not disclosed by the pleadings. See also Peterson v. Chapman, 13 Blatchf. 395. Cir. Ct., S. D. N. Y. March 6, 1884. Western Union Tel. Co. v. National Tel. Co. Opinion by Wallace, J.
TRADEMARK-PASSES WITH TRANSFER OF BUSINESS. -There is no reason why a trade-mark cannot be couveyed with the property with which it is associated. As an abstract right, apart from the article manufactured, a trade-mark cannot be sold, the reason being that such transfer would be productive of fraud upon the public. In this respect it differs from a patent or a copyright. But in connection with the article produced, it may be bought and sold like other property. It constitutes a part of partnership assets, and is properly sold with the firm property. Browne Trade M., §§ 360, 361; Hall v. Barrows, 10 Jur. (N. S.) 55; Ainsworth v. Walmsley, 35 Law J. Ch. 352; Kidd v. John
*19 Fed. Rep.
SHIP AND SHIPPING--PILOT-WHEN NOT ENTITLED TO SALVAGE-OREGON PILOT ACT, 1882.-The libellant in a smooth sea and calm weather boarded the Bryant in a thick fog while she lay aground at low tide on the outer edge of the middle sand of the Columbia river, and at the next flood sailed her over into deep water in the south channel, and after drifting out to sea in the night brought her into port the next morning. Held, that the service of the libellant did not involve any "extraordinary danger or risk," and that he was only entitled to a pilot's compensation therefor. Under the Oregon pilot act of 1882 (Sess. Laws, 15) a pilot is bound to render aid to a vessel" in stress of weather or in case of disaster," and he is not entitled to salvage for such service unless he is thereby involved in "extraordinary danger and risk." The drift of American legislation and decision is against the policy of allowing pilots to act as salvors on their own pilot grounds. It has been thought or found that the temptation to become a salvor might induce a pilot to make or allow an occasion for such service that he might profit by the distress of the ship which he is bound to navigate. Hobart v. Drogan, 10 Pet. 120; The Wave, 2 Paine, 136; 2 Pars. Ship. & Adm. 271. A pilot is a public officer whose duties and compensation are prescribed by law; and when acting in the line of his duty he is not entitled to any other compensation. As was said by Mr. Justice Washington in the case of Le Tigre, 3 Wash. C. C. 571, while considering the question whether official duty could be compensated by salvage: "Of this class of cases is that of the pilot who safely conducts into port a vessel in distress at sea. He acts in the performance of an ordinary duty imposed upon him by the law and the nature of his employment, and he is therefore not entitled to salvage, unless in a case where he goes beyond the ordinary duties attached to his employment." Dist. Ct., Dist. Oreg. March, 1884. The C. D. Bryant. Opinion by Deady, J.
INJUNCTION-VIOLATION-CONTEMPT.-To sustain a motion for contempt on account of the violation of an injunction issued to restrain the infringement of a patent, it must appear clearly and indisputably that the infringement continues. Walk. Pat. 481: Birdsall v. Hagerstown Manuf. Co., 2 Ban. & A. 519; Liddle v. Cory, 7 Blatchf. 1; Welling v. Trimming Co., 2 Ban. & A. 1; Bate Refrig. Co. v. Eastman, 11 Fed. Rep. 902. Cir. Ct., D. R. I., Feb. 9, 1884. Smith v. Halkyard. Opinion by Colt, J.
