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of a traveller; one who is a mere temporary lodger, in ties of an iupkeeper. An innkeeper is bound to take distinction from one who engages for a fixed period at in all travellers and wayfaring persons, and to entera certain agreed rate. The main distinction is the tain them, if he can accommodate them, for a reasonafact that one is a wayfarer, or transiens; aud it mat ble compensation; and he must guard their goods with ters not how long he remains provided he assumes this proper diligence. Bac. Abr. tit. Inn and Innkeeper," character." 7 Am. Dec., note to Clute v. Wiggins, C; Story Bailm., $ 476. 451.

Now if the defendant had been aware of the purIn these definitions the prominent idea is tbat a pose of the plaintiff in applying for a room, could he guest must be a traveller, wayfarer or a trausieut not have refused to receive him into his house? Nay, oomer to an inu for lodging and entertainment. It is more, if the plaintiff had been received by the clerk, not now deemed essential that a person should have and a room had been assigned him, could not the decome from a distance to constitute a guest. “Distance fendant, on learning the purpose for which the room is not material. A townsman or neighbor may be a bad been taken, have incontinently turned the plainttraveller, and therefore a guest at an inn as well as he iff and the woman with him into the street, or have who comes from a distance or from a foreign country.” called the police and had them arrested ? It seems to IValling v. Potter, 35 Conn. 183.

us there can be no doubt of the right of the defendant Justice Wilde says, in Mason v. Thompson, 9 Pick. thus to have treated the plaintiff. But if the plaintiff 284, that “it is clearly settled that to constitute a was a guest, and entitled to the rights and privileges guest in legal contemplation it is not essential that he of a person having that status at the hotel, he could should be a lodger or have any refreshment at the inu. not have been turned into the street, though his profliIf he leaves his horse there, the innkeeper is charge- gate conduct was outraging all decency and ruining able on account of the benefit he is to receive for the the reputation of the hotel. keeping of the horse.”

The questions which have frequently come before Judge Bronson, in commenting on this case in Grin the courts for consideration were whether a person, nell v. Cook, 3 Hill, 483-490, says where the owner of a upon the facts of the case, was a traveller or tempoborse sent the animal to an inn to be kept, but never rary sojourner, so as to be deemed a guest, or whether went there himself, and never intended to go there as he was to be regarded as a boarder, or one at the hotel a guest, it seemed but little short of downright absurd as a special customer. These questions are elaborately ity to say that in legal contemplation he was a guest. examined in some of the cases above cited; also in Mc. On principle it would seem that a person should him Daniels v, Robinson, 26 Vt. 316; Berkshire I'oolen Co. self be either actually or constructively at the inn or v. Proctor, ï Cush. 417; Norcross v. Norcross, 53 Me. hotel for entertainment in order to establish the rela- 163; Pinkerton v. Woodward, 33 Cal. 557; Ilancock v. tion of landlord and guest.

Rand, 94 N. Y. 1; Smith v. Keyes, 2 T. & C. 650; Fitch In Atkinson v. Sellers, 5 C. B. (N. S.) 442, ('ockburn, v. Casler, 17 Hun, 126; jcDonald v. Edgerton, 5 Barb. C. J., remarks: “Of course a man could not be said to 560; Shoecraft v. Bailey, 25 Iowa, 554; Manning v. be a traveller who goes to a place merely for the pur Wells, 9 Humph. 746. pose of taking refreshments. But if he goes to an inn It seems to have been taken for granted in the court for refreshments in the course of a journey, whether below that the plaintiff was a guest at the hotel. But of business or of pleasuro, he is entitled to demand re the learned County Court held tbat section 1725, Rev. freshment and the innkeeper is justified in supply- Stat., requires the guest to deliver his money to the ing it."

