Page images

ascertaining their extent it will be useful to inquire sion in other authorities. Lowell y. Boston, 111 Mass. into the principle upon which they are founded. We 464-466; S. C., 15 Am. Rep.39; U. S. v. Ames, 1 Wood. think they will be found to rest for their justification & M. 76, 88; Waddy v. Johnson, 5 Ired. Law, 333, 339; partly upon the interest which the community Jones v. Skinner, 61 Me. 25, 28; Olmsteud v. Camp, 33 large has in the use and employment of mills, and Conn. 547, 550; Chief Justice Redfield, in 12 Am. Law partly upon the nature of the property, which is often Reg. (N. S.) 498-500. And no case has been cited in so situated that it could not be beneficially used with- which it has been considered and rejected. out the aid of this power. A stream of water often Upon principle and authority therefore, independruns through the lands of several proprietors. One ently of any weight due to the opinions of the courts may have a sufficient mill site on his own land, with of New Hampshire and other States, maintaining the ample space on his own land for a mill-pond or reser validity of general mill acts as taking private property voir, but yet, from the operation of the well-known for public use, in the strict constitutional meaning of physical law that fluids will seek and find a level, he that phrase, the statute under which the Amoskeag cannot use his own property without flowing the water Manufacturing Compauy has flowed the land in quesback more or less on the lands of some other proprie- tion is clearly valid as a just and reasonable exercise tor, We think the power given by statute was in of tho power of the Legislature, having gard to the teuded to apply to such cases, and that the Legislature public good, in a more general seuse, as well as to the meant to provide that as the public interest in such rights of the riparian proprietors, to regulate the use case coincides with that of the mill-owner, and as the of the water-power of running streams, which without mill-owner and the owner of lands to be flowed cannot some such regulation could not be beneficially used. both enjoy their full rights without some interference The statute does not authorize new mills to be erected the latter shall yield to the former, so far that the for to the detriment of existing mills and mill privileges. mer may keep up his mill and head of water, notwith And by providing for an assessment of full compensastanding the damage done the latter, upon payment of tion to the owners of lands flowed, it avoids the diffian equitable compensation for the real damage sus culty which arose in the case of Pumpe!ly v. Green Bay tained, to be ascertained in the mode provided by the Co., 13 Wall. 166. Being a constitutional exercise of statute."

"From this view of the object and purpose legislative power, and providing a suitable remedy by of the statute, we think it quite manifest that it was trial in the regular course of justice, to recover comdesigned to provide for the most useful and beneficial pensation for the injury to the land of the plaintiff in occupation and enjoyment of natural streams and error, it has not deprived him of his property without water-courses, where the absolute right of each pro due process of law, in violation of the fourteenth prietor to use his own land and water privileges, at his amendment of the Constitution of the United States. own pleasure, cannot be fully enjoyed, and one must Walleer v. Sauvinet, 92 U. S. 90; Davidson v. New Orof necessity in some degree yield to the other.” Fiske | leans, 96 id. 97; IIurtado v. California, 110 id. 516; v. Framingham Manuf'g Co., 12 Pick. 68, 70-72.

Ilagar v. Reclamation Dist., 111 id. 101. In another case, decided almost twenty years later,

