« السابقةمتابعة »
Dill. 340; Good v. Norley, 28 Iowa, 188. This case was name, if there was either a previous parol authority or overruled in Boyles v. Boyles, 37 id. 592; but in our a subsequent parol adoption of the act. 3 Kent Com. view the opinion in 28 id. is the better law. Holmes 48; Skinner v. Dayton, 19 Johns. 513; Cady v. Shepv. Beal, 9 Cush. 223; Norton v. Norton, 5 id. 524; herd, 11 Pick. 405, 406; Bond v. Aitkin, 6 Watts & S. Arnold v. Sabin, 1 id. 525; Howard v. Moore, 2 Mich. 165. And a deed executed by a partner in the firm 226; Coon v. Fry, 6 id. 506. Seward v. Didier. Opinion
name is effectual to convey all his interest. Clement by Maxwell, J.
v. Brush, 3 Johns. Cas. 180; McBride v. Hagan, 1 Wend. [Decided May 21, 1884.]
326; Nupnely v. Doherty, 1 Yerg. 26; Waugh v. CarLIMITATIONS-PROMISE TO PAY - REVIVES
riger, id. 31; Morris v. Spence, 4 Harr. (Del.) 428;
-RIGHT TO OPEN AND CLOSE.-(1) A writing sigued by the party
Jackson v. Stanford, 19 Ga. 15. Therefore had each as follows: "I am sorry that you have had to pay the partner executed deeds in the firm name, without aunotes of Frank Pillond and myself, upon which you
thority from his copartners, to purchasers of lots, the were surety for us. I cannot at this time pay you the purchasers would have acquired the title of all the money, but propose to pay you my share, which I am
partners. The same result would follow from the extold is about $413. I hope to be able to pay you soon,
press authority from such partner, conferred upon but will let you know in a few days what I can do," the presideut and secretary, to execute deeds in the held to take the debt out of the statute of limitations.
name of the copartnership. That this authority was (2) A partial payment, acknowledgment of the debt, given, not only in the articles of association, but by a or promise to pay, made after the debt is barred, will
separate irrevocable power of attorney by each stockrevive it. (3) A defendant is not entitled to the open
holder and wife, is clearly established. Batty v. Adams ing and closing on a trial, unless he by his answer, ad
Co. Opinion by Maxwell, J. mits the allegations of the plaintiff's petition, and re- [Decided May 29, 1884.] lies entirely upon an affirmative defense. Rolfe v. Pillond. Opinion by Reese, J. [(1) See 35 Am. Rep. 576; 30 Eng. Rep. 207. (2) 22 Eng. Rep. 739.-ED.]
MISSOURI SUPREME COURT ABSTRACT.* [Decided May 28, 1884.] JOINT-STOCK COMPANY - ORGANIZATION TO SELL
ECCLESIASTICAL LAW-DECISIONS OF CHURCH CONTOWN LOTS-DEED.-Certain owners in severalty of a
CLUSIVE--LIBEL--CONSTITUTIONAL LAW--PUBLICATION tract of land laid the same off into & town-site, and
OF LIBEL. --(1) It is the established doctrine that in organized a company to sell the lots. There was no
matters purely ecclesiastical, not affecting property conveyance to the company of the interests of the sev
rights, the decisions of the proper church judicatories eral owners of the land, but each shareholder received
made in good faith are conclusive upon civil tribunals. his quota of stock, and the articles of the association
The provision of the Constitution ($ 10, art. 11) that the provided that deeds for lots sold were to be executed
courts of justice shall be open to every person, and cerby the president and secretary. Held (1) to be a joint
tain remedy afforded for every injury to person, propstock company; (2) that as each partner had author
erty or character, in no manner alters this rule. It ized a conveyance by the president and secretary, his
means only that for such wrongs as are recognized by title passed by such deed. In Fereday v. Wightwick,
