Page images

POWER OF LEGISLATURE.—(1) The perpetual exemp OF COURTS.-(1) A license to construct and use a pat-
tion of the capital stock of a railroad corporation from ented invention is personal to the licensee, aud there-
taxation by the provisions of its charter covers the in ceiver of a firm to which such a license has been
dividual interest therein of the stockholders; and a granted will not succeed to the firm's right. Oliver v.
subsequent law imposing a tax on the shares owned by Runnford Cheese Works, 109 U. S. 75. (2) Where a de-
them impairs the obligation of the contract between maud against a receiver does not involve the adminis.
them and the State, and is unconstitutional and void. tration of the trust committed to him, but arises from
Union Bank v. State, 9 Yerg. 490; Railroad Co. v. his having taken uulawful possession of property not
Gaines, 97 U. S. 67. In Farrington v. Tennessee, 95 included in the trust, a suit will lie against him per-
U. S. 679, the bank charter provided that the bank sonally as for a trespass, even though he took posses-
“shall pay to the State an anuual tax of one-half of sion of such property under an order of court. Ilartell
one per cent. on each share of the capital stock sub Tilghman, 99 U. S. 517; Barton v. Barbour, 104 id. 126.
scribed, which shall be in lieu of all other taxes." It (3) In such cases, where the receiver has acted under an
was held that the words “in lieu of all other taxes, order of a State court in taking possession of the prop-
as thus used, meant in lieu of all other taxes that erty, an application should be made to such court to
might be imposed on that subject of taxation, viz., the correct its order before resorting to an action of tres-
shares of the capital stock; and that accordingly it ex pass on the case in a Federal court. (4) If that course
cluded a tax on those shares assessed upon them is not followed the Federal court will suspend pro-
agaiust the individual shareholder as his property. ceedings before it until the application to the State
Mr. Justice Swayne, delivering the opinion of the court is inade, in order to avoid a conflict of jurisdic-
court, said: “There is no question before us as to the tion. Cir. Ct., E. D. Mo., Oct., 1884. Curran v. Craig.
tax imposed on the shares by the charter, but the Opinion by Treat, J.
State has by her revenue laws imposed another and an

MARINE INSURANCE-PAYMENT OF PREMIUMS-DEadditional tax on these same shares. This is one of

LIVERY OF POLICY CONTAINING RECEIPT-RATIFICAthose other taxes' which it had stipulated to forego.

TION OF AGENT'S ACTS-LEX LOCI-GENERAL LIEN-UNThe identity of the thing doubly taxed is not affected

PAID) PREMIUMS.-(1) The delivery of the policy of inby the fact that in one case the tax is to be paid vicariously by the bank, and in the other by the owner of

surauce to the assured, containiog a receipt for the the share himself. The thing thus taxed is still the

premium, estops the company, for the reason that the

receipt is conclusive evidence of payment, to the exsame, and the second tax is expressly forbidden by

tent at least that such payment is necessary to give the contract of the parties. After the most careful consid eration we can come to no other conclusion.

validity to the contract. The company will not be

permitted to say that no contract was niade. 3 Kent Such, we think, must have been the understanding and

Com. 260; Provident Ins. Co. v. Fennell, 49 Ill. 180; intent of the parties when the charter was granted

Basch v. Humboldt Ins. Co., 35 N. J. L. 429. (2) When and the bank organized. Any other view would ig

the unauthorized act of an agent is ratified by the nore the covenant that the tax specified should be in

principal, tho ratification relates back to the time of lieu of all other taxes; ' it would blot those terms

the inception of the transaction, and the act is treated from the context, and construe it as if they were not a part of it.”' (22) The Logislature of a State may dis

throughout as if it were originally authorized. Story

Ag., S 24. See also Soames v. Spencer, 1 Dowl. & R. tinguish betweeu tho interests of a corporate body in

32 (16 E. C. L. 14); Moss v. Rossie Lead M. ('0., 5 Hill, its capital or capital stock and that of the individual

137; Lawrence v. Taylor, id. 107; Hankins v. Baker, shareholder as separate subjects of taxation; so that

46 N. Y. 670. The subject of the insurance was a ('anone may be taxed and tho other exempt, or both gov

adian vessel. The note, payable at a ('anadian bank, erned by the same rule of taxation or exemption, at its discretion. Cir. ('t., . 1). Teun., 1884. State os | ing a receipt for the premium note, was delivered in

was dated and signed in Canada. The policy, containTennessce v. Whitworth. Opinion by Matthews, J.