Judgment affirmed. he said: “The relativo rights of land owvers and mill. owners are founded on the established rule of the common law that every proprietor through whose territory NEW YORK COURT OF APPEALS ABSTRACT. a current of water flows in its course toward the sea has an equal right to the use of it for all resonable and PLEADING-PARTIES— SUBSTITUTION OF SHERIFF'S beneficial purposes, including the power of such stream INDEMNITORS—CODE Civ. Proc., § 14:21 STRICTLY for driving mills, subject to a like reasonable and bene CONSTRUED.-Section 1421 et seq. of ("ode of ('iv. Proc., ficial use by the proprietors above and below him on authorizing the substitution of the indemnitors of a the same stream. ('onsequently no one can deprive sheriff as defendants in an action brought to recover another of his equal right and beneficial use by cor personal property levied upon by him by virtue of an rupting the stream, and by wholly diverting it, or stop attachment or execution, or to recover damages for ping it from the proprietors below him, or raiso it ar such a levy, are new and constitute a serious and im tificially, so as to cause it to flow back on the land of portant imovation upon the law as it stood previous the proprietor abore. This rule in this Commonwealth to their enactment. Their constitutionality has been is slightly modified by the mill acts, by the well-known seriously questioned heretofore in this court, and was provision that when a proprietor erects a dam on his affirmed by us only after much hesitation and by a own land, and the effect is by the necessary operation divided court. This statute is clearly in derogation of of natural laws that the water sets back upon some the common law and common right, and by settled land of the proprietor above-a consequence which he rules of interpretation must be strictly construed, and may not propose as a distinct purposo, but cannot pre not extended beyond its express provisions and clear vent-he shall not thereby be regarded as committing import. McCluskey v. Cromwell, 11 N. Y. 593; Sprague a tort, and obliged to prostrate his dam, but may keep v. Birdsall, 2 Cow. 419; 4 Mass. 145, 473. If the terms up his dam, paying annual or gross damages, the in which it is couched are susceptible of two interpreequitable assessment of which is provided for by the tations, that one must be adopted which conforms acts. It is not a right to take and use the land of the most nearly to the rules of the common law and enproprietor abore against his will, but it is an authority chroaches the least upon the individual rights affected to use his own land and water privilege to his own ad by it. The propriety of the legislation in question was vantage and for the benefit of the community. It is a sought by the codifiers to be made to appear by a reprovision by law for regulating the rights of proprie ference to the case of Peck v. Acker, 20 Wend. 605, tors on one and the same stream, and from its rise to where it was held that an officer sued for an official its outlet, in a manner best calculated on the whole to act has the right to appoint his own attorney, and promote and secure their common rights in it.” Bates manage the defense, notwithstanding he has been r. Weymouth Iron ('0., 8 Cush. 518, 552, 553.

fully indemnified by the party whose process he was Other opinions of Chief Justice Shaw illustrate tho executing, and such party desires to conduct the desame view.

Williams r. Nelson, 23 Pick. 141, 143; fense. When it is considered that such party can French v. Braintree Januf'g Co., id. 216, 218, 221; easily attain the same advantage in all cases where it Cary v. Daniels, 8 Metc. 466, 176, 177; Murdock v. Stick- | is proper that he should be exclusively entitled to deney, 8 Cush. 113, 116; Goulil v. Boston Duck Co., 13 feud, by inserting a condition to that effect in his Gray, 442, 450. It finds more or less distinct expres bond of indemnity, the reason hardly seems sufficient

to justify so radical an encroachment upon the rights that the proposed erections would occasion but a triof a party whose property has been unlawfully seized. fling obstruction of the streets, as this was not for the Preston r. Yates, 17 Hun, 92. Tbe act is one of doubt trustees or the court to determine. After a careful ful propriety, and the cases must be rare when any examination of the provisions of the act of 1867, ch. useful purpose cau be served by depriving a party of 399, we think it is very manifest that while the Legishis lawful remedy against the individual who injured lature intended to confer absolute authority for the him, and compelling him to litigate his demands with building of the bridge through such streets as might persons who were not apparently participants in the be required upon payment of compensation to abutwrong out of which his action aroso, and as to whose ting owners, it is also apparent that they designed to liability and its extent many embarrassing questions protect the public streets and the crossing of the same, may arise. A wide latitude is conferred by the law by positive and clear restrictions. These restrictions upon the court in granting or refusing the substitu are equally applicable to all streets which necessarily tious provided for by the act, and many cases must were to be crossed by the bridge, and no distinction arise where, in the exercise of a sound discretion, the can be made in favor of any portion of the bridge or substitution applied for should be refused. Voyes v. its approaches which authorizes a disregard of the Davidson. Opinion by Ruger, C. J.