the law of the land the courts shall be open and afford a 1 Russ. & M. 45, it is said that all property acquired remedy, Harmon v. Dreher, 1 Speers Eq. 87; Robertfor the purpose of a trading concern, whether of a
son v. Bullions, 9 Barb. 134; Shannon v. Frost, 3 B. personal or real nature, is to be considered as partner
Monr. 261; German Reformed Church v. Seibert, 3 ship property, and is to be applied accordingly in satis
Penn. St. 282; State ex rel. v. Farris, 45 Mo. 183; Watfaction of the demands of the partnership. Fall River,
son v. Garvin, 54 id. 364. (2) The plaintiff, a member etc., Co. v. Borden, 10 Cush. 458. But it is said that
of the Presbyterian Church, was tried by a session of there has been no conveyance of the legal title by the
the church in his absence, and without notice to him, individual members of this company; hence they still upon a charge preferred by the pastor, who was a hold the legal title to said lots. Real property ac
member of the session, that plaintiff had made false quired with partnership funds for partnership pur
and defamatory statements concerning the pastor, and
he was excommunicated by resolution of the session. poses is regarded in equity as personal estate, so far as
Held, that unless the charge was false, and the memthe adjustment of partnership rights and payment of
bers of the session maliciously, falsely or colorably partnership debts are concerned. In the view of a
made the proceedings against plaintiff a pretense for court of equity it is immaterial in whose name the
covering an intended scandal, they had not laid themlegal title to such property may be taken, whether in
selres open to action for libel. Farnsworth v. Storrs, the name of one or all the partners, as the person
5 Cush. 412; Streety v. Wood, 15 Barb. 105; Shurtlett holding the legal title does so for copartnership pur
v. Stevens, 51 Vt. 514; S. C., 31 Am. Rep. 698. And the poses. Dupuy v Leavenworth, 17 Cal. 263: Buckley v.
burden of proving express malice is upon the plaintiff, Buckley, 11 Barb. 45; Keudall v. Rider, 35 id. 100. In
Shurtleff v. Stevens, supra; Town. Sland. 386; 2 Add. Fowler v. Bailey, 14 Wis. 140, it is said:. " It is a fa-Torts, 931; Bradley v. Heath, 12 Pick. 163; Van Wyck miliar principle of the law of partnership that when
V. Aspinwall, 17 N. Y. 190; Lewis v. Chapman, 16 id. partners intend to give real estate the character of
369; Vanderzee v. McGregor, 12 Wend. 545; Klink v. partnership property, and when they use it and treat
Colby, 46 N. Y.427; 8. C., 7 Am. Rep. 360. (3) The it as such, then it will like all other assets of the firm
clerk of the session entered the resolution of exoombe applied to the payment of the partnership debts,
munication and a preamble accompanying it upon the notwithstanding the paper title may happen to be in
minute book of the session, exhibited them to memone partner, or appear to be in all as tenants iu com
bers of the session for their signature, and sent plaintmon.” Fairchild v. Fairchild, 64 N. Y. 471. But
iff a written copy, and the pastor read both preamble while real estate purchased with partnership fuvds
and resolution to the congregation in church. Held, and held as partnership property will be listed as per- that these acts did not of themselves amount to a pubsonal property, yet ordinarily in the absence of ex
lication of a libel, or furnish a foundation for an action press authority, one partner cannot convey the whole
against either clerk or pastor. Landis v. Campbell. title to real estate unless the entire title is vested in
Opinion by Henry, J. ( See Isham v. Fullager, 14 him. Chester v. Dickerson, 54 N. Y. 1; Van Brunt v.