BANKRUPTCY-FRAUDULENT CONVEYANCES-JU DGMENT PRIORITIES ASSIGNEE.—(1) A judgment recov
ered, defendant having meantime made a fraudulent conveyance of his property, is deemed to have attached at the date of its rendition as if the fraudulent conveyance had never been made. (2) Under the statutes of Indiana a judgment against a fraudulent grantor is made a lien, and accordingly he who obtains the first judgment is first in diligence, and except as against innocent purchasers of the fraudulent grantee, first in right. See Hardy v. Mitchell, 67 Ind. 485; Hanna v. Aebker, 84 id. 411. (3) But this rule is subject to the priorities, respectively, of partnership and individual creditors in and to partnership and individual property. Hardy v. Mitchell, supra; Weyer v. Thornburgh, 15 Ind. 125; Dean v. Phillips, 17 id. 406; Bond v. Nave, 62 id. 505; Nat. Bank v. Locke, 89 id. 428; Freem. Judgm., §§ 356, 357; Glidewell v. Spaugh, 26 Ind. 319; Jones v. Rhoads, 74 id. 510; Huff-| man v. Copeland, 86 id. 224, and cases cited. (4) But however this may be, I think it quite clear that the doctrine proposed cannot apply when the fraudulent conveyance has been annulled at the instance of the assignee in bankruptcy of the fraudulent grantor. By express provision of the bankrupt law, all property of the bankrupt, conveyed in fraud of his creditors is, by virtue of the adjudication, and by the appointment of an assignee, vested in the assignee, to whom also the power and authority are given "to manage, dispose of, sue for, and recover all his property or estate, real or personal, debts or effects, and to defend all suits at law or in equity pending against the bankrupt." 14 St. 525. Accordingly it has been held, and is well settled, that after the appointment of an assignee in bankruptcy, an action by a creditor to set aside a fraudulent conveyance of the bankrupt or to reach, in any way, property fraudulently transferred, cannot be maintained, and that the remedy must be had in a suit or action by or in the name of the assignee. Glenny v. Langdon, 98 U. S. 20; Trimble v. Woodhead, 102 id. 647; Moyer v. Dewey,103 id.301. Dist. Ct., D. Ind., 1884. Matter of Lowe. Opinion by Woods, J.
agreement to which the surety has subscribed, which is made without the surety's knowledge or consent, and which may prejudice him, or which may amount to a substitution of a new agreement for the one he has subscribed, will discharge the surety, upon the principle of the maxim non hæc in fœdera veni. And of this case it may be observed that in its facts and upon the law it is highly instructive as bearing upon the kindred question involved in the case at bar. (2) A statute took effect March 3d, changing the rate of duty upon spirituous liquors from 70 cents to 90 cents. An assessment was made for a period previous to and including March 3d at 70 cents. Held, that though the statute was in force during the whole of March 3d, so that the rate for that day should have been 90 cents, the tax-payer could not on that account dispute the validity of the assessment. Arnold v. United States, 9 Cranch, 104; In re Welman, 20 Vt. 653; In re Howes, 21 id. 619. Cir. Ct., E. D. Wis., Feb. 5,1884. United States v. O'Neill. Opinion by Dyer, J.
IOWA SUPREME COURT ABSTRACT.
[Decided April 24, 1884.]
WHEN STATUTE TAKES EFFECT-ASSESSMENT.--When after a bond had been signed by two sureties with the understanding between them and the obligor and obligee that it was to be signed by a third surety whose name was written in the bond, the name of the third surety was altered in the body of the instrument, with the knowledge of the obligee, by the substitution of a different surety, who then signed the bond, held that the two sureties were discharged. There is a class of cases in which it is held that a bond, perfect on its face, apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it on a condition that it should not be delivered unless it was executed by other persons who did not execute it, where it appears that the obligee had no notice of such condition, and there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice. Dair v. United States, 16 Wall. 1; Tidball v. Hailey, 48 Cal. 610; Stateing Sturges v. Stetson, 1 Biss. 246; Fosdick v. Sturges, v. Peck, 58 Me. 284; Cutler v. Roberts, 7 Neb. 4; Nash id. 255; Mann v. Cooke, 20 Conn. 188; Fisk v. Chicago, v. Fugate, 24 Grat. 202; Millett v. Parker, 2 Metc. (Ky.; R. I. & P. R. Co., 53 Barb. 513; O'Brien v. Same, id. 608; State ex rel. v. Pepper, 31 Ind. 76. Then there 568; Neuse River Nav. Co. v. Comrs., 7 Jones Law, are other cases in which it has been decided that if a 275. See also Osgood v. King, 42 Iowa, 478. Oliphant bond be written as if to be executed by two or three v. Woodbury Coal and Mining Co. Opinion by Adams, J. or more sureties, and it is in fact executed by only one, and is then delivered to the obligee, it is valid and effectual against that one. Cutter v. Whittemore, 10 Mass. 442. See also Russell v. Freer, 56 N. Y. 67. In Smith v. United States, 2 Wall. 219, Mr. Justice Clifford states the rule to be that any variation in the
CORPORATION -OFFICERS SELLING STOCK BELOW PAR-FRAUD ON STOCKHOLDERS.-The officers of a corporation cannot properly sell the stock for less than the par value. To enable a stockholder to recover from a corporation for the depreciation of his stock by mismanagement, he must show that the injury was peculiar to himself alone, as apart from the other stockholders, and an instruction to a jury to this effect is correct. In Green's Brice's Ultra Vires, 143, note, it is said: "The sale of stock in a corporation by the directors at a less rate than the price fixed in the charter is a fraud upon the law and the stockholders," cit
[Decided April 23, 1884.]