statute. It must be interpreted according to the or[Decided Jan. 20, 1885. ]

dinary rules applicable to the construction of statutes,

and we are not at liberty to consider the advantages JUDICIAL SALE – ATTACHMENT - BONA FIDE PUR arising from the plan of the relators, or the necessity CHIASER-CODE Cıv. PROC., 1370 -- EXECUTION MUST and importance of carrying it into effect for the benefit CONFORM TO STATUTE.—The court in both cases pro of the public. Such considerations can have no place in ceeded upon proof that the defendant, Reily, was a determining questions of the character of the one now resident of the State of New York, and had departed before us. While property devoted to one public use therefrom with intent to defraud his creditors, or to may be applied to another, this can only be done when avoid the service of a summons, or kept himself con express authority is given for that purpose by the cealed therein with liko intent. The judgment and clearest provisions of law. Streets must remain and attachment were therefore in all respects regular, and be used as such and for no other purpose until otherjustified the issuing of an execution against the prop wise directed by legislative enactment. Without this erty of the defendant. But the statute prescribes the no authority exists for their invasion, or appropriaform of the execution where a warrant of attachment

tion for a different purpose. The authority claimed has been issued, and levied by the sheriff. Code of by the relator was not conferred by the act in quesCiv. Proc., $ 1370. The execution issued did not con tion, and the remedy is by application to the Legislaform to the statute. It commanded the sheriff to col ture, and not to the court. People v. Thompson. Opinlect the judgment out of the attached personal prop ion by Miller, J. erty of the judgment debtor. and if that was insuffi

[Decided Jan. 20, 1885.) cient, out of his attached real property, whereas the

EMINENT DOMAIN-GENERAL RAILROAD ACT-RIGHT case was one under the second subdivision of section 1370, by which the execution must go, first, against the

TO APPEAL FROM AWARI)-PRACTICE-ORDER NOT APattached personal property, second, against the other

PEALABLE.- (1) In pursuance of an order of the Supersonal property of the judgment debtor, and lastly,

preme Court, confirming the award of commissioners against the attached real property. We are of opinion

in proceedings under the General Railroad Act, to that the execution for this reason was void. The

condemn lands belonging to the city of New York for

railroad purposes, the railroad company paid over the statuto is peremptory that executions in the cases specified “must require” the sheriff to satisfy the

sum awarded to the city chamberlain, who gave his judgment in the way pointed out. The evident inten

receipt for the same. Held, that as it did not appear tion of the subdivision was to prevent resort to the

that the city had used, or in some way interfered with

the money, real estate of an absconding or concealed debtor, resi

such payment and receipt did not deprive dent here, for the satisfaction of a judgment obtained

the city of its right to appeal from the order. Act of in an action in which an attachment had been issued

1850, ch. 110, $ 17. (2) Section 18 of the act provides, against him, and levied upon his real estate, util

that after the entry of the order of confirmation and after the remedy against his personal property, both

the payment or deposit of the award as directed, the attached and unattached, had been exhausted. This

railroad company shall be entitled to enter upon, take is in accordance with the general policy of the law,

possession of and use the land for the purposes of its founded upon reasons less forcible perhaps now than

incorporation, and that the title of the land shall then formerly, but which it is nevertheless the province of

vest in it; and notwithstanding this, either party may the Legislature to preservo. It is well settled that the

appeal from the order of the confirmation to the Gentitle of a purchaser in good faith of property sold on

eral Term. If there the order shall be reversed, and a execution is not affected by mere irregularities in the

new appraisal ordered, the title and possession shall process. But under a void process no title can be ac

remain in the company, and if upon the new appraisal,

the award should be diminished, the land-owner must quired, and the position of a bona fide purchaser under a void process is no better as against the real owner of

refund the difference, and if it be increased, the comthe property, than that of ono who purchased with

pany must pay the difference. But in any event, after full knowledge of its invalidity. Wood v. Colvin, 2

the payment or doposit of the first award, the landHill, 566. Place v. Whitaker. ()pinion by Andrews, J.