Abb. N. C. 363.-ED.) Applegate, 44 id. 544. But an absent partner may be
*To appear in 70 Missouri Reports. bound by a deed executed by a copartner in the firm
CARRIER - RESTRICTING LIABILITY - DUTY AS TO Davis v. Taul, 6 Dana, 51; Richey v. Johnson, 30 PROVIDING TRANSPORTATION.--(1) A contract by which Ohio, 288. Huntress v. Place. Opinion by Field, J. a common carrier undertakes to relieve bimself of all [Decided June, 1884.) liability for damages occasioned by any delay in trans
CONVERSION--INSTRUCTIONS--EXCEPTION TO CHARGE. portation and to impose them upon the shipper, will
-The auditor's reports find that the defendant conbe effectual to protect the carrier only agaiust the con
verted to his own use the chattels specified in the decsequences of delays not caused by his own negligence. laration, and that he “ owes the plaintiff upon the ra. Harvey v. Railroad Co., 74 Mo. 541; Sturgeou v. Rail
rious items of account the sum of money respectively road Co., 65 id. 569; Rice v. Railroad Co., 63 id. 314; St. Louis, K. C. & N. Ry. Co. v. Cleary, 77 id. 634. (2) opposite each item,” setting forth a sum certain in refacilities and means of transportatiou for all freight the auditor does not find that fact in terms, and that It is the duty of a common carrier to provide sufficient spect of each. These words plainly import that the
goods belonged to the plaintiff; and the objection that which it should reasonably expect will be offered, but his phraseology is inapt, is too retined, even if it were it is not bound to provide in advance for extraordinary occasions, por for an unusual influx of business open here upon exceptions to the refusal to recommit
or to the admission of the reports in evidence. Butwhich is not reasonably to be expected. (3) If he receive property for transportation without any agree- the refusal to rule upon the sufficiency of the plaint
terworth v. Western Assur. Co., 132 Mass. 489. Or to ment to the contrary, he thereby undertakes to carry
iff's evidence to maintain the action, or to direct a and deliver it within a reasonable time, regardless of
verdict before the whole testimony was closed on both any extraordinary or unexpected pressure of business
sides. Wetherbee v. Potter, 99 Mass. 354; Kingsford upon him. Dawson v. Chicago & Alton R. Co. Opin
v. Hood, 105 id. 495. At the close of the argument for ion by Hough, C. J.
the defendant his counsel presented twenty-three reMUNICIPAL CORPORATION-NUISANCE — POWER TO quests for instructions, but the court declined to rule ABATE.-Power conferred upon a municipal corpora- upon them on the ground that they were not seasonably tion to abate nuisances is conferred for the public presented, at the same time saying, that at the close good, and not for any private corporate advantage, of the charge, the counsel could ask for such further and for the failure of its officers to properly exercise instructions and except to such parts of the charge as he the power the municipality is not liable. Citing Mur- saw fit. At the end of the charge the court reported taugh v. St. Louis, 44 Mo. 479. Armstrong v. City of that if there were matters which counsel conceived Brunswick. Opinion by Norton, J.
had been omitted, they might call attention to them. CONTRACT-PARENT AND CHILD - SERVICES REN.
This course was exactly in accordance with the decisDERED-PROV İSION IN WILL.--(1) Valuable services
ion in Ela v. Cockshott, 119 Mass. 416, 418, as generally which would as between strangers raise an implied
understood and acted upon. We do not see sufficient promise to pay for them, when performed for a person
reason for disturbing the now settled practice which in loco parentis will not of themselves have that ef
leaves it within the discretion of the court, when a fect; and this whether they are performed wholly multitude of requests are presented after the arguduring minority or partly after majority. Guenther
ments have begun, to throw the burden on counsel of v. Birkicht, 22 Mo. 439; Hart v. Hart, 41 id. 431; calling attention to points not dealt with, at the end of Smith v. Myers, 19 id. 443. (2) In an action against the
the charge, with the right of course to except to such estate of a deceased person for services performed for portions of the charge as they deem erroneous. The him during his life-time, held, that his will making defendant's general exception to the charge, without provision for the plaintiff was properly admitted in pointing out particulars, was bad. Curry v. Porter, evidence as corroborative of the claim made in defense
125 Mass. 94. McMahon v. O'Connor. Opinion by that the position of plaintiff was that of a member of Holmes, J. the family of the deceased, and as bearing upon the [Decided May, 1884. ] supposed undertaking to pay wages for his services. WILL-MARRIED WOMAN-REVOCATION-SUBSEQUENT Cowell v. Roberts. Opinion by Martin, Comr.
MARRIAGE.-It has been settled at common law that the marriage of a femme sole rerokes her will. In case
of a man it is equally well settled that marriage alone MASSACHUSETTS SUPREME JUDICIAL
does not revoke his will, but that marriage and the COURT ABSTRACT.