MASTER AND SERVANT-"USUAL RISKS "-KNOWL EDGE OF SERVANT-MACHINERY. -An employee, by remaining in the service of his employer without objection, assumes the risk of such dangers as are occas
ioned by defects in the machinery, about which he is employed, of which he has knowledge, or by the exercise of reasonable diligence might gain knowledge, Money v. Lower Vein Coal Co.,55 Iowa, 671; S. C., 8 N. W. Rep. 652; Way v. Railroad Co., 40 Iowa, 341; Muldowney v. Railroad Co., 39 id. 615; Kroy v. Railroad Co., 32 id. 357; Greenleaf v. Railroad Co., 29 id. 14. But when the employee is not engaged to work with the machinery he is not bound by this rule. An employer is bound to provide machinery suitable and reasonably safe for the business, and to operate it in a reasonably safe and careful manner, and the existence of a defect imposes a duty of greater care and diligence. Moran v. Harris. Opinion by Reed, J. [Decided April 24, 1884.]
EMPT PROPERTY - FORFEITURE
TO EXBAILEE'S USE OF PROPERTY.—In this case there was evidence showing that the property was exempt from execution. The plaintiff contends that a livery-stable keeper's lien cannot attach upon such property. It may be conceded that the lien can be enforced only by execution. But the statute which gives the lien does not except exempt property, but expressly gives the lien upon all property coming into the livery-stable keeper's hands. We do not wish to be understood as holding that the rule would be different if the right to a lien existed simply by common law. An innkeeper's lien exists by common law, and it was held in Swan v. Bournes, 47 Iowa, 502, that it attached upon exempt property. But the plaintiff contends that even if the defendant had a lien he lost it by claiming a lien for a general balance of account and for indebtedness for which he had no lien. The balance claimed was $316.22, which included something for keeping other horses, and something, we think, for keeping the horse in question for which he had no lien. What the rule would be if the plaintiff had tendered the amount for which the defendant had a lien, and the defendant had refused to surrender the horse, we need not determine. It seems to have been held that where a person who has a lien upon property sets up a claim to it distinct from and independent of his lien, he will be deemed to have waived his lien. Perhaps too he would be deemed to have waived or forfeited it by wrongfully claiming a lien for a larger indebtedness than that for which he had a lien, if he failed to disclose the true amount; and the same could not be presumed to be within the knowledge of the debtor so that he could tender the true amount for which the lien was held. Thatcher v. Harlan, 2 Houst. (Del.) 178. See also in this connection, Winter v. Coit, 7 N. Y. 288; Hanna v. Phelps, 7 Ind. 23; Judah v. Kemp, 2 Johns. Cas. 411; Holbrook v. Wright, 24 Wend. 176; Mexal v. Dearborn, 12 Gray, 326. But we see nothing in the case at bar to hinder the plaintiff from discovering the true amount for which the defendant had a lien so as to enable him to make a tender of that amount if he desired. Where a bailee treats the thing bailed as his own, he cannot afterward claim a lien upon the same thing, but he may always use it so far as is necessary to for its preservation. This is implied in the very contract of bailment. But in the case at bar there was evidence showing an express direction to that effect. Munson v. Porter. Opinion by Adams, J. [Decided April 25, 1884.]