innkeeper himself, or to a clerk having authorIf a traveller have no personal entertainment or ro ity from the innkeeper to receive it. As it did not freshment at an inn, but simply care and food for his appear that the clerk in this case had such authority, horso, he may be a guest, for ho makes the inu his tem

the defendant was relieved from responsibility for the porary abode-his home for the timo being. Ingulsbee | money lost by the clerk. We should hesitate to affirm v. Iood, 36 Barb. 452; Coykendall v. Eaton, 55 id. 188. the correctness of this view of the law. On the conAnd while the definition of guest has been somewhat trary, wo think a traveller, when he goes to a hotel at extended from its original meaning, it does not include night, and finds a clerk in charge of the office, assignevery one who goes to an inn for convenience to ac

ing rooms, etc., has the right to assume that such complish some purpose. If a man or woman' go to clerk represents the proprietor, and has authority to gether or meet by coucert at an inn or hotel in the take charge of money which may be handed him by a town or city where they reside, and take a room for guest for safe-keeping. But still, in the view which no other purpose than to have illicit intercourse, can we have taken of the character of the plaintiff, and it be that the law protects then as guests? Is the ex that he was not a guest at the hotel, this error of the traordinary rule of liability which was originally court is immaterial. On the whole record the judgadopted from the considerations of public policy to ment is right, and must be protect travellers and wayfarers, not merely from the

Afirmed. negligence but the dishonesty of innkeepers and their servants, to be extended to such persons? If so, TLIATION CEMETERIES NOT EXEMPT FROA1 then for a like reason it should protect a thief who

ASSESSIENTS. takes a room at an inn and improves the opportunity thus given to enter the rooms and steal the goods of OHIO SUPREME COURT, JANUARY TERM, 1884. guests and boarders. We do not think that the relation of innkeeper and guest can or does arise in the

LIMA V. ('EMETERY ASSOCIATION.* cases supposed. One whose status is a guest is a trav An incorporated cemetery association is not reliered from eller or transient comer who puts up at an inn for a

assessment for a street improvement by a statutory prolawful purpose to receive its customary lodging and en

vision exempting its lands from taxation, such exemption tertainment. It is not one who takes a room solely to

being regarded as confined to taxes as distinguished from

local assessments. commit an offense against the laws of the State. So

While the lands of an incorporated cemetery association, so upon the facts detailed by tho plaintiff himself we have no hesitation in saying that he was not a guest at

far as exempted, cannot be sold to pay an assessment for the hotel within the legal sense of the term. The re

the improvement of a street, the municipal corporation lation of landlord and guest was never established be

may enforce the assessment by such remedies as the stattween them. We feel the more confidence in the cor

ute and courts of equity afford. rectuess of this conclusion when we consider the du

*S. C., 42 Ohio State Reports, 128.

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RROR to the Court of Common Pleas. Reserved many years been in constant and active exercise in in the District Court of Allen County.

every part of the State, and was perfectly understood In 1882, Lima, a city of the fourth grade of the sec by every member of the convention. The popular as ond class (Rev. Stats., $ 1548), made an assessment by well as legal signification of this term had always indithe feet front, amounting to $318.16, on real estate cated those special and local impositions upon propwithin the city belonging to the Lima Cemetery Asso erty in the immediate vicinity of an improved street, ciation, a company incorporated under the laws of this which were necessary to pay for the improvement, aud State. Rev. Stats., $$ 3571-3586. The real estate abuts laid with reference to the special benefit which such upon an alley in this city, and the assessment was property derived from the expediture of the money. made in due form by the city for grading and paving They had always differed widely from the ordinary the alley.

leries made for the purposes of general revenue.” In an action in the Court of Common Pleas of Allen There is nothing then in the Constitution forbidding county under Rev. Stats., SS 2286, 2287, to enforce the either the assessment of such property or its exempassessment, the association answered that the lands tion from assessment. The words of the Constitution “are, and for a long time, to wit, before the making of authorizing the exemption, assuming that they extend said improvement, bave been used exclusively as a to an assessment, are strictly permissive. May in this graveyard and ground for burying the, dead, and that case is not to be read shall. By the general terms of said lands are not held with a view to profit, or for the section 2264 the property of the associatiou is within purpose of speculating on the sale thereof, and that said the assessment, and it is simply a question of conlands are not taxable, and that the same are not on the struction whether it is taken out of the general words tax duplicate for taxation."

by the other provisions. But applying the well-settled The court overruled a demurrer to the answer, and rule for the construction of provisious exemptiug subsequently dismissed the petition; and a petition in property from such burdens, that is, that they are to error having been filed in the District Court, that court be strictly construed (Cincinnati College v. State, 19 reserved the cause for decision by this court.