birth of a child do, 1 Jar. Wills, 122; Warner v. Beach, 4 Gray, 162. If we were under po restraint, we might
well hesitate to hold that since testamentary capacity WILL-GIFT-PER CAPITA.-In this case the words of has been given to women, her will made when sole the will are: “The residue and remainder of the prop- should be revoked only by marriage and the birth of erty left by my said wife shall be equally divided a child, as in case of a man, for the sake of uniformity among my brothers and sisters and their heirs, after only, when we are inclined to think a better rule having paid the two last named legacies." The argu- would be that in case of a man his will should be rement of the appellant is that this is a gift to a class; voked by marriage alone. But such a rule can ouly be that only those of the class take who survive the testa- introduced by the Legislature. In England, by 1 Vic., tor; and that the words “and their heirs” are words ch. 26, § 18, and in many of the States in this country, of limitation, and were used to express the intention it has been provided by statute that the wills of both of the testator to give the absolute property. The ar. men and women shall be revoked by marriage. See colgument of the appellees is, that by the use of the plu- lection of statutes in 1 Jar. Wills, 122, notes to Bigeral word “sisters” the testator must have intended low's ed. But we are of opinion that the question now not only his sister who was living, but his sisters who before us has been so far settled by statute as not to had deceased; and as these last could not take, the admit of change by construction. R. S., ch. 127, $ 8, testator intended that their heirs should take the after providing that no will shall be revoked unless by shares appropriate to them in the division. This ques- burning, tearing, etc., or some other writing executed tion is one of difficulty, but we are inclined to the in the manner required in the case of a will, goes on view of the appellees, for the reasons given in Gow- as follows: “But nothing contained in this section ling v. Thompson, L. R., 11 Eq. 336. See also Barnaby shall prevent the revocation implied by law from subv. Tassell, id. 363 : In re Sibley's Trust, 5 Ch. sequent changes in the condition or circumstauces of D. 494 ; 22 Eng. R. 246; Widgen v. Mello, 23 Ch. D.737; the testator.” It is not apparent that an entire rero
cation by implication of law results from any change of condition or circumstances except that of a subsequent marriage. See discussion in Warner v. Beach, 4 Gray, 162. This clause as to implied revocations was first introduced m the Revised Statutes, cb. 62, $ 9. The other provisions as to revocation were substantially taken from section 2 of chapter 24, of the acts of 1783. The commissioners in their note to this section say: "The clause as to implied revocation recognizes and adopts the existing law as established and understood among us.” And their further discussion of this subject shows clearly that they had in mind the rule of the common law, that in case of a man, marriage and the birth of a child, and in the case of a woman, marriage alone, revoked a will previously made. We are of opinion that this provision, as to implied revocations, from its language and the reasons given for its introduction, has substantially the force of an express enactment of the rules of the common law, which we are not at liberty to change, even if the reason for the rule, in case of a woman, no longer exists. This was the view taken in Brown v. Clark, 77 N. Y. 369, upon a similar question under a statute of New York. We are therefore of opinion that the will of Susan E. Hammond was not properly admitted to probate. Swan y. Hammond Opinion by Colburn, J. [Decided Oct. 24, 1881.]
CORPORATION-BENEVOLENT--SUSPENSION OF MEMBER-NOTICE.-The plaintiff objects that the notice of his suspension was invalid, because it contained only a printed fac simile of the seal of the lodge, and the constitution of the defendant required that it be under the seal of the lodge. The provisions of the constitution are not fully set out, and we are therefore unable to determine whether, by the constitution, the presence of the seal is made any thing more than a matter of form, or whether a printed fac simile of the seal is not what was intended. There is no evidence that Karcher was misled by the notice, or that it was not in all respects as effectual in giving him information as if it had contained an actual impression of the seal of the lodge. So far as appears, this defect in the notice, if it was a defect, was immaterial. As the constitution and by-laws of the defendant, or of the Golden Rule Lodge, are not fully set out, we cannot construe them, but it appears that Karcher was a member of that lodge, and was “suspended in usual form;" and it must be assumed that this was done according to the rules of the lodge, and that as a member he was subject to these rules. The evidence offered amounts to this, that the lodge, in good faith, and in the manner prescribed by its rules, suspended Karcher for a cause which unexplained warranted suspension, but for which his illness was a justification. It was his duty to exhaust the remedies provided by the society of which he was a member, before appealing to the courts. Chamberlain v. Lincoln, 129 Mass. 70. He was suspended by the tribunal which he had chosen to determine the question according to rules to which he assented in becoming a member, and he received notice of the proceedings. The action of this tribunal, according to its rules, on a question which it had authority to decide, honestly taken, after the requisite notice to him, cannot be collaterally reviewed in this suit, on the ground that facts existed which, if brought to the notice of the tribunal, would have warranted or required a different decision. Grosvenor v. United Society, 118 Mass. 78; Dolan v. Court Good Samaritan, 128 id. 437. Karcher v. Supreme Lodge Knights of Honor. Opinion by Field, J. (See 15 Am. Rep. 24; 67 How. Pr. 38; 27 Eng. R. 595.- ED.) (Decided June, 1884.]