Canada. The ratification, if ratification were needed, BANKRUPTCY-PARTNERSHIP CREDITORS-PARTNER related back to what took place in ('anada. It must ASSUMING FIRM DEBTS.-(1) The rule that the joint es be held therefore that the contract was made in Cantate must be applied to pay the joint debts and the ada, and as a necessary result, that the case must be separate estate to pay the separate debts is only appli determined by Canadian law. Heebrer v. Eagle Ins. oable where the joint estate as well as the separate es. ('0., 10 Gray, 131, 143; Male v. Roberts, 3 Esp. 163; tate is before the court for distribution. U. S. v.

Thwing v. Great West. Ins. ('0., 111 Mass. 93; Wood Lewis, 13 N. B. R. 33. And where there is no joint es Fire Ius., $ 93. (3) The law of New York creating a tate the firm creditors, under such a state of facts as lieu in favor of underwriters for unpaid premiums of exist here, have a right to share in the separate estate. insurance has no relation to insurance on a foreign Blum. Bankr. 268; In re Pease, 13 N. B. R. 168. There ressel, the contract for which is made in a foreign is no joint estate here; for by agreemont the assets of country. Moores v. Lunt, 4 T. & ('. 151; affirmed, 60 the firm of Lloyd, Hamilton & Co. still remaining in N. Y. 619; Brookman v. Ilamill, 13 id. 554. Ilaving no specie, are the separate estate of Wm. M. Lloyd, the privilege in Canada, there can be uone anywhere. I same as if they had always beer his individual prop am aware however that there is not entire unanimity erty. Colly. Partu., $ 891 (5th Am. ed.); Bullitt v. M. among the authorities upon the last question considE. Church, 26 Penn. St. 108; Lowo v. Lawrence, 9 ered, namely, whether the law of the contract or the Cush. 553. And it is quite immaterial that the assign- law of the forum should be controlling. See The Mag. ees have kept a separate account of these assets. (22) gie Hammond, 9 Wall. 435, 451, 452; Scudder v. Crion Where one of the partners takes the firm assets and Nat. Bank, 91 U'. S. 406, 41:2, 413; Harrison v. Sterry, 5 agrees to pay the joint debts, he becomes individually Cranch, 289; The Union, 1 Lush. 137; Ogden v. Saunliable; and the partnership creditors may, at their op ders, 12 Wheat. 213, 361. (4) No general lieu is cretion, prove against his estate in bankruptcy, and share ated by the maritime law in favor of the insurer for pari passu with the separate creditors. Blum. Bankr. unpaid premiums. The affirmative of this proposition 563; Iu re Downing, 3 N. B. R. 181, 183; In re Long, I is held by the following authorities, where the lien is id. 227; Iu re Rice, id. 373; In re Collier, 12 id. 266. relegated to the lowest class of maritine privileges. Dist. Ct., W. D. Penn., Sept. 1884. Aatter of Lloyd. The Dolphin, 1 Flippiu, 580; affirmed in a qualified Opiniou by Acheson, J.

way, id. 592; The Illinois, decided ou the authority of

[ocr errors]