STATUTE OF FRAUDS-CONTRACT VOID-PAYMENT MADE ON MAY BE RECOVERED.-Where the plaintiff has received money from certain third parties, and pays the same over to the defendant on a parol con
tract for the purchase of land, such payment is made upon a void contract, and the plaintiff can recover the same of the defendant, even though the defendant does not refuse to go on with the contract on his part; nor can the defendant urge in defense of an action for such money that the plaintiff obtained it through fraud from the third parties. Brandeis v. Newstadtl, 13 Wis. 142; Thomas v. Sowards, 25 Wis. 631; Hooker v. Knab, 26 id. 511; N. W. U. P. Co. v. Shaw, 37 id. 655; Clark v. Davidson, 53 id. 317; 10 N. W. Rep. 384. Tucker v. Grove. Opinion by Taylor, J. [Decided April 8, 1884.]
MUNICIPAL CORPORATION-DEFECTIVE BRIDGE-NOTICE OF CLAIM-COMPLAINT MUST ALLEGE NOTICE.-In an action against a town for damages from a defective bridge in a public highway, a complaint which does not allege that the notice provided by section 1339, Revised Statutes, 1878, was given to the supervisors, fails to state a cause of action against the town, and a demurrer to it for that reason will be sustained. In order that the plaintiff may recover damages, he inust also allege in his complaint that a claim for damages was filed with the town clerk, as provided by section 824 Revised Statutes 1878. Susenguth v. Town of Rantoul, 48 Wis. 334; 4 N. W. Rep. 328; Plum v. Fond du Lac, 51 Wis. 393; 8 N. W. Rep. 283; Benware v. Town of Pine Valley, 53 Wis. 527; 10 N. W. Rep. 695. These cases are conclusive as to the insufficiency of the complaint. Wentwort v. Town of Summit. Opinion by Taylor, J.
[Decided April 8, 1884.]
MINNESOTA SUPREME COURT ABSTRACT.
GIFT-FIDUCIARY RELATION - UNDUE INFLUENCE PRESUMED-ONUS ON DONEE TO REBUT-EQUITABLE JURISDICTION.-Upon grounds of public policy, or as it is otherwise expressed, of public utility, equity exercises a salutary jurisdiction in setting aside donations of property made to a donee who stands in some
WISCONSIN SUPREME COURT ABSTRACT. confidential or fiduciary relation to the donor. The
TENDER-MUST BE UNCONDITIONAL.-An offer of payment, to constitute a tender, must be understood as a tender, absolute and unconditional; and to treat an offer of payment conditional upon a discharge from the whole debt, as a tender, is a fatal error. 2 Greenl. Ev., § 602, et seq. The alleged tender in Hunter v. Warner, 1 Wis. 141, was, Warner said he had the money, and it should be paid when due; that he was ready to pay," etc. It was held no valid tender. "An offer with the understanding that it shall be accepted for the whole claim or the disputed claim is not a good tender in law." Latham v. Hartford, 27 Kan. 249. "A tender is not good accompanied with a demand for a discharge of the whole debt." Richardson v. Boston C. Laboratory, 9 Metc. 42. "I showed him $500, and told him he could have it for his claim." This was held conditional, and a mere offer of payment, and unavailing as a tender. Tompkins v. Batie, 11 Neb. 147; 7 N. W. Rep. 747. "An offer to pay to satisfy the whole debt," was held no tender in law, in Thomas v. Evaus, 10 East, 101; and to the same effect are Glasscott v. Day, 5 Esp. 48; Lancashire v. Kellingworth, 2 Salk. 623; Clark v. Mayor, etc., 1 Keyes, 9; Thayer v. Brackett, 12 Mass. 450. Elderkin v. Fellows. Opinion by Orton, J. [See 5 Am. Rep. 292; 23 id. 668. -ED.] [Decided April 8, 1884.]