JURISDICTION-FOREIGN CORPORATION-SERVICE ON -ASSIGNMENT OF LETTERS-PATENT.--In this Common.
wealth a foreign corporation, unless jurisdiction is given over it by statute, or unless it voluntarily appears, cannot be sued at law except by means of an attachment of its property. Andrews v. Michigan (entral Railroad, 99 Mass. 534; National Bank of Commerce v. Huntington, 129 id. 444. The service of pro
ess in this suit was not a legal service upon the corporation, as there is no statute authorizing such a service; at the most it was only equivalent to notice of the suit. It seems that the law is otherwise in England and in some other jurisdictions. Newby v. Von Oppen & Colt Manuf. Co., L. R., 7 Q. B. 293; 1 Eng. R. 323; Baltimore & Ohio Railroad v. Wightman, 29 Gratt. 431. A corporation may be decreed specifically to perform a contract. Jones v. Boston Mill Co., 4 Pick. 507. And this court has jurisdiction in equity to compel the assignment of letters-patent. Binney v. Annan, 107 Mass. 91. It does not appear that the personal cbattels cannot be replevied, and as they are within the Commonwealth, if they are in the possession of any one, they must be in the possession of some person within the Commonwealth, who could be served with process and compelled to deliver up the chattels if the plaintiffs are entitled to the possession of them. No such person has been made a party defendant. So far as the bill asks for an assignment of letters-patent it asks for a personal decree against the defendant. Whatever may be the extent of the jurisdiction of the court over all property and all persons within the Commonwealth, it has never been held to extend to a foreigu corporation, not made by statute amenable to process, for the purpose of compelling it specifically to perform a contract by executing a written assignment of letters-patent, unless the corporation voluntarily submits itself to the jurisdiction. The rights conferred by letters-patent have no special locality within the Commonwealth; they exist as well in Maine, where the corporation was created, as in Massachusetts. Carver v. Peck, 131 Mass. 291. We think this case is not within the purview of the Public Statutes, ch. 141, $ 22; and that the bill must be dismissed. Spurr v. Scoville, 3 Cush. 578; Moody v. Gay, 15 Gray, 457; Felch v. Hooper, 119 Mass. 5:2; Walling v. Beers, 120 id. 548; Kansas Construction Co. v. Topeka Railroad, 135 id. 34. Desper v. Cont. Water Meter Co. Opinion by Field, J. (See 15 Eng. R. 270.) [Decided June, 1884.]
NEW JERSEY COURT OF CHANCERY AB
SURETY-ENTITLED TO INDEMNITY-SUIT TO COMPEL PRINCIPAL TO PAY.-As a general rule, all that the surety is entitled to against the principal debtor is iudemnity; in other words, to be made whole. If he pays less than the full amount due, or in depreciated currency, all he can recover is what he paid, or the value of what he gave in satisfaction. He has a right to be reimbursed, but to nothing more. Burge Sur. 359; 2 Dan. Neg. Inst., $ 1312; Snyder v. Blair, 6 Stew. Eq. 208. In Fowler v. Strickland, 107 Mass. 552, it was held that an accommodation indorser has the same right to purchase paper on which he is liable that any other person has, and that in case he become the purchaser of such paper, he is entitled to recover the full amour due without re rd to what he paid for it. The surety being entitled to nothing but indemnity, it follows necessarily from this limitation of his right that until he has paid something for his principal debtor he has no right to demand any thing of him except that he pay his debt to their common creditor, This right he may enforce in equity. After the debt
*Appearing in 38 N. J. Eq. Reports.
for which he is liable becomes due, and after his prin- April 22, 1879, was not “willful, continuous and obsti. cipal has made default, the surety may maintain a suit nate desertion,'' so as to entitle her to a divorce. Wolf in equity to compel his principal to pay his debt. v. Wolf. Opinion by Ruuyon, Chancellor. Irick v. Black, 2 C. E. Gr. 189; King v. Baldwin, 2
MARRIAGE-DIVORCE-EVIDENCE OF ACCUSED-SUFJohns. Ch. 554. Equity gives this remedy to the surety,
FICIENCY OF EVIDENCE.-(1) While the evidence of the because, as was said by Lord Keeper North, it is
accused parties in actions for divorce, grounded on upreasonable that a man sbould always have such a
adultery, is, as a general rule, entitled to but little cloud hang over him. Ranelaugh v. Hayes, 1 Vern. 189.