The Dolphin, 2 id. 383; The Guiding Star, 9 Fed. Rep attached to the office is not promised to him by ex521; affirmed, 18 id. 263. In this case the lien was sus pression or legal implication, and the services are voltained because given by a State statute upon vessels untarily reudered. Dill. Mun. Corp., SS 168, 169, and navigating the waters of the State or bordering cases cited; Hoboken v. Gear, 3 Dutch. 265; Smith v. thereon. The following cases decide against the lien : Mayor, 37 N. Y. 518. Meehan v. Freeholders of HudThe Jenny B. Gilkey, 19 Fed. Rep. 127; The John T. son. Opinion by Knapp, J. Moore, 3 Woods, C. C. 61; The Robert L. Lane, 1 Low. 388, where the question is referred to, but not decided. CONSTITUTIONAL LAW-REGULATION OF COMMERCESee also the note to The Dolphin, in which the reporter LICENSE FEES.—The provisions of the act for the better has collected numerous authorities beariug upon the enforcement in Maurice river cove aud Delaware bay subject. The argument against the liens seems to me of the act entitled "An act for the preservation of to have the most weight. That the contract of insur clams and oysters,” is not repugnant to section 8, artiance upon a ship is in its nature maritime is no longer cle 1, of the Constitution of the United States, as an an open question. Insurance Co. v. Dunbam, 11 Wall. attempt to regulate commerce between the States. 1. It is however a contract for the personal indem- The imposition of a license feel upon ail boats engaged vity of the insured. The credit is given to him, uot in planting or taking oysters in -the said place, is vot to the ship. The principle upon which the law recog obnoxious to the requirement in the State Constitunizes a lien for necessaries is that the ship may thus be tion that property shall be assessed under general laws enabled to engage in the competitions of commerce. and by uviform rules according to its true value. The Security is given the material-man, it is true, but the Constitutions of other States contain provisions apachief benefit is to the ship. It enables her to sail. A logous to the requirement contained in ours, and contract of insurance in no way aids the ship. She wherever the courts have been called upon to construe sails no better and no faster because of the insurance. them in regard to their application to assessments It puts no steam in her boilers and no wind in her sails. upon occupations in the form of license fees, they have Dist. ('t., N. D. N. Y., 1881. 3fatter of Insurance Cos. been held inapplicable to the latter class of imposts. Opinion by Coxo, J.

The almost, if not quite, unbroken course of decision

has been in this direction, that these impositions are NEW JERSEY SUPREME COURT ABSTRACT.* quirements. People v. Thurber, 13 III. 554; Cole :

not taxes within the purview of the constitutional re

Hall, 103 id. 30; Chilvers v. People, 11 Mich. 43; CONVERSION-DEMAND) AND REFUSAL TO DELIVER.

Youngblood v. Sexton, 32 id. 406; State v. Henry, 26 Where goods have been deposited with a person for

Ark. 523; Bobler v. Schneider, 49 Ga. 195; People v. any purpose, and any other person than the depositor McCreery, 34 (al. 432 ; Cooley Tax., &$ 401, 402, 427. demands them of the bailee, the latter is not liable to

Johnson v. Loper. Opinion by Reed, J. an action of trover until he refuses to deliver after a reasonable time taken and opportunity given to ascertain the true ownership of the property. Leo v. Bays, 18 C. B. 607; Carroll v. Mix, 51 Barb. 212; Alexander TOIA SUPREME COURT ABSTRACT. v. Southey, 5 B. & Ald.247; Isaac v.('lark, ? Bulst. 314. In this case the refusal to deliver the goods to the real


EMPLOYMENTowner was not grounded upon an expressed doubt as to the wife's interest in them, but was accompanied by

PERSONAL INJURY-MEASURE OF DAMAGES.-(1) The an unqualified denial of her title, and an assertion that dangers from snow-banks are inseparable from the

operation of railroads when snow prevails and is rethey belonged to her husband. This refusal was a conversion. Ilinckley v. Baxter, 13 Allen, 139; Thomp

moved from the track, and employees wheu they enter son v. Rose, 16 conn. 71; 2 Greenl. Ev., $ 641. Wykol" railroad company is not chargeable with vegligence in

the servico assume the risk of such dangers, and the v. Slevenson. Opinion by Reed, J.

leaving the accumulations of snow which it removes OFFICER-USURPER OF PUBLIC OFFICE-NO ACTION from its tracks in proximity thereto, even though FOR SALARY.-Au unauthorized person gaining pos

some danger to its employees engaged in the opersession of a public office by forco or fraud has no right ation of its trains is created thereby. Dowell v. Burof action against the public for the prescribed fees or lington, ('. R. & N. R. Co., 17 N. W. Rep. 901, folsalary for services rendered during such usurpation. | lowed. (2) In an action by the administrator of a fireThe reasons which protect one who has performed the man against a railroad company for damages for negliservices belonging to a public oflice, under an appoint- gently causing intestate's death, in estimating the ment apparently regular and legal, in ignorance of and damages sustained it is proper to consider bis calling without the means of ascertaining clefects in the title,