owner has, during the corporate existence of the com[Decided Jan. 20, 1885. ]

pany, lost all rig estate, and interest in the land, as

well as the use thereof. Matter of the N. Y., W. S. & MANDAJUS COMMISSIONERS OF PUBLIC WORKS B. R. Co., 94 N. Y. 287. The statute notwithstanding PERMIT TO BRIDGE COMPANY.-In this case the writ of the company takes possession of the lands and pays or mandamus issued to the commissioner of public works deposits the amount of the award, gives the right of and the department of parks of tho city of New York appeal to both parties; and a construction which requiring them to grant a permit to the board of trus. would confine that right to the railroad company alone tees of the New York Bridge Company to enter upon would be most unjust. (3) This court has no jurisdiccertain streets and erect columns therein to support a tion to hear the appeal from the order of reversa). platform for the bridge over the streets was improp Section 18 provides that on the hearing of the appeal erly granted. It could not be sustained upon the ground to the General Term, "the court may direct a new ap

[ocr errors]

praisal before the same or new commissioners in its of the United States may be extended, and Congress
discretion." It does not appear in the order appealed may therefore lawfully provide for bringing, at the
from that it was not made in the exercise of the dis option of either of the parties, all such controversies
cretion thus confided to the Supreme Court, and we within the jurisdiction of the Federal judiciary.”
cannot look at the opinion to see upon what ground "And if by the law obtaining in the State, customary
the new appraisal was ordered. In re Kings Co. Ele or statutory, they can be maintained in a state court.
vated Railway Co., 82 N. Y. 95. Besides this is a spec whatever designation that court may bear, we think
ial proceeding, and appeals to this court are allowed they may be maintained by original process in a Fed-
only from final orders in such procecdings, and this eral court, where the parties on one side are citizens
order is not final. Code, $ 190; In re Moore, 67 N. Y. of the State of Louisiana, and on the other citizens of
555; In re Ilorsfalls, id. 511; Roe v. Boyle, 81 id. 305. other States.” This court reversed the judgment of
The order does not become final, because the appraisal the Louisiana courts, and held that the application for
to be made by the new commissioners may, under sec the remoral should have been granted, and ordered
tion 18, be final and conclusive. It is nevertheless not the case to be remanded to the parish District Court,
a final order, and if the result should be that the com with directions to make the transfer. The casos of
pany will not be able to bring to this court for review Payne v. Hook, Wall. 425, and Hydo v. Stone, 20
the question of law upon which, it appears from the Ilow. 170, are to the same effect. In tho latter case
opinion of the General Term. the new appraisal was the court said, with much force and propriety, that it
ordered, it will be the fault of the law and not of this “had repeatedly decided that the jurisdiction of the
court. If however upon the new appraisal the com courts of tbe United States over controversies between
missioners should proceed upon a fundamentaliy erron citizens of different States cannot be impaired by the
eous view of the law and one that does either party in-laws of the States which prescribo modes of redress in
justice,the ingenuity of counsel may possibly discover their courts, or which regulate the distribution of their
some mode for correcting the error, and if necessary, judicial powers.” The case of Boom ('o. v. Patterson,
for procuring a review of the question in this court. 98 U. S. 403, is also in point. That was a special pro-
In re P. P. & C. I. R. Co., 85 N. Y. 489, 496. Jatter of ceeding to condomn propert.y under laws of the State
New York & Harlem. R. Co. Opinion by Earl, J. of Minnesota in the exercise of the right of eminent
[Decided Jan. 20, 1885. ]

domain, which commencing before pecial commis-
sioners to assess damages, was by appeal brought into

a court of general jurisdiction, and from thero reUNITED STATES SUPREME COURT AB

moved, rightfully as this court held, into the ('irouit

(Court of the United States. The case before us was
one renovable into the court of tho I'nited States.

TIess v. Reynolds. Opinion by Miller, J.