weight, yet in a doubtful case it should be given suffiBut this is his only remedy. Until he pays something
cient weight to defeat a divorce. (2) No general rule his principal is under no liability to him, and owes
defining what circumstances will constitute sufficient him no duty except to pay his debt to their common
evidence of adultery can be laid down which will fur. creditor. Delaware, etc., R. Co. v. Oxford Iron Co.
nish a safe guide for every case, yet this much may be Opinion by Van Fleet, Vice-Chancellor.
safely said : that the circumstances must be such as INSURANCE --ASSESSMENTS-BY-LAWS-REINSTATING will lead the guarded discretion of a reasonable and MEMBER.—The by-laws of an unincorporated mutual just mind to a satisfactory conviction that the crime insurance association provided that in case a member has been committed. Culver v. Culver. Opinion by had, for failure to pay an assessment promptly, been Van Fleet, Vice-Chancellor. dropped from the association by the secretary, the board of directors should have power to reinstate him
JUDICIAL SALE-RIGHTS OF PURCHASER-JUDGMENT on his presenting to them a reasonable excuse for such
-COLLATERAL ATTACK.--A court of general jurisdicfailure, and paying the sum in arrear. A member
tion may misconstrue, misapply or plainly disobey the being delinquent, appeared before them and offered a
law in pronouncing judgment, yet so long as its judgsufficient reason for his delinquency, and the board re
ment remains unreversed it unalterably binds the par. fused to reinstate him, because they alleged that his
ties and pronounces the law which defines and deterhealth was then precarious. He died very soon after
mines their rights in that particular case. A purchaser ward. Held, that this court might, after his death,
of land sold pursuant to the decree of a court of gen. examine into and determine the adequacy of the rea
eral jurisdiction assumes no responsibility for the corson so offered, and in a proper case compel the associa
rectness of the legal principles on which the decree is tion to pay the amount of insurance to which the de
founded. All he need do is to see that the court had linquent's widow is entitled. Van Houten v. Pine.
jurisdiction of the parties and of the subject-matter Opinion by Runyon, Chancellor.
of the suit, and that the decree pronounced was within the scope
the pleadings. A record showing these WILL-POWER OF SALE-EQUITABLE CONVERSION.
facts must be accepted by every domestic tribunal as A testator by his will provided as follows: “On the an indisputable verity. Even a subsequent reversal of death of my said wife I do give, devise and bequeath
the decree will not affect him, for it is a principle of all my estate, both real and personal, to my executors manifest justice, as well as of established law, that hereinafter named, in trust, nevertheless, for the fol
rights acquired by a third person in the enforcement lowing use and purpose, that is, in trust for my chil
of a decree of a court of general jurisdiction, shall en. dren, to be divided among them, share and share
dure, though the decree be afterward reversed. Rorer alike, as follows: To my sons I direct my said execu
on Jud. Sales, $ 431. In such case the injured party tors to pay their respective shares as they arrive at
must look for redress to the person who got the the age of twenty-one years; the respective shares of
money for the land, and not to the person who paid my daughters I do order and direct my said executors
his money for the land under the sanction of a judi. to hold in trust to pay to them, respectively, the in
cial sentence. So great is the faith imposed in judicial come arising from their respective shares, in half-records that it has been held that a bona fide purchaser yearly payments during their natural lives, free from
at a judicial sale is entitled to hold the land he has the control of any person or persons whatsoever, and
purchased and paid for, though the defendant had be• to their own and sole use; and on the death of either fore the sale paid the debt on which the judgment was of my said daughters, to pay the share of such deceased
founded, but left the judgment to stand open and undaughter to her heirs at law." Held, that it was quite
satisfied on the records. Nichols v. Dissler, 5 Dutch. clear that the testator intended that the land should
293; 8. C., on error, 2 Vroom, 461. But this case prebe converted into money. The fee is given to the ex
sents no question for discussion. The principle which ecutors. The real and personal estate are blended to- must control its decision is authoritatively settled. gether in the disposition of them, and the executors
Chief Justice Beasley, speaking for the Court of Errors are to divide them among the children — to pay the
and Appeals, in McCahill v. Equitable Life Assurance gons their shares and the daughters the income of
Society, 11 C. E. Gr. 531, said: “The decision of a dotheirs for life. The direction to pay the sons' shares
inestic court of general jurisdiction, acting within the implies a direction to convert, and so of the direction
scope of its powers, has inherent in it such conclusive to pay the income of the daughters' shares; it implies force that it cannot be challenged collaterally, and a direction to invest, which involves the necessity of such decision definitely binds all persons embraced in converting the land. The following cases are in point:
it, unless on objection made to such court itself
, or Van Ness v. Jacobus, 2 C. E. Gr. 153; Wurts v. Page,
in a direct course of appellate procedure. 4 id. 365; Haggerty v. Lanterman, 3 Stew. Eq. 37; Za
Such judicial act may be voidable, but it is not void. briskie v. M. & E. R. Co., 6 id. 22. The executors un
If even admittedly erroneous, such error cannot be set doubtedly have the power to sell. Belcher v. Belcher.