at the time of his death, his ability, the amount of his and where his refusal to serve would leave a vacancy earnings, and like circumstances, and the estimate in olice, whether such reason be weak or strong, have should be made with reference to such facts as actuno application to a caso like this. In such a case wo ally existed, and such as it is reasonably certain would cannot doubt that in some form the officer de jure have occurred in the future but for his death; but it would be entitled in law to demand and have compen

is error to allow evidence that when firemen had suffisation for the injury done him by such an intruder. ir cient experience, and had acquired the requisite skill, payment bo made to the officer de fucto the public will they were sometimes employed as engineers, and paid be protected from further claim, as the disbursing ofli

an increased compensation for their services. Brown, cer is not bound to know the title by which an actual 10m'x, etc., v. Chicago, R. I. & P. R. Co. Opinion by incumbent holds, and the rival claims to the fund Reed, J. must be litigated between the individual claimants; [Decided (ct. 24, 1884.] but upon suit brought by the incumbent against the

MORTGAGE-PAYMENT OF TAXES FORECLOSUREpublic for pay, his title will be inquired into. Dolan v. Mayor, etc., of New York, 68 N. Y. 271. And ho must

CLAIM OF LIEN-NOTICE.-(1) When a mortgagee, under establish his right to be paid as between the plaintiff

a mortgage that provides that he shall have the secuand the public represented by the defendant. Stuhr rity of the mortgage for any taxes he may have to pay v. Curran, 15 V r. 181, distinguished. ('ompensation

on the premises, bids in the land at a tax sale, the law

treats his purchase as a mere payment of the taxes, *To appear in 46 N. J. L. Reports.

and gives him a lien therefor under the mortgage, and



when he forecloses the mortgage he is entitled to have Rep. 222; Fraser v. Freeman, 43 N. Y. 566; Howe v. the amount so paid included in the judgment against Newmarch, 12 Allen, 49. In the case of McKinley v. the mortgagor; but if he take judgment for the amount (Chicago & N. W. R. (*0., 44 Iowa, 314; De ('amp's case of the original debt only, thlien of the mortgage is and Cook's case, above cited, were distinguished upon exhausted, and a purchaser at the foreclosure sale takes the ground that in the latter the injury was dove to a a clear and absolute title to the premises. (2) That passenger, while in the former it was done to livesuch purchaser kuew when he purchased the premises stock, respecting which the duty of the railroad conthat the mortgagee claimed a lieu thereon for the

pany was entirely different. It is said however in that amount of the taxes separate from the lien of the case, that “if we were left to determine the question mortgage will not chango the effect of the sale. Dick

upon principle whether an employer should be held inson v. White. Opinion by Reed, J.

liable for the willful or criminal acts of the employee, [Decided Oct. 24, 1881.]

dono in the course of his employment, we should have

very little or no hesitation in affirming such liability, MORTGAGE-CONVEYANCE SUBJECT TO-DIVISION OF

and this because the employer has placed the employee TRACT.-T. sold a portion of a tract of real estate to L.,

in a position to do wrong; and it being done in the subject to a mortgage, and the rest of the tract to S.,

('ourse of bis employment, the intent with which it who sold to B. The mortgage was foreclosed, and B.

was done should not affect the liability of the employer, insisted that L. was bound to pay one-balf of the mort

whethor the intent be good or ill. So long as he acts gage debt. Held, that the assumption of a portion of

within the scope of his employment the employer the indebtedness by L. inured to the benefit of B. to

should be bouud. 2; The declarations of a brakeman the extent only of the amount L. had agreed to pay,

in putting a trespasser off of a train that he had auand that B. could not recover more than the agreed

thority to put him off are admissible as part of the res Edwards v. Thostenson. Opinion by Seevers,

gestar in an action against the railroad company for J.

damages caused by the forcible ejection. In 1 Greenlf. [Decided Oct. 24, 1881. )