Ohio, 110; State v. Mills, 34 N. J. L. 177) we are reD. J. Cable, for plaintiff in error.

quired by the clear weight of authority to hold that

the exemption in our statutes of burying grounds J. F. Brotherton and 1. Pillars, for defendant in from taxation (Rev. Stats., $S 2732, 3571, 3578) has rela

tion to taxation for revenue purposes, and does not OKEY, J. A municipal corporation insisting upon the

extend to an assessment for a local improvement like right to impose an assessment should be prepared to

that in question here. Under similar provisions such show that such power has been clearly granted by stat

is the holding in New York: Buffalo City Cemetery v. ute; but authority for such purpose being shown in gen

Buff'ulo, 46 N. Y. 503, 506, cited in Roosevelt Hospital eral terms, whoever insists that his property is exempted

v. Mayor, 84 id. 108, 115; People v. Davenport, 91 id. from the burden, will be required to support his claim

574, 586; Reclamation Dist. v. Goldmun, 61 Cal. 205, by a provision equally clear. Here authority to levy

208. In Marylaud : Alexander v. Baltimore, 5 Gill, 396; the assessment is clearly granted in general terms

Baltimore, v. Greenmount Cemetery, 7 Md. 517. In (Rev. Stats., $ 2261), and whether it is shown by the

Massachusetts: Boston, etc., Soc. v. Boston, 116 Mass. cemetery association that its property is exempted

181; S. (., 17 Am. Rep. 153. In New Jersey: Paterfrom the assessment is the only question for deter

son v. Society, etc., 24 N. J. L. 385; State v. Newark, 27 id. 185;


ute v. Newark, 35 id. 157. mination.

latter 1. It is claimed that suth exemption is implied from

case, though reversed in 36 id. 478, it still authority the provision limiting the assessment to twenty-five

upon the point to which it is here cited (State v. Elizaper cent of the value of property as assessed for taxa

betn, 37 N. J. L. 330), and Iloboken v. North Bergen, 43

In tion (Rev. Stats., $ 2270) inasmuch as the property of

id. 146, is consistent with the preceding cases.

Pennsylvania: Northern Liberties v. St. John's Ch., 13 the association cannot bo assessed for taxation. Rev. Stats., S$ 2732, 3571, 3578. This objection was held to

Penn. St. 104; Pray v. Northern Liberties, 31 id. 69; be fatal in First Presb. Ch. v. Fort Wayne, 36 Ind. 338;

Crawford v. Burrell Tp., Greensburgh v. Young, 53 id. Matter of Hebrew Society, 70 N. Y. 476. But the diffi

219, 280. The latter decisions are not incousistent with culty encountered in the Indiana case is obviated in

the cases cited. this State by Rev. Stats., $ 2:269, in which the course

Iu Olive Cemetery Co.v. Philadelphia, 93 Penu. St. 129, to be pursued by counsel in such a caso is pointed

it appeared that by the charter of the cemetery comout.

pany the property was “exempt from taxation except2. The Constitution provides: “ Laws shall be passed

ing for State purposes.” The court properly said that taxing by a uniform rulo

all real and per

“the rule is well settled that an exception in a statute sonal property, according to its true value in money :

excludes all other exceptions. Miller v. Kirkpatrick, but burying grounds * may by general laws be 5 Casey, 226. In Virginia: Orange & A. R. Co. v. Alexexempted from taxation.” Art. 12, $ 2. And by Rev.

andria, 1 Gratt. 176. In Rhode Island : Second Univ. Stats., $S2732, 3571, 3378, as we have seen, burying

Soc. v. Providence, 6 R. 1. 236; Matter of College Street, grounds-cemeteries-aro exempted from “ taxation."

8 id. 476; Beals v. Rubber Co., 11 id. 381; S. C., 23 Am. It is insisted that this exemption embraces assess

Rep. 472. In California: Emery v. Gas Co., 28 Cal. ments. True, in a general senso, a tax is an assess

345; Reclamation Dist. v. Goldman, supra. Iu Indiment, and au assessment is a tax, but there is a plain

ana: Palmer v. Stumph, 29 Ind. 3:29; First Presb.Ch. v. distinction between them. The Constitution provides:

Fort Wayne, supra; Marks v. Trustees, 37 Iud. 155. In “The General Assembly shall provide for the organi

Illinois : Illinois & 11. Canal v. Chicago, 12 Ill. 403; zation of cities and incorporated villages by general

Peoria v. Kidder, 20 id. 351; Pleasant v. Kost, 29 id. laws, and restrict their power of taxation, assessment,

490; People v. Graceland Cemetery Co., 86 id. 336. In borrowing money, contracting debts and loaning their

Iowa: Sioux City v. School Dist., 55 Iowa, 150. In credit, so as to prevent the abuse of such power." Art.