[Decided Jan. 5, 1885.] TOR--CITIZENSAIP.- A proceeding in a State court against an administrator, to obtain payment of a debt PRACTICE-WISCONSIN-CUSTODY OF RECORD-WRIT due by the decedent in his life-time, is removable into

OF ERROR-TO WILAT (OURT DIRECTED-STATUTE OF a court of the United States when the creditor and the LIMITATIONS—RECORI). As by the praciice of Wisconadministrator aro citizens of different States, notwith sin the record itself is remitted by the State Supreme standing the State statuto may enact that such claims Court to the inferior court from whose judgment apcan only be established in a Probate ('ourt of the State, peal was taken, a writ of error from the Supremo or by appeal from that court to some other State court. ('ourt of the United Statos should, in a proper case, bo All debts to be paid out of the assets of a deceased brought to such inferior court, though the judgment man's estate shall be established in the court to which

of the latter was the judgment which the State Suthe law of the domicile has confided the general ad preme Court directed it to enter. It is the record of ininistration of theso assets. And the courts of the the judicial decision or order of the court found in the United States will pay respect to this principle in the record-book of the court's proceedings which constiexecution of the process enforcing their judgments tutes the evidence of the judgment, and from the dato out of these assets, so far as the demands of justice ro of its entry in that book the statute of limitations bequire. But neither the principle of convenienco nor gins to run. This is a writ of error to the Circuit the statutes of a State can deprive them of jurisdic ('ourt of Wisconsin for the county of La ('rosse, and a tion to hear and determine a controversy between cit motion is made to dismiss it. The first ground of tho izens of different States when such a controversy is motion is that the writ should have been directed to distinotly presented, because the judgment may affect the Supreme ('ourt of the State, and cannot be rightthe administration or distribution in another forum fully directed to the ('ircuit ('ourt of the county. It of the assets of the decedent's estate. The contro appears that the defendant in error here was plaintiff verted question of debt or no debt is one which, if tho in the ('ircuit ('ourt of La Crosse county, and brought representative of the decedent is a citizen of a State its action against Polleys and others for relief in rodifferent from that of the other party, the party prop. gard to their obstructing the navigation of Black erly situated bas a right, given by the Constitution of river and its branches. The Circuit (ourt denied the the United States, to have tried originally or by re relief and dismissed the bill. On appeal the Supreme moval in a court of the l'nited States, which cannot ('ourt of the State reversed this judgment and delivbe defeated by State statutes enacted for the more ered an opinion that plaivtiff was entitled to relief in convenient settlement of estates of decedents. Theso the premises; and it made an order remanding the views have been expressed by this court in many cases case to the ('ircuit ('ourt, with directions “to enter wbere they were proper growds for the decisions judgment in accordance with the opinion of this (that) made. The latest of them, in which.the others are re court.' It appears by the cases cited to us, and by viewed with care, is that of Ellis v. Davis, 109 U'. S. the course of proceedings in such cases in the Wiscon485, in which the opinion was delivered by Mr. Justice sin courts, that the record itself is remitted to the inMatthews. Among the cases there cited with appro ferior court, and does not, nor does a copy of it, reral is that of Gaines v. Fuentes, 92 U. S. 10. This main in the Supreme Court. Though the judgment in court said: “The ('onstitution imposes no limitation the ('ircuit ('ourt was the judgment which the Suupon the class of cases involving controversies between preme Court ordered it to enter, and was in effeot the citizens of different States to which the judicial power judgment of the Supreme ('ourt,'it is the only final