Ev., $ 113, it is said: “Whenever what he did is ad

missible in evidence, then it is competent to prove MARRIAGE-DIVORCE-ADULTEROUS MARRIAGE OF

what he said about the act while he was doing it.” It PLAINTIFF.—The rule that it is not competent for one

was competent for the purpose of showing that the of the parties to a marriage to come into court and

brakeman intended to put the plaintiff off the car. It complaiu of the other's violation of matrimonial du

was not competent for the purpose of showing the auties, if herself likewise guilty, does not apply to one

thority of the brakeman to eject the plaintiff. But who contracts a second marriage under the belief that

the record does not show that this specific objection her husband is dead. The rule in England, and in at

was made to the testimony. (3) Testimony of a witleast several of the States in this country, is that when

ness, who before and after the ejection from the train a party knowingly commits adultery such act may

complained of, had been for fourteen years å foreman, be pleaded in bar of an action for a divorce. Clapp v.

brakeman, engineer, or conductor of the railroad Clapp, 97 Mass. 531. The rule may be thus briefly

company, that brakeman were subject to the orders of stated: “It is incompetent for one of the parties to a

conductors, and had orders to eject trespassers from marriage to come into court and complain of the

trains, and testimony of witnesses that they had seen other's violation of matrimonial duties, if himself like

brakemen eject trespassers, is competent evidence of wise guilty.” 2 Bish. Mar. & Div., $76. It is uncer

the authority of a brakeman to eject a trespasser. tain when the marriage of the plaintiff and John W.

Varior v. Chicago, etc., Ruilioud Co. Opinion by Smith took place; but from the meager evidence on

Rothrock, ('. J. that subject before us we reach the conclusion that it

[Decided Oct. 22, 1881.] must have taken place from ten to fifteen years after the plaintiff last heard from the defendant. She might NEGLIGENCE-EMPLOYEE OF RAILROAD)--QUESTION hare concluded he was dead. There is no evidence FOR JURY.-An employee of a railroad who, after sigtending to show that she supposed he was living. naling the train to stop, goes on to the track to make a There is no evidenco tending to show she was guilty coupling without looking or listening to see that the of any criminal intent, and we conclude such a mar train actually stopped, is not necessarily guilty of negriage does not bar her right to a divorce. Knowingly | ligence, and whether he is or not should be left to the she did not commit adultery. She camot be regarded jury. The only case in which this precise question has as a guilty party in this action. Smith v. Smith. Opiu been determined, which has come under our knowlion by Seever, J.

edge, is Beenis v. ('., R. I. & P. R. ('o., 58 lowa, 150. [Decided Oct. 24, 1881.]

In that case the decedent was attempting to uncouple

certain cars while the train was in motion, and he JASTER AND SERVANT-LIABILITY

gavo a signal to check the speed of the train, and withSERVANT-SCOPE OF EMPLOYMENT--EVIDENCE-DEC

out waiting to see whether it was obeyed or not, LARATION OF AGEST-RES GESTE-PROOF OF ALTIOR stepped between the cars and was injured. It was ITY.-(1) Where an employeo of a railroad company

held that he was not “necessarily guilty of contribuhas authority to remove persons from trains who have tory negligence.” We are unable to distinguish that ho right to be thereon, tho company is liable for any case from this, and to a considerable extent, at least, willful wrong he may do in removing a trespasser, and the same may be said in relation to Berry F. (entral it is immaterial what motive ho had or with what mal

R. ('0., 40 Iowa, 561, where il car repairer went under ice the act was done. It is claimed by counsel for ap a car on a side track for the purpose of repairing the pellant that if the petition and plaintiff's testimony be same, with the knowledge of an employee in charge of true, the assault was felonious, and was an act wholly the track anil movements of trains at that place, and without the scope of the brakeman's authority. A it was held that he had it “right to suppose that no large number of cases are cited upon the question as cars would be switched upon the track without notice tu the liability of a master for the wanton, willful, and to him, or at least that the switching would be dolle intentional wrong of his servant. Among the author

in a reasonably careful manner.' The only material ities which hold that tho master is not liable in such difference between this case and Steel v. ('ent. R. ('., cases are De Camp v. Mississippi & M. R. ('0., 12 Iowa, 4.3 Iowa, 109, is that the plaintiff in that case saw that 384; ('ooke v. Illinois Cent. Railroad ('o., 30 id. the signal to check the train was being obeyerl at the 202; ('leveland v. Nowsom, 45 Mich. 62; S. ('., ū N. W. time he attempted to pick up the pin, which lay on the