tial relation of parent and child, and the fiduciary relation of guardian and ward, are among those in which such relief is frequently granted. Equity looks with special jealously upon donations from a child to a parent when made recently after the child comes of age, or while he is under the constant and immediate influence of the parent (as for instance, residing with him), or while his property is in the parent's possession or control. Wright v. Vanderplank, 8 De Gex, M. & G. 133; Baker v. Bradley, 7 id. 597; Bergen v. Udall, 31 Barb. 9; Taylor v. Taylor, 8 How. 183; Pom. Eq. Jur., § 961. Donations from a ward to his guardian are regarded with still greater jealousy where the circumstances are such as to give the guardian an ascendency over the ward, for here the natural and mutual ties and obligations between parent and child are wanting, and the position of the guardian is fiduciary. Hylton v. Hylton, 2 Ves. 547; Hatch v. Hatch, 9 id. 292, and note; Fish v. Miller, Hoff. Ch. 267; Pom. Eq. Jur., § 962. Whether the donation be from a child to a parent or by a ward to his guardian, if the donor is so placed as to be subject to the control or influence of the donee, the onus is on the parent or guardian (as the case may be) to show that "the transaction is righteous." Gibson v. Jeyes, 6 Ves. 266; Hoghton v. Hoghton, 15 Beav. 299. In such cases the undue influence is, on grounds of public policy, prima facie presumed from the peculiar relations subsisting between the parties. Archer v. Hudson, 7 Beav. 551; Hylton v. Hylton, supra; Hatch v. Hatch, supra; Kerr Fraud & M. 178, 179; Williams v. Powell, 1 Ired. Eq. 460; Chambers v. Crabbe, 34 Beav. 457; Garvin's Admr. v. Williams, 44 Mo. 465; Todd v. Grove, 33 Md. 188; Berdoe v. Dawson, 34 Beav. 603; Huguenin v. Baseley, 2 Lead. Cas. Eq. (556) and notes; Pom. Eq. Jur., $$ 961, 962. Substantially the same rules are applied to the case of an ex-guardian, where, notwithstanding the termination of the formal fiduciary relation between him and his ward, he still retains his dominion in fact, and his position of influence as respects the ward or his property. This is especially true where the donatious called in question are made while (even after his majority) the ward continues to reside with the exguardian, or the ex-guardian continues to retain possession or control of the ward's property. Hylton v. Hylton, supra; Hatch v. Hatch, supra; Pierse v. Waring, 1 P. Wms. 121, note; 1 Story Eq. Jur., § 317; Pom. Eq. Jur., § 961. In all these cases where the law infers from the relations of the parties the probability of undue influence on the part of the party having dominion or ascendency over another, it requires that the influence in fact exercised shall be exerted for the benefit of the person subject to it, and not for the benefit of the party possessing it, otherwise the donations will be promptly set aside. Hoghton v. Hoghton, supra; Cook v. Lamotte, 15 Beav. 234. As remarked by Lord Eldon, the crucial question in cases of this kind "is not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced; whether all that care and prudence was placed around her, as against those who advised her which from their situation and relation with respect to her they were bound to exert in her behalf." Huguenin v. Baseley, 14 Ves. 273; Hoghton v. Hoghton, supra. Ashton v. Thompson. Opinion by Berry, J. [Decided April 9, 1884.]
fendant, upon an allegation in the petition that he re-
PARTIES-POINT CONTRACT.-All the joint obligees of a bond are necessary parties plaintiff in an action for its breach; one of them cannot be made a
*Appearing in 78 Missouri Reports.
COVENANT-AGAINST INCUMBRANCES-DAMAGES FOR
DEED OF TRUST ON PERSONALTY-VOID AS AGAINST CREDITORS.-A deed of trust to secure a debt described the property as "all and singular the farming implements and tools and live dairy cattle now on the grantor's farm, together with all their increase or substitutes therefor during the lien of this deed, to the value at any time of $4,000," and again as "a constant and continuous stock of farming implements, tools, and live dairy cattle and their increase, of a valuation of at least $4,000." It also stipulated that the grantor should at all times keep on his farm property of the kind described, "worth on peremptory sale under the provisions hereof at least $4,000," or as stated in another place, "at any time in value equal to an appraisement of $4,000." No method was provided for having an appraisement made, and it did not appear but what the implements, tools and cattle on the farm exceeded $4,000 in value. Held, that as against other creditors of the grantor the deed was void, (1) because by the use of the word "substitutes" it impliedly gave the grantor authority to sell and dispose of the cattle in the ordinary course of business; (2) because of indefiniteness in the description of the property. White v. Graves, 68 Mo. 218. Goddard v. Jones. Opinion by Norton, J.