judgment in the case, and the record of it can be to bearer, are commercial securities, possessing the found nowhere else but in the Circuit Court of La same qualities and incidents that belong to what are Crosse county. To that court therefore according to strictly promissory notes, negotiable by the law-mermany decisions of this court, the writ of error was chant. There is no reason why such bonds, issued properly directed to bring the record here for review. under the authority of law, and made payable to a Gelston v. Hoyt, 3 Wheat. 246; Atherton v. Fowler, named person, or order, should not, after being in. 91 U. S. 146. It is insisted that the writ of error was dorsed in blank, be treated by the courts as having not brought within time. Section 1008 of the Revised like qualities and incidents. That they are so reStatutes declares that “no judgment, decree, or order garded by the commercial world cannot be doubted. of a Circuit or District Court, in any civil action at Manfg. Co. v. Bradley, 105 U. S. 180. But it is conlaw, or in equity, shall be reviewed in the Supreme teuded that the word “negotiable,” in the Iowa statCourt, on writ of error or appeal, unless the writ of ute, is qualified by that clause, in the same enactment, error is brought or the appeal taken within two years which provides that bouds issued under it shall be after the entry of such judgment, decree, or order.” payable at the pleasure of the district at any time This rule is applicable to writs of error to the State before due.” These words were not incorporated into courts in like manner as to Circuit Courts. Scarbor the boud. But if the holder took subject to that proough v. Pargoud, 108 U, S. 567. In the case of Brooks vision, as we think he did, it is clear that this option v. Norris, 11 Ilow. 204, construing the same language of the district to discharge the debt, in advance of its in the judiciary act of 1789, it is said, “that the writ of maturity, did not affect the complete negotiability of error is not brought, in the legal meaning of the term, the bouds; for by their terms, they were payable at a until it is filed in the court which rendered the judg time which must certainly arrive. The holder could ment. It is the filing of the writ that removes the not exact payment before the day fixed in the bonds. record from the inferior to the Appellate Court, and The debtor incurred no legal liability for non-paythe period of limitation prescribed by the act of Con ment until that day passed. The authorities bearing grees must be calculated accordingly." This language upon this question are cited in Byles Bills (Sharswood's is repeated in Mussina v. Cavazos, 6 Wall. 355, and in ed.), ch. 1; 1 Daniel Neg. Inst., § 43 et seq. ; Chit. Bills, Scarborough v. Pargoud, supra. Though the writ of 525 et seq. In School-district v. Stone, 106 U. S. 183, error in this case seems to have been issued by the it was held in reference to similar bonds issued by clerk of the Circuit Court of the United States on the another independent school district in the same 10th day of May, 1881, and is marked by him for some county, that their recitals were not sufficiently com reason as filed on that day, it is marked by the clerk prehensive to cut off a defense resting upon the ground of the court to which it is directed, namely, the Cir that the bonds there in suit were in excess of the cuit Court of La Crosse county, as filed on the 29th amount limited by the State Constitution, and conday of that month. It is not disputed that this sequently invalid. Applying that decision to the presis the day it was filed in his office. This must be ent case, counsel for the district insists, that as these held to be the day ou which the writ of error was bonds may be open to such a defense as was made in brought. The judgment which we are asked to review School-district v. Stone, they cannot be deemed negoby this writ was entered in the Circuit Court of La tiable by the law-merchant; in other words, that the Crosse county, May 24, 1882. It is signed by the judge negotiability of the instrument ceases whenever the on that day, and is expressly dated as of that day, and maker is permitted, as against a bona fide holder for it is marked filed on that day over the signature of the value, to establish a defense based upon equities beclerk of that court. This is the judgment, the entry tween the original parties. But such is not the test of the judgment, and on that day tho plaintiff in error prescribed by the statute defining the jurisdiction of had a right to his writ, and on that day the two years the Circuit ('ourts of the United States. If a promisbegan to run within which his right existed. It seems sory note is expressed in words of negotiability, the that the courts of Wisconsin, either by statuto or by right of the holder of the legal title to invoke the jurcustomary law, keep a book called a judgment docket. isdiction of the proper Circuit Court of the United In this book are entered, in columns, the names of States is not affected by the citizenship of any prior plaintiffs who recovered judgment, and the defend-holder, or by the circumstance that the party sued asants against whom they are recovered. In another serts, or is able to make out, a valid defense to the accolumn is entered the amount of the principal judg tion. The Constitution of Iowa provides that “every ment and the costs and the date of the judgment act shall embrace but ono subject, and matters propitself. This record is kept for the convenience of par erly connected therewith, which subject shall be exties wbo seek information as to liens on real estate or pressed in the title. But if any subject shall be emfor other purposes. This docket however is made up braced in an act which shall not be expressed in the necessarily after the main judgment is settled and en title, such act shall be void only as to so much thereof tered in the order-book, or record of tho court's pro as shall not be expressed in the title.” The title of the ceedings, and it may be many days before this ab statute under which those bonds were issued is, “An stract of the judgment is made in the judgment docket, act to authorize independent school-districts to boraccording to the convenience of the clerk. It is the row money and issue bonds therefor for the purpose record of the judicial decision or order of the court of erecting and completing school-houses, legalizing found in the record-book of the court's proceedings bonds heretoforo issued, and making school-orders which constitutes the evidence of the judgment, and draw six per cent interest in certain cases. The act from the date of its entry in that book the statute of contains six sections; the fourth providing that “all limitations begins to run. It follows that the writ of school-orders shall draw six per cent interest after error in this case was brought five days after the two having been presented to the treasurer of the district years allowed by law had expired; and it must be dis and not paid for want of funds, which fact shall be inmissed. Polleys v. Black River Imp. Co. Opiniou by dorsed upon the order by the treasurer." As there Miller, J.