either through recklessness or for his own couvenience. As they were adopted for his benefit, or should be rogarded as just and proper, we can well see an employee should not recover damages for an injury received solely because he disregarded such precautions. The rule in O'Neill v. K. & D. M. R. Co., 45 Iowa, 546, and all other cases cited by counsel, were of a like character. It is difficult to say, when judgment and discretion is devolved upou an employee by a rule of the company, that he cannot recover damages for an injury received, because as claimed, he failed to properly exercise the discretion with which he was invested. It seems to us this is necessarily a question for the jury. Besides this the plaintiff gave a signal which should have caused the train to stop. Had this been done the plaintiff could have stepped on the track as he did with perfect safety. Bucklew v. Central lowa R. Co. Opiniou by Seevers, J. [Decided Oct. 23, 1884.]



track, and it was said in that case that he was ranted in believing his signal would be obeyed.” The fact that the plaintiff went on the track before the train stopped should not aloue prevent his recovery, unless he was negligent in so doing. To have so waited would have caused delay, and we apprehend railway companies expect their employees to avoid all delays possible. The necessities of the business, and due regard to the safety of trains, their own and lives of others, require prompt action on the part of employees in charge of trains. While this is true, recklessness cannot be tolerated. It is not believed that any general rule can be laid down. Therefore it is and must, ordinarily, be a question for the jury whether an employee of a railway company, whose duty it is to couple and uncouple cars attached or to be attached to a train, is or is uot negligent when he goes on the track in front of a moving train in the performance of such duty. The plaintiff was rightfully on the track, and it cannot be said that he was guilty of negligence if he had taken the ordinary and usual precautions for his own protection before he placed himself in that position. In relation to Pennsylvania Co. v. Hankey, 93 Ill. 580, we only deem it necessary to say that the question in that case was whether the appellee, in the exercise of proper care, should have made an attempt to make a coupling when the train was moving, he knowing it was dangerous to do so because of the condition of the track along which he was required to walk while attempting to make the coupling. Counsel insist that the rule which requires travellers who are about to cross a railroad track to ordinarily look and listen for an approaching train should be applied to employees who are required to go on the track in the performance of their duties. But we think such rule should not be strictly applied to an employee who is engaged in making up trains, which must, in a great measure, require his undivided attention. The traveller looks, listens, and crosses the track, and his duty is ended. This is not so with an employee engaged in making up trains, for it is undoubtedly true that frequently several cars are to be uncoupled and others coupled to the train. Considerable time is therefore required. If an employee so engaged is absolutely required to look and listen for approaching trains, or unexpected movements of the train in in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such an employee to look and listen for the movements of trains before he steps or walks on the track must be left to the jury to determine, and therefore it cannot be said that the plaintiff, as a matter of law, was guilty of negligence. Ominger v. N. Y, C. & H. R. R. Co., 4 Ilun, 159; Snow v. Housatonic R. Co., 8 Allen, 441; ludianapolis, B. & W. R. Co). v. Carr, 35 Iud. 510; ('rowley v. Burlington, C. R. & N. R. Co., 20 N. W. Rep. 467. Rule 59 of the company is in these words: “In all cases of doubt take the safo side and run no risk.” The plaintiff had kuowledge of this rule, and it is insisted that he disregarded it, and therefore he is not entitled to recover. The rule implies that an employee must exercise judgment and discretion in determining whether danger existed if he did a thing in a certain way or at a certain time. In this respect it is different from other rules to which our attention has been called by counsel. In I. C. R. Co. v. Houck, 72 Ill. 285, the rule was that only 110 pounds of stoain should be carried. In Shanny v. Androscoggin Mills, 66 Mo. 420, the rule required that the machinery should be stopped at a certain hour for the purpose of being cleaned. In Wolsey v. Railroad Co., 33 Ohio St. 227, coupling by hand was strictly prohibited, and the employee was required to use a short stick. Under these rules no discretion was left to the employeo. He failed to obey them,