Michigan : Lefevre v. Detroit, 2 Mich. 586. In Ken13, § 6.

tucky: Broadway Baptist Ch. v. McAtee, 8 Bush, 508; In Ilill v. Iligilon, 5 Ohio St. 243, Ranney, J., in re

Louisville v. Nerin, 10 id. 549. In Kansas: Paine v. ferring to the insertion of the word assessment in the Spratley, 5 Kans. 525. In Connecticut: Bridgeport v. organic law, by the convention which framed that in Railroad, 36 ('oni. 255. In Louisiana: Crowley v. strument, took occasion to say: “This power bad for

Copley, 2 La. Amn. 329; Lafayette v. Male Orphan Asy


lum, 4 id. 1; Yeatman v. Crandall, 11 id. 220; Rooney propriate remedy as equity may afford (2 Dill. Mun. v. Brown, 21 id. 51. Iu Missouri: Lockwood v. St. Corp., § 822) without in any way disturbiug the Louis, 24 Mo. 20; St. Louis Public Schools v. St. Louis, resting place of those reposing iu “the city of the 26 id. 468; Sheehun v. Good Samaritan Hospital, 50 id. dead.” 155; S. C., 11 Am. Rep. 412. In Ohio: crmstrong v.

Judgment reversed. Athens Co., 10 Ohio, 235; Cincinnati College v. State, supra; North. Ind. R. Co.·v. Connelly, 10 Ohio St. 159; Kendrick v. Farquhar, 8 Ohio, 189; Hill v. Higilon,

UNITED STATES SUPREME COURT ABsupru; Jatheny v. Golden, 5 Ohio St. 361; Gerke v.

STRACT. Purcell, 25 id. 229; Humphries v. Little Sisters, 29 id. 201; Cleveland Library Association v. Pelton, 36 id. 253. PLEADING-CONDITION PRECEDENT - ALLEGATION And see generally as to cemeteries, Price: v. llethodist AND DENIAL-Iowa CODE.- A plaintiff having alleged Ch., 4 Ohio, 515; Hullman r. IIoncomp, 5 Ohio St. 237 ; general performance by him of his obligations under a 12 Moak Eng. Rep. 605; 2 Wait Act. & Def. 127, 1:33; 1 contract, a denial by the other party in his answer of Am. & Eng. Corp. Cas. 267, 512; 2 Bish. (fr. L., SS 1188, “each and every allegation in the petition,” will not, 1190. The sole exception to the cases sustaining such under the Iowa (ode (which regulates pleading and assessment as not within an exemption from taxation, practice in the Federal courts in that State), put in isif indeed an exception (Hlale v. Kenosha, 29 Wis. 599 ;

sue a condition precedent, without performing which Dalrymple v. Jilwaukee, 53 id. 178) is found in Wis

the plaintiff would have bad no right of action. In consin.

Mayes v. Turley, 60 Iowa, 107, the plaintiff averred in 3. It is provided that the association may hold “not his petition that he was the duly appointed, qualified, exceeding one hundred acres of land, which shall be and acting administrator of the estate, etc. The deexempt from execution * if used exclusively fondants' answer said they denied each and every alfor burial purposes, and in no wise with a view to legation in said petition contained. It was held by tho profit.” Rer. Stats., $ 3571. It does not appear how court that the jury should have been instructed that much land this association has, but let it bo assumed the denial being insufficient, they could not take nofor the present that the quantity is less than one hm tice of it, and they should therefore consider it admitdred acres. Wo agree that this exemption is to be ted that the plaintiff was duly appointed and qualified taken in its most comprehensive sense, and henco administrator. So in Stier v. City of Oskaloosa, 41 there cannot be a salo of such lands under any legal lowa, 351, it was held that a bare denial, in the answer process whatever.