up against the decree in a collateral proceeding Opinion by Runyon, Chancellor.
founded upon the decree." The petitioners are not MARRIAGE-DIVORCE-DESERTION.-On April 21, parties to this suit, and they cannot therefore chal1879, a husband so grossly abused his wife that she lenge the decree by appeal. If they attack it at all, went to her parents' home. The next day he followed they must do so collaterally, and this method of ather there, and calling her out of the house, shot her. tack, it has been settled from the earliest times, is not He then absconded, but was in the summer of 1879 ar- open to them. It is undoubtedly true as a general rule, rested, tried and convicted, and sentenced to impris- that a suitor who seeks relief against an infant deonment in the State prison for five years, where he was fendant must prove his whole case, and that nothing accordingly confined. He was released after this suit can be taken or admitted against him, either by bis was begun, Held, that his absence from his wife since default or on the answer of his guardian ad litem.
Mills v. Dennis, 3 Johns. Ch. 367; Holden v. Hearn, 1 or any other for them.” See also Burkholder's ApBeav. 445. Shultz v. Sanders. Opinion by Van Fleet, peal, decided at the present term, 14 Weekly Notes, Vice-Chancellor.
234. We might multiply authorities upon this point, but the law is too well settled to require it. Held,
that the moiety of the income from the whole of the PENNSYLVANIA SUPREME COURT
residue as provided by the agreement being possibly ABSTRACT.
more to the widow's advantage than the whole income
from one half the residue of the estate as set apart, it ASSIGNMENT-PARTIAL - MUNICIPAL CORPORATION could not be said that she has no standing to object to
CLAIMING THROUGH.-A partial assignment of a a division contrary to the terms of the agreement, and claim upon a municipal corporation is not binding that the estate should therefore be disposed of accordupon the corporation, and the holder thereof ing to the terms of such agreement. Wilen's Appeal. has no claim that he can enforce against the general Opinion by Paxson, J. creditors of the assignor. Such an assignment is only (Decided Feb. 4, 1884.] an agreement to pay out of a particular fund. Christmas v. Russell, 14 Wall. 70; Gibson v. Stone, 43 Barb.