NEGLIGENCE-APPROACHES TO PREMISES -LICENSEE.-The jury were warranted in finding that the defendant was seised of the premises and in possession and control of that part of them where the accident happened. It appeared from the defendant's own testimony that he was actually the landlord and had collected the the rents since 1877. Dainty v. Brocklehurst, 3 Exch. 207. He spoke of having got possession, that is, as we understand it, of the whole premises; and there was evidence that he assumed to bave control over the well into which the plaintiff's intestato fell. There was also evidence that the sub-lessees the premises had surrendered to the defendant's le8see before the latter surrendered to the defendant. Amory v. Kaunoffsky, 117 Mass, 351, and cases cited. If there was any technical defect in the surrender of the sub-lessees, the mere fact that there was a formal and unasserted right outstanding would not prevent the defendant's being chargeable to the same extent as if there had been no flaw in his right of possession. We assume that the defendant let the tenement, from which the plaintiff's intestate was coming at the time of the accident, when the premises were in their present condition, and therefore stands in the same position toward the public as if he himself had put the premises in that condition before the lease. The plaintiff's intestate went to the tenement referred to to stop a disturbance of the peace which was taking place there, as he had a right to. Gen. Stats., ch. 23, $ 1; Pub. Stats., ch. 34, § 1. He seems also to have been invited by the occupant, whose son was makivg the trouble. He arrested the sou, but as the arrest does not appear to have affected his course iu leaving the place, his right to recover would not be affected if the arrest was unlawful. Fle came on the premises lawfully, and could lawfully leave them. Under the in. structions of the court, the jury must have found that the intestate was using the passageway by the defendaut’s invitation. That is to say, that the intestate had a rigbt to understand from the appearance of the premises that the intended mode of approach to the tenement in question was over the open space where the well was; and the evidence warranted the finding to that extent. If the appearance of the premises is such as to point out a certain open space as the mode of approach, while it may not be the defendant's duty to take care of the whole open space as an approach, his duty to keep safe the approach offered, whatever it is, is as great as if it were a wrought avenue. And

although the jury should regard less than the whole towns were first added to the list of preferred credispace as the approach proper, yet they would be at tors, the reason was expressed to be “ so that county, liberty to find, from the absence of any marks defining city, or town taxes shall be entitled to the same priorand separating the approach proper from the rest of ity or preference as State taxes are now entitled to in the space, that an exceptional danger outside the for cases of insolvent debtors; ” and that although these mer and in the latter made the approach unreason

words are omitted in the Public Statutes, we may ably dangerous. See Barnes v. Chicopee, ante ; White properly recur to tbem for the purpose of construing v. France, 2 C. P. D. 308; 21 Eng. Rep. 305. To put it the statute as it now stands. The provisions of the in another way,

the jury had a right to find that the Public Statutes were certainly intended as a re-enactplaintiff was properly where he was. Gilbert v. Nagle, ment, without change in the law as it previously ex118 Mass. 278. The defendant argues that the plaintiff isted. Drew v. Streeter, 137 Mass. It was the intenwas not using due care, because coming to an obstacle tion of the commissioners, as stated by them, to exfifteen inches high in the dark,and stepping upon it, he press in the text of the revision the existing laws actheu stepped forward and fell into the well. The jury, cording to their understanding of them in such a manwho regarded the well as making the passage danger ner that no existing rights should be changed. When ous, may have considered that the plaintiff had a right there is substantial doubt as to the meaning of the to assume that no such danger would be allowed to language used in the Public Statutes, the statutes, as beset the way. We cannot say, as matter of law, that they previously existed, afford therefore a most valuthey were wrong. Severy v. Nickerson, 120:Mass. 306; able guide in their construction. But when language Fox v. Sackett, 10 Allen, 535; Lawless v. Connecticut is clear, we cannot look to the earlier statutes to see if River Railroad, 136 Mass. 1. Leavoyd v. Godfrey. an error has been made by the Legislature in its un. Opinion by Holmes, J. (See 19 Alb. L. J. 267.-E1.] derstanding of them, as there is no room for the office [Decided Jan., 1885.)

of construction. Lewis v. United States, 92 U. S. 6:21.