In view of this it has been thought of the averment to the petition, that the defendant that Louisville v. Verin, supra; S. ('., 19 Am. Rep. 78,

was a corporation, does not put that fact issue. To is an authority for holding that the exemption defeats the same effect are the following cases: ('oates v. Gathis assessment. That was an action to euforco an as lena & ('. U. R. ('0., 18 lowa, 277; Blackshire v. Iowa sessment on a lot in Jefferson street, Louisville, for re

Homestead ('o., 39 id. 6:2-4; Gates v. Carpenter, 43 id. grading and repaving the sidewalk along the front of 152. No distinction can be drawn betweeu the applithe lot. The judge delivering the opinion stated the fact cation of the rule to the cases mentioned in section to bo that “the lot was conveyed to the city in 18:34, :27 16 and that specified in section 2715; and upon such to be held in trust for the use of the Roman Catholic

a question wo feel bound to adopt the construction of congregation in Louisville as a burying ground, and the State ('ode which bas been established by the dehas been filled with graves for more than twenty years, cisions of the Supreme ('ourt of Iowa. Ilulferty v. and has never been used since 1834 for any other pur

Wilmering. Opinion by Matthews, J. pose than a graveyard; and it is submittod that no

[Decided Jan. 5, 1885. ] revenue is derived from it, and that the Rt. Rev.

JURISI)ICTION Bishop Mc('losky, who now holds tho title as trustee,

FOURTEENTII AMENDMENT - CLASS has no funds in his hands belonging to the trust with


STATE.- (1) which to pay the assessment." The Legislature had

This court cannot pass upon the conformity of not granted authority to remove the bodies, nor had

law with the requirements of the ('onstithe city assumed to exerciso such authority, and the

tution of the State in which it was enacted. (2) court held that there was no authority to enforce the

('lass legislation, discriminating against some and favassessment in that suit.

oring others, is prohibited by the fourteenth ameudAud see latter of Jayor, 11 Johns. 77, and Ilbany

ment to the Constitution of the United States; but Street, 11 Wend. 150. But here, for aught that appears

legislation which, in carrying out a public purpose, is in the record, the association has funds to pay the as

limited in its application, if within the sphero of its sessment, and indeed for aught that appears it has

operation it affects alike all persons siunilarly situated, lands not occupied by graves exceeding one hundred

is not within the amendment. (3) Neither the fouracros in quantity. It does not appear that the associa

teenth amendment, nor any other amendment to the tion is without the means to pay the assessment, and

Constitution of the United States, was designed to incertainly we could not assume that it will remain terfere with the power of a State, sometimes termed its without funds. Although the association is not strictly

polico power, to prescribe regulations to promoto one for mere profit, nevertheless it is empowered by

the health, peaco, morals, education, or good order of the statute to do, at its own expense, not only tho

the people, and to legislate so as to increase the indusvery work for which it is here in part assessed, but it

tries of the State, dovelop its resources, and add to its may improve and ornament its grounds in such way

wealth and prosperity. Burbier v. Connolly. ()pinion as to its officers may seem proper.

While the ceme

by Field, J. tery lauds, assuming them to be within the limitation,

[Decided (ct., 1884.] cannot be sold on any legal process, we think the city REMOVAL OF CAUSE-AVERMENT OF CITIZENSHIPmay nevertheless be able to collect the assessment, if TRISTIE INDISPENSABLE L’ARTY. – Two citizens of indeed occasion should arise for resorting to further West Virginia conveyed to a trustee certain real propproceedings in this case; for the statute plainly au erty in that State to secure the payment of notes exthorizes proceedings, both at law and in equity (Rer. ecuted by then to a Missouri corporation, which was Stats., $$ 2286, 2287), and payment, if not voluntarily subsequently dissolved, and its assets placed in the made, could doubtless bo secured by the appointment hands of a citizen of tho latter State. (pon default of a receiver, by sequestration, or by such other ap in the payment of the notes the trustee, under author




ity given by the decd, advertised the property for sale: The grantors thereupon instituted a suit in equity in one of the courts of West Virginia to enjoin the sale, making the trustee, the Missouri corporation, and the person who held its assets defendants. Upon the joint petition of that corporation and the defendant holding its assets the cause was removed to the Circuit Court of the l'nited States, and was there finally determined. Held, that sinco the trustee was an indispensable party his citizenship was material in determining the jurisdiction of the Circuit Court; and as that was not averred, and did not otherwise affirmatively appear to be such as gave the right of removal, the decree must be reversed and the cause remanded to the State court. As the trusteo and the complainants are on opposite sides of the real controversy in relation to the sale of the property, and since it does not appear affirmatively that the Circuit Court had jurisdiction by reason of the citizenship of the parties, the decree must be reversed, with directions—unless such jurisdiction upon the return of the cause shall be made to appear—to remand the suit to the State court. Coal ('o. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 id. 36; Ribon v. Railroad ('., 16 id. 146; Knapp v. Railroad, 20 id. 117; Grace v. American Ins. ('0., 109 U. S. 278; Mansfield, C. & L. M. Ry. Co. v. Swan, 111 id. 381, 382; American Bible Soc. v. Price, 110 id. 61; Barney v. Latham, 103 id. 2205; Blake v. McKim, id. 336. Thayer v. Life Associution of America. Opinion by Harlan, J. [Decided Jan. 5, 1885.]