are two kinds of school-districts in Iowa, "district [Decided Jan. 12, 1885.]

township” and independent distriot," the latter

carved out of the former, it is contended that the title MUNICIPAL BONIS–NEGOTIABLE-IOWA STATUTE- to the act in question embraces two subjects; one reCONSTITUTIONAL LAW-SUBJECT EMBRACED IN TITLE. lating to matters in which independent school-districts -The decisions of this court are numerous to the effect alone are concerned, and the other to matters in which that municipal bonds, in the customary form, payable the township district and independent districts are



concerned. That whether school-orders, which may observation in the witness, other than it has enabled be issued for many purposes by districts of either him to form a belief or judgment thereon. Rog. Exp. kind, should bear interest or not is wholly foreigu to Test., SS 61, 62; Lawson Exp. Ev. 470; 1 Whart. Law of the borrowing of money to build school-houses in in- | Ev., S 451. In order to avoid a contract of marriage dependent districts. Iowa Code, 1873, ch. 9, tit. 12. on the ground of mental unsoundness, the party alWe are not referred to any adjudication by the Su- leged to be insane or non compos mentis must be incapreme Court of Iowa which sustains the point here pable of understanding the nature of the contract itmade. On the contrary the principles announced in self. Mere imbecility or weakness of mind, caused by State v. County Judge, 2 Iowa, 280, show that the act lisease or otherwise, will not be, when unaccompanied before us is not liable to the objection that its title by circumstances showing it has been taken advantage embraces more than one subject. The object of the of, a sufficient ground for avoiding such a contract. If constitutional provision, that court said, was “to pro the powers of the mind of the person alleged to bo non vent the union in the same act of incongruous matter, compos mentis have been so far affected by disease or and of objects having no connection, no relation,” and the decay of his faculties as to render him incapable of “to prevent surpriso in legislation, by having matter kuowing the effect of the act he is about to perform, of one nature embraced in a bill whose title expressed and of intelligently consenting to the marriago cereanother;" but that “it cannot be held with reason mony, then there is an incapacity on his part to conthat each thought or step toward the accomplish- tract. On the other hand, even if his understanding ment of an end or object should be enibodied in a sep be weak, still if tho capacity of his mind remaing to arate act; that “the unity of object is to be looked seo things at the time in their true relations, and to for in the ultimate end, and not in the details or steps form correct conclusions, the contract of marriage will leading to the end ;” and that so long as they are of be valid in the absence of fraud orimposition. Baughthe same nature, and come legitimately under ono man v. Baughman. Opinion by Horton, C. J. general denomination or object,” the act is constitu

REPLEVIN-DAMAGES-ATTORNEY'S FEES tional. The doctrines of that caso have been approved

EMPLARY DAMAGES AGAINST by the same court in subsequent decisions, and they

MORTGAGE-VOID-IIINDER AND DELAY.-In an action are decisive against the point here raised. Morford v.