LIMITATIONS-OPENING JUDGMENT TO LET IN DE285; Rogers v. Hosack, 18 Wend. 319; Trist v. Child, FENSE-EVIDENCE-AMENDMENT.--(1) Judgment hav21 Wall. 447 ; Jermyn v. Moffitt, 25 P. F. S. 399. In ing been entered upon a judgment note more than ten Mandeville v. Welch, 5 Wheat. 277, the rule is thus years after date, without complying with a rule of clearly stated by Mr. Justice Story: “When the court requiring a special application to the court, acorder is drawn on a general or a particular fund for a companied by an affidavit, for leave to enter judgment part only, it does not amount to an assignment of that
in such case, it is within the discretion of the court on part, or give a lien as against the drawee, unless he application of defendant to permit such judgment to consent to the appropriation by an acceptance of the
be opened, so that the statute of limitations may be draft." It is useless to multiply authorities. Aside
pleaded. There was a time when the statute was refrom this it has been repeatedly held that upon the
garded with so much disfavor that it was said in Brown distribution of an assigned estate, a claimant upon the
v. Sutter, 1 Dall. 239, that the court would never open a fund must claim by and through the assignment. He
regular judgment to let in the plea of the statute of cannot claim adversely to it. Okie's Appeal, 9 W. & limitations, but as was held by Chief Justice Gibson S. 156; Jefferis' Appea), 9 Casey, 39; Bush's Appeal, 15
in the later case of Ekel v. Snevily in 3 W. & S. 272: P. F. S. 366; Wylie's Appeal, 11 Norris, 196; Strick
“As the plea of that statute has since been considered ler's Appeal, 10 Weekly Notes, 535; Williams Bros.' in Shock v. McChesney, 4 Yeates, 507, and The Bank Appeal, 13 id. 217. In the last case it was said in the v. Israel, 6 S. & R. 294, to be no longer an unconscionopinion of the court: “An auditor appointed to adjust
able one, the rule of practice would hardly be held so and settle the accounts of a voluntary assignee for
now.” And there seems a propriety in the present caso creditors is confined to the accounts between the as- of opening the judgment to let in the plea of the statsignee and the cestuis que trust. Third persons claim- ute, inasmuch as the judgment was entered without ing adversely cannot interfere in the settlement, but
leave of court, or the affidavit required thereby, upon must resort to adversary proceedings." Schroeder's a note which upon its face was then barred by the Appeal. Opinion by Paxson, J.
statute. In any event it was a matter in the discre[Decided Jan. 7, 1884.]
tion of the court, and we see no error in opening the
judgment. (2) A judgment as above was entered upon WILL - FAMILY SETTLEMENT - COMPROMISE – CON
a joint and several judgment note against two of the SIDERATION.-A testator by his will gave his widow
makers, the third being dead. The court, on applicathe income of his residuary estate so long as she re
tion of one of the defendants opened the judgment as mained his widow, and in case of her remarriage one
to all of them, and an issue was made up at bar, the half of the income during life. At her death
note to stand for the declaration and defendant to or remarriage, he gave his mother the income
plead the statute of limitations. Held, that plaintiff of the residue for life, and after the death of
should have been allowed to put the note and record the wife and mother, he gave the residue to his broth
in evidence, in. order to enable him to follow the same ers and sisters. The mother afterward died, and sub
up with evidence tolling the statute. (3) The above Bequently the widow remarried. For the purpose of
offer of evidence being refused, plaintiff offered to avoiding litigation as to the disposition of the one
prove a payment on account by one of the defendants, half of the residue during the widow's life-time, the
and also moved to amend the issue at bar so that it brothers and sisters joined with the widow in an
should stand as against the defendant alone making agreement that the income from the whole residue
such payment. Held, that the amendment should should be paid, one-half to the widow, and the other
have been permitted. Herman v. Rinker. Opinion by half to the brothers and sisters share and share alike.
Paxson, J. Subsequently at the audit of the executor's account,
[Decided April 14, 1884.] upon demand by the brothers and sisters for the pay. ment of the moiety of the residue before the widow's NEGLIGENCE-INSURANCE-EVIDENCE AS TO KEEPdeath, held, that the agreement being in settlement ING WATCHMAN-FIRE FROM ENGINE.—(1) In an acof a family dispute, was founded on a consideration tion for damages for the loss by fire of the contents of favored in law, and was binding upon the parties a building, brought by several insurance companies in thereto. Tbe law is thus laid down by Mr. Bispham the name of the insured whom they have.indemnified, in bis work on Equity at p. 192: “And family com- evidence is admissible to show that the building, promises, especially if they are made in good faith, owned by a third party, was insured in one of the said and with full disclosure, are favored in equity, and companies, and that the policy of insurance contained may be sustained by the court, albeit perhaps rest- a clause requiring the insured to keep a watchman eming upon grounds which would not have been con- ployed, which requirement was not fulfilled. (2) sidered satisfactory if the transaction had occurred Although ice companies have the right to use shavings between strangers.” It was said by Thompson, J., in in their business, yet if they use them in such a careWalworth v. Abel, 2 P. F. S. 370, that “ family ar- less manner as to render it possible that they should rangements are favorites of the law, and when fairly be set on fire by the engine of a neighboring railroad made, are never allowed to be disturbed by the parties company, they are guilty of contributory negligence;