CONTRACT-CARRYING MAIL-ASSIGNMENT OF CLAIM AGAINST GOVERNMENT-REV. STATS., $$ 3177, 3737.The St. Paul & Duluth Railroad Company, upon succeeding through a foreclosure of mortgage to the Lake Superior & Mississippi River Railroad Company, did not thereby acquire any claim the latter might have had as to such reduction of compensation for carrying the United States mailas was made by the postal department either before or after the succession of titlo; tho contract with the United States government having been made by the Lake Superior & Mississippi River Railroad Company, and there being no descriptivo words in the instrument of mortgage transferring the rights of the latter company under that contract to the mortgageos. In Erwin v. U. S., 97 U. S. 392, it was held that an assignment by operation of law to an assignoe in bankruptcy was not within the prohibition of the statute; and in Goodman v. Niblack, 102 U. S. 556, a voluntary assignment by an insolvent debtor, for the benefit of creditors, was held valid to pass the titlo to a claim against the United States. But in our opinion the prosent case is not within the principle of theso exceptions, but falls within the purview of the prohibition. It is a voluntary transfer by way of mortgage for the security of a dobt, and finally completed and made absolute by a judicial sale. If the statuto does not apply to such cases, it would be difficult to draw a line of exclusion which leaves any place for tho operation of the prohibition. So the transfer, by the same proceeding, of tho contract itself, so as to entitlo the assignee to perform the service and claim the compensation stipulated for, is forbidden by section 3737, Rev. Stat. That section is as follows: “ Sec. 3737. No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned.” The explicit provisions of this statute do not require any comment. No explanation could make it plainer. St. Paul, etc., R. Co. v. United States. Opinion by Matthews, J. [Decided Jan.5, 1885.)

PARTNERSHIP-POWER OF PARTNER TO DISSOLVEFUTURE LIABILITY—NOTICE OF DISSOLUTION.-Every partner has an indefeasible right to dissolve the partnership, even when the partners have covenanted that the partnership shall last for a fixed period, as to all future contracts, by publishing his own volition to that effect; and after such publication the other members of the firm have no capacity to bind him by any contract, although they may have a right to damages against him for his breach of the agreement. The power given by one partner to another to make joint contracts for them both is not only a revocable power, but a man can do no act to divest himself of the capacity to revoke it. Skinner v. Dayton, 19 Jobus. 513, 5:38. To the same effect are Mason v. Connell, 1 Whart. 381, and Slemmer's Appeal, 58 Penn. St. 155. All that can be required in any case is that such notice of dissolution be given as is likely to make the fact generally known locally; and when that is done, the party giving the notice has performed his duty, and any one contemplating for the first time to open dealings with the partnership must at his peril ascertain the facts. That publication in a newspaper is sufficient is not disputed by the defense, provided it appears on its face to be authoritative. Ketcham v. Clark, 6 Johns. 144; S. ('., 5 Am. Dec. 197; Graves v. Merry, 6 Cow. 701 ; S. (.., 16 Am. Dec. 471; National Bank v. Norton, 1 Hill, 572; Nott v. Iouming, 6 La. 680; S. C., 26 Am. Dec. 191; Watkinson v. Bank of Pennsylvania, 4Whart. 482; S. C., 34 Am. Dec. 521 ; Rose v. Coffield, 53 Md. 18; S. ('., 36 Am. Rep. 389. But in this case it is said the notice did not appear to be authoritative; it appeared as a local editorial item, and such items are often baseless, and may in any particular case bave no better foundation than rumor, or even suspicion. They do not bear upon their face the rerity which a notice signed by the party would import. One who derives knowledge of the fact from public notoriety is sufficiently notified (Bernard v. Torrauce, 5 Gill & J. 383; Halliday v. McDougal, 20 Wend. 81), and probably in many small communities a fact would sooner be made notorious by a notice in the local column of the county or village paper than in any other way. In a large city it might be otherwiso. But all that can be required in any case is that such notice be given as is likely to make the fact generally known locally. Vernon v. Manbattan ('0., 22 Wend. 183, 193; Lovejoy v.Spafford, 93 U. S. 130. Solomon v.Hollander. Opiviou by Cooley, C. J. [Decided Nov. 19, 1881.]