Even if the meaning it has affixed to the earlier statTRUST AND TRUSTEE-FUNDS MAY BE FOLLOWED

utes is different from tbat we should attribute to MISAPPROPRIATION.–Those who receive trust prop

them, that which it has adopted, if clearly expressed erty from a trustee in breach of his trust become by the Public Statutes, is controlling. If the language themselves trustees thereof, if they have notice of the

of the statute, as it now exists, were susceptible of trust. So when a trust fund is employed to purchase,

two constructions, an argument drawn from the statin whole or in part, a particular piece of property, so

ute as it was formerly expressed (should wo adopt the long as the trust fund can be identified it may be fol- meaning given to it by the plaintiff) would be conclulowed into the hands of any one purchasing with no

sive. United States v. Bowen, 100 U. S. 508. But it tice, as he has made himself an accomplice in the orig. impossible for us to say that the explicit language used

in the revision was not so used for the very purpose of inal wrongful act. The property which has been substituted for the fund is itself impressed with the trust removing any doubt which might have been caused by originally imposed upon the fund. But it is necessary

the expression in the statute of 1862 relied on by the that such property should be pointed out and identi- | plaintiff. Bent v. Hubbardston. Opinion by Depfied. When the property of an unfaithful trustee is augmented by the incorporation into his own property (Decided Dec., 1884.] of trust funds, and with his property thus augmented

CEMETERIES-EASEMENT OR FEE - ALTERATION BY he makes purchases or conveyances, those dealing

CITY-RIGHTS OF OWNER.-It has been said that rights with him, even if they know him to be an unfaithful

of burial in public burial grounds are peculiar and are trustee, cannot be held to he trustees of property

very dissimilar to rights in pews; that they are so far which cannot be connected with the trust fund. If public that private interests in them are subject to the one knows that a purchase is made from him with the

control of the public authorities having charge of po. specific funds of an estate wrongly misappropriated, lice regulations. Sohier v. Trinity Church, 109 Mass. he may be compelled to repay that which he thus re

1, 21. Seo Pub. Stats., ch. 82, s 15. It has been held, ceived. Trull y. Trull, 13 Allen, 407. But if he re

in the case of a sale by plan, that the fee of the ways ceives it, not as a distinct fund, and with no knowl

remained in the owner of the cemetery who retained edge that would identify it as forming a part of the

general charge of the grounds. Seymour v. Page, 33 trust fund, his general knowledge that the party pay. Com. 61. Finally, apart from any peculiar principles ing wrongfully used trust funds would not render him applicable to cemeteries, it is to be borne in mind as a thus responsible as trustee. Howard v. Fay. Opinion general proposition that a reference to a plan does not by Devens, J.

necessarily add to or enlarge the easements conveyed [Decided Dec., 1884.]

by the deed. Williams v. Boston Water Power Co.,

134 Mass. 406, 416. Taking all these considerations into INSOLVENCY

account, we should hesitate to decide that the plaintOF STATUTE. - It is provided by the Pub. Stats.,ch. 157, iff could have any standing in equity to complain of $ 104, that in the order for a dividend on an insolvent

alterations made in good faith for the general improveestate, “the following claims shall be entitled to pri- ment of the cemetery,and not impairing the value of his ority, and to be paid in full in their order: First, all lot, or his means of access to it. If he has any such debts due to the United States and all debts due to right, it is inter apices juris, and when the master and taxes assessed by this State, or any county, city finds that the pecuniary loss to him is nothing, and or town therein." We concur in the plaintiff's view that the injury or damage, if any, is “wholly one of that the taxes collected by the insolvent as town col sentiment and temper of so slight a character as to be lector ceased to be taxes co nomine, and constituted a

counted among the trifles which the law does not redebt due by him to the town. The words “ debts due gard,” and when it further appears that the plaintiff to" and “taxes assessed " being connected conjunc-bas lain by and taken no other action than to protest, tively in the statute, it would not seem possible to while “the city has expended in the work in question construe it in any other way than as providing that

a large sum of money manifestly to the general imthey are alike preferred debts. They cannot be limi

provement and benefit of the cemetery, and the cost of ted to debts due for taxes assessed from those to

removing or opening the wall and terrace across the whom they are assessed. The plaintiff urges that when avenue would largely exceed the amount or value of by the Stat. of 1862, ch. 183, § 11, counties, cities, and

the plaintiff's individual interest in the premises,”

ens, J.


« PreviousContinue »