RECENT ENGLISH DECISIONS.
MISSOURI SUPREME COURT ABSTRACT. might be living together at the time of her death to
such sister for life, with remainder to the persons to whom such effects were bequeathed by her will; and she confirmed her said will in all other respects. In co-de-September, 1883 the testatrix died, leaving (inter alia) New Three per cent Annuities, Great Northern Railway Consolidated and Preference stocks, and Chilian
WILL" MONEYS"-WHAT INCLUDED IN TERM.The word "moneys" in a will is a flexible term, having a more or less extended meaning, according to the facts of the case and the terms of the will. The court is bound however to put upon the word its ordinary and literal meading unless the context shows that a larger meaning should be put upon it. In 1874 a testatrix made her will appointing executors, and directing payment of her debts and other expenses, and giving "all her moneys" to her brothers and sisters in equal shares. She then proceeded specifically and minutely to dispose of her furniture and trinkets, without however expressly referring to any stocks or investments, or residuary real or personal estate. By a codicil made in August, 1883, she bequeathed all her furniture and effects in the house in which she and a named sister
Government Bonds (payable to bearer) as well as cash in the house, and debts due to her, and furniture and trinkets, including some small articles not specifically bequeathed. Held, on originating summons, that although the gift of "all my moneys" could not be treated as a residuary bequest, yet that under the circumstances such gift in fact passed all the items, other than furniture and trinkets, of which the testatrix died possessed. Lowe v. Thomas, 5 De G. M. & G. 315, distinguished. High Ct. Just., Chan. Div., March 5, 1884. Townley v. Townley. Opinion by Pearson, J. (See 17 Am. Rep. 422.-ED.)
TRUSTEE-DELEGATION OF AUTHORITY EMPLOYMENT OF BROKER-USUAL COURSE OF BUSINESS.—(1) A trustee cannot delegate to others the execution of his trust, but he may in the administration of the trust fund avail himself of the agency of such persons as bankers and brokers in the regular course of business, and will not be liable for any loss which may be occasioned to the trust fund thereby, if he has acted with the reasonable care and prudence with which a man would act in his own business, and has not been guilty of any negligence or default. (2) A trustee, at the request of the cestui que trust, employed a broker to purchase certain securities authorized by the trust. The broker presented a bought-note to the trustee, and on his representation that the purchase had been made subject to the rules of the London Stock Ex
change, and that the money was payable the next day, which was the account day, the trustee gave him a check for the money. He had not in fact purchased the securities, and he misappropriated the money to his own use, and became insolvent. Held (affirming the judgment of the court below, Lord Fitzgerald dubitante) that there being nothing in the form of the bought-note to excite any suspicion in an ordinary prudent man of business, and the whole transaction having been carried out in the usual course of business, the trustee was not liable for the loss incurred. Ex parte Belchier, Amb. 218, approved. House of Lords, Nov. 26, 1883. Spright v. Gaunt. Opinions by Selbourne, Lord Chan., Blackburn and Fitzgerald, JJ. (50 L. T. Rep. [N. S.] 330.) [See 20 Eng. Rep. 523.-ED.]