MUNICIPAL CORPORATION-HORSE FRIGHTENED BY BOULDER IN STREET-STATUTORY LIABILITY.- A city is not liable under the statuto for damages caused by the running away of a horse frightened by a large boulder which has been taken from the bed of a street and left for four or five days on one side thereof uutil it could be removed by a private party, to whom it had been given for building purposes. The statutory remody is contined to cases where the want of repair is the immediate cause of the injury; and allowing things whicb are no part of a highway to stand in it temporarily, cannot be treated as putting out of repair, which must relate to the way itself, and not to things disconnected from it. This construction of the statute is the natural and correct one. The statute does not seem to be aimed at indirect and remote mischiefs, but to those which follow from direct injury caused by the want of repair. A similar question has come up in Massacbusetts several times as to the law relating to injuries from things which did not obstruct passage, and it was held that where the damage was consequential, not on the effect of a want of repair,


but upon fright caused to a horse which ran away aud to plaintiff in the abseuce of an express agreement to damaged the vehicle or persons he was drawing, or that effect. It was sufficient for him within a reasonother analogous cases, it did not come within the rule, able time to notify plaintiff in substance that it did and the municipality was uot liable. Cook v. Mou not work satisfactorily, and that he declined to accept tague, 115 Mass. 571; Bewis v. Arlington, 114 id. 507; it. Gibson v. Vail, 53 Vt. 476; Doane v. Duu ham, Cook v. Charlestowu, 98 id. 80; Kingsbury v. Dedham, supra; Starr v. Torry, 22 N. J. L. 190; Smalley v. Hen13 Allen, 186; Keith v. Easton, 2 id. 552. The road drickson, 29 id. 371; Lucy V. Mouflet, 5 Hurl. & N. itself was not out of repair. It was in good order and 229; Grimoldby v. Wells, L. R., 10 C. P. 391; 12 Eng. passable. If the stone had any thing to do with the Rep. 451; 2 Benj. Sales (4th Am. ed. Corbin's), SS 978, action of the horse and damage to the buggy, it was by 1348; Leake Cont. 409, 8:27. McCormick, etc., Co. v. frightening the animal, and not by hurting or imped- Chesbrown. Opinion by Berry, J. (See 33 Am. Rep. ing him. But if it is admitted, and the court below 351; 25 Eng. Rep. 569.] allowed the jury so to assume, that a city is liable for [Decided Dec. 22, 1884.] leaving or allowing in its streets that which is dangerous by reason of its tendency to frighten the passing

MORTGAGE - FUTURE ADVANCES INSOLVENCY teams, the question arises how far this record presents

PREFERENCE-FRAUD.-(1) A mortgage may properly such a case. It will not do to apply any far-fetched

be made to secure future advances. Madigan v. Mead, and unreasonablo rule in such cases. It was held in 31 Minu. 94; Brown v. Kiefer, 71 N.Y. 610; Ackerthe case of Macomber v. Nichols, 34 Mich. 212, that a

man v. Ilunsicker, 85 id. 43; Boywell v. Goodwin, 31 steam engine which, according to every-day experience Conn. 71; Jones v. Guaranty & Indemnity Co., 101 U. is always a cause of terror to horses unused to meet S. 622; Jones (h. Mortg., $S 94-97. It follows that a iug it in a highway, was nevertheless not, in law or in

mortgage is not fraudulent per se, or as a matter of fact, an unlawful article to propel or draw there. And law, as respects the mortgagor's creditors, because a similar rule was applied in Gilbert v. Flint & P. M. given in whole or in part to secure such advances. (2) Ry, Co., 51 Mich. 188; S. ('., 47 Am. Rep. 592. It is Our insolvent law (ch. 1:18, L. 1881) does not have the customary in all towns to allow ditches to be dug and

effect to render mortgages fraudulent or void as rebuilding materials of all kinds and colors to be piled spects the mortgagor's creditors, on the ground that up and kept for considerable periods in tho body of the they are preferential, except in proceedings under it. street. In many, if not in most places, the right to do