to recover the possession of personal property the Uuger, 8 Iowa, 82; Davis v. Woolnough, 9 id. 101; plaintiff is not entitled to recover as actual damages McAunich v. Mississippi & M. R. Co., 20 id. 312; | attorney's fees for the prosecution of the case, when the Farmers' Ins. Co. v. Highsmith, 44 id. 331. The gen

elements of malice, gross negligence or oppression do eral subject to which this special act relates is the sys

not mingle in the controversy. In an action againsta tem of common schools. That system is maintained

sheriff to recover the possession of personal property through the instrumentality of district schools of dif

wrongfully seized by the officer under an execution in ferent kinds. Provisions in respect of those instru

his hands, the sheriff, if not guilty of fraud, malico, mentalities—those referring to the erection and completion of school-houses in independent school-dis

gross negligence or oppression in the execution of tho

process, is not liable in vindictive or exemplary damtricts with money raised upon negotiable bonds, and

ages. A sheriff in seizing goods under a writ of exeothers, to the rate of interest which all school-orders

cution is responsible in damages if he takes tho goods shall bear-relate to the samo general object, and are

of the wroug person; and if acting under color of only steps toward its accomplishment. See also Montclair v. Ramsdell, 107 U. S. 153, where this sub

process he is guilty of fraud, malice, gross negligence

or oppression in the execution of the process, he may ject was considered. Independent School Dist. v. Hull.

be held liable in exemplary damages. Wiley v. KeoOpinion by IIarlan, J.

kuk, 6 Kans. 94; Nightingale v. Scannell, 18 Cal. 315; (Decided Jan. 19, 1885.]

Cablo v. Dakin, 20 Wend, 172. But where a sheriff wrongfully seizes property upon au execution in his

hands, and there is no malice, gross negligence, oppresKANSAS SUPREJE COURT ABSTRACT.* sion or improper motive on his part in the seizure, he

is not liable in exemplary or vindictive damages. MARRIAGE - DECLARATIONS TO PROVE-SANITY Wiley v. Keokuk, supra; Phelps v. Owens, 12 Cal. 22; OPINION OF NON-PROFESSIONALS—WIEN AVOIDED) FOR Dorsey F. Manlove, 14 id. 553; Nightingale v. Scannell, MENTAL UNSOUNDNESS.—Where a marriage contract is supra; Bell v. Campbell, 17 Kans. 212, and cases cited. claimed to be void upon the ground that the man was The case of Tyler v. Safford, 31 Kans. 608, to which we so affiicted with paralysis at tho niarriago ceremony are referred, is not in point, because that was an acthat he could not comprehend what was passing at the tion brought upon an attachment undertaking, and time, it is competent for tho woman seeking to sustain the measure of damages in such a case is different from the contract to offer in evidence the written and oral one of this character. Where a chattel mortgage or declarations of the man mado prior and repeated up written assignment of personal property is executed in to within a short timo of the ceremony, showing that part to indemnify tho mortgagees or assignees against the relations of the parties were affectionato; that tho a possible liability on a redelivery bond, and another man had stated that he could not live happily without and important object of the instrument is to delay, her; that ho intended sho should have his property, as hinder and defraud the creditors of the mortgagors or she helped to make it; that they had corresponded assignors, and such intention is participated in by all several months, and that the contract of marriage be the parties thereto, such instrument is fraudulent in tween them had already been made. Non-professional | toto, and canuot bo supported to any extent as against witnesses, having sufficient opportunity of observing a such creditors. I'instead r. Hulme. Opiniou by Horperson alleged to be insano, or non compos mentis, may tou, C. J. give their opinions as to his sanity or mental condition

INTOXICATING LIQUOR, UNLAWFULLY the result of their personal obserration, after first

A physician having no permit therefor cannot under stating the facts which they observed. This is now

the statute lawfully furnish intoxicating liquor as a the recognized rule in all the States except Massachu

medicine to a patient who is actually sick, and charge setts, Maine, New Hampshire and Texas. While such

and receive pay for the same. The method and the opinions are admissible, yet no general rule can be laid down as to what shall be a sufficient opportunity of the excepted purposes mentioned in the Constitution

means of regulating the sale of intoxicating liquors for *Appearing in 3: Kansas Reports.

must be referred to the wisdom and discretion of the

« PreviousContinue »