WILL-ESTATE ,, -DIRECTION TO CARRY ON BUSINESS. (1) A testator made no express devise of his real estate, but gave a legacy of 500l. "to be paid out of his estate," and after giving other legacies, directed that his executors might realize such part of his estate as they thought right and in their judgment, and pay the afore-named legacies. The personal estate was sufficient to pay the legacies. Held, that "estate" meant personal estate only. (2) A testator at the time of his death carried on business as a mechanical engineer on certain freehold laud of his own, a part of the machinery used in the business being fixtures attached to the land. By his will the testator made no express devise of the freehold land, but directed his executors to carry on the business until M. (heir-at-law) attained the age of thirty. Subject to payment of the funeral and testamentary expenses, debts, and legacies, the general personal estate of the testator was undisposed of, but the will directed that the executors might realize such part of the estate as they might think right to pay the legacies. Held, that the business was to be carried on by the use and employment in it of the same property, whether real or personal, which was employed therein at the testator's death, and that the executors were entitled to the use of all such property without paying any rent to the heir in respect of the land and fixtures; but that there was no gift of the real estate by implication to the prejudice of the heir in favor of the next of kin. Held also, that the business ought only to be carried on so long as was neces
sary for payment of the legacies not otherwise sufficiently provided for; that when the legacies were paid or provided for the direction as to carrying on the business till the heir was thirty was inoperative, and that if there were any surplus profits they must be divided between the heir and next of kin in proportion to the respective values of the real and personal estate employed in the business whilst the profits were being made. Ct. of App., Feb. 4, 1884. Nixon v. Cameron. Opinion by Selbourne, Lord Chan. (50 L. T. Rep. [N. S.] 339.
MASTER AND SERVANT-NEGLIGENCE-LIABILITY OF MASTER-SCOPE OF EMPLOYMENT-LORD CAMPBELL'S ACT (9 & 10 VICT., CH. 93).—M, was a cloak-room clerk in defendants' employ, and assisted at the parcels office; he "used to take up parcels for passengers from the cloak-room to the train, when there was no porter there, and that was a regular thing for him to do." A passenger had asked him to take a parcel to the train, which he did, and as he was running back, he rau against another porter, who in turn came against the ticket-collector, and the ticket-collector upset the plaintiff's wife, causing injuries which resulted in her death. Field, J., nonsuited the plaintiff, holding that there was no evidence to go to the jury of any negligence on the part of the defendants or their servants, and that there was no evidence, that at the time of the accident, M. was acting within the scope of his employment. It was agreed at the trial, that if the court should be of opinion that the nonsuit was wrong, judgment should be entered for the plaintiff for 2361. and costs. Held, that there was evidence to go to the jury that at the time of the accident M. was acting within the scope of his employment, that the nonsuit was wrong, and that judgment should be entered for the plaintiff as agreed. High Ct. Just. Q. B. Div., March 6, 1884. Milner v. Great Northern Railway Co. Opinions by Lopes, Stephen and Cave, JJ. (50 L. T. Rep. [N. S.] 367.)
NEGOTIABLE INSTRUMENT-PRODUCTION OF NOTE AT TRIAL. A person who seeks to recover upon a negotiable instrument must be prepared to produce it, and have it before the court on the trial, as controlling it, unless the instrument is lost, and the owner brings himself within the exemption afforded by equity or the statute. It is not enough to show that the note is in the possession of or claimed by some one else. Sup. Ct. Mich., Apr. 30, 1884. McKinney v. Hamilton. Opinion by Campbell, J. (19 N. W. R. 263.)
NEGOTIABLE INSTRUMENT-TRANSFER TO ONE PARTNER--PAYMENT TO ANOTHER.-- When a note payable to a partnership firm is indorsed by the firm in blank and transferred to one of the partners before maturity, the maker, if he has notice of the transfer, is not discharged of his liability to the transferee by payment of the amount of the note to another member of the firm. Cir. Ct., W. D. Texas, 1884. Stevenson v. Woodhull. Opinion by Turner, J. (19 Fed. Rep. 575.)
THE AMERICAN BAR ASSOCIATION,
HE Seventh. Annual Meeting of the Association will be held at Saratoga Springs, on Wednesday, Thursday and Friday, August 20, 21, and 22, 1884. The sessions will be held at 10 o'clock A. M. and 7:30 P. M. on Wednesday and Thursday, and at 10 o'clock A. M. on Friday, at Putnam's Music Hall, corner of Broadway and Phila street, nearly opposite the United States Hotel.
Wednesday morning.-The President's Address, by Cortlandt Parker, of Newark, N. J.; Nomination and