Outside of such proceedings the preferences are not this can only be had by license from the corporation, per se, or as a matter of law objectionable. Smith v. and it cannot be claimed that such a license can be Deidrick, 30 Minn. 60. (3) The fact that a mortgage is granted to do a wrong or create a nuisance. Such given to secure a larger sum than is actually due from stones as that described are often used for building the mortgagor to the mortgagee, or that its condition purposes, and left in the street like other building ma

failed to describe the real character of the indebtedterials, and sometimes broken up for use or sawed for

ness or liability intended to be secured, does not necIt does not seem reasonable to hold that such essarily render the mortgage fraudulent as respects things can be allowed to await the convenience of a the mortgagor's creditors. The question still is, was person who wishes to uso them near by, and yet not to

it made with intent to hinder, delay or defraud tho await removal somewhere else. If this stone had been mortgagor's creditors? Minor v. Sheehan, 30 Minn. hauled to the place it occupied in order to be used for

419, and cases cited; Jones Ch. Mortg., $ 96. Berry v. building purposes, and left there for a considerable O’Counor. Opinion by Berry, J. time, no one would think of regarding it as an action- | [Decided Dec. 22, 1881.] able grievance. The use of streets for such purposes is JUDGMENT-ENTRY ON ORDER OF, JUDGE AFTER EXtoo common to justify the owners of horses to assume

PIRATION OF TERM—IRREGULAR.- Where the judge of it will not be allowed, and they should be prepared to a municipal court, upon the expiration of his term of guard against their animals' freaks and fears of such

oflice, vacated and ceased to occupy the same, but ordinary appearances. The stone, as is not disputed,

thereafter reduced to writing and filed a decision and was lawfully put thero in the first place, in the course

order for judgment in a caso previously tried and subof street repairs. If it was the duty of the city to see

mitted, held, that such decision and order were unauthat it was not left there indefinitely, it was equally thorized, and a judgment entered thereon may be set its right to sell or give it away, and having done so, it aside on motion. It is not enough that he had arrived could take no steps to interfere unless, at the worst, at a conclusion before his term expired; it was necesthe purchaser or donee delayed so long as to make it sary that his decision be reduced to writing and filed; unreasonable to wait longer for him. It could not be until then it was subject to revision, and could not be respousible for any delay whicb was not unreasonable. considered as determining the case. Kissam v. HamAgnew v. Corunna. Opinion by Campbell,

ilton, 20 How. Pr. 376; Ayrault v. Sackett, 17 id. 461 ; [Decided Jan. 7, 1885. ]

Putnam v. ('rombie, 34 Barb. 232. In Carli v. Rhener, 27 Minn. 292, the judge filed his decision in writing the

same hour, but after his successor qualified, and in igMINNESOTA SUPREME COURT ABSTRACT.

norance of the latter fact, and while he was still in

possession of the office and performing its duties. He CONTRACT " TO SATISFACTION ACCEPTANCE.

had not yet surrendered or vacated it. And he was The defeuse shows that in August, 1880, the plaintiff

held to be an officer de facto, and his acts ralid. That agreed to furnish the defendant “a cord-binder" in

case is clearly distinguishable from this, and the same 1881, "guaranteed to work satisfactorily.” The agree

remark applies to the case of State v. Brown, 12 Minn. ment was executory, and hence when the cord-binder

515 (Gil. 418). We think the motion to set aside the was furnished defendant had the right before finally judgment was the proper remedy, and should be accepting it to make a trial of it, reasonable as respects

granted. Grant v. Vandercook, 57 Barb. 175. Cain y. both time and manner, aud a right to reject it if it did

Libby. Opinion by Vanderburgh, J. not work satisfactorily, that is to say, satisfactorily to [Decided Dec. 2, 1884. ] him. 3 Add. ('ont. 912; Auson Cont. 285; Poll. Cont. CoXsTITUTIONAL LAW - INCORPORATION OF VIL466; Doane v. Dunham, 65 Ill. 512; Leake Cont. 281. LAGES-DELEGATION OF LEGISLATIVE POWERS.—ChapIn case upon reasonable trial it did not work satisfac ter 73, General Laws, 1883, provides for the incorporatorily, it was not necessary for defendant to return it tion of villages upon petition to the judge of the Dis.

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