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dles, 34 Barb. 301. The case was this: W., a merchant, sold goods to R. R. returned the goods, and refused to complete the contract. W. informed R. that he would hold him to the contract, and that he held the goods for R. R. still refused to take the goods and pay for them. It was held, that W. might sell the goods and sue R. for the loss upon them, and that he was not bound to give R. notice of the time and place of sale, and though he gave such notice he might postpone the sale to another day, if it seemed judicious. The court said that it was the duty of the vendor to notify the vendee of his intention to resell the goods at the latter's risk; but that he was not bound to notify the vendee of the day and place of sale, even though it be at auction. The court cited Gashell v. Morris, 7 W. & S. 22, and Crooks v. Moore, 1 Sand. Sup. Ct. 297, to sustain them in this view. '
Other important cases are contained in the volume; but our notice of it is already as long as our space will permit. It is a pity that the opinions of this able court should not have wider currency. If the copyright were in the hands of private publishers, we might expect this. Under the present system of State copyrighting and State publishing, it cannot be hoped for.
Reports of Cases Argued and Determined in the Supreme Judicial Court of
Massachusetts. By HORACE GRAY, Jr. Vol. XV. Boston: Little, Brown, & Co. 1862.
The publication of this volume leaves only two volumes more necessary to make the series of Massachusetts Reports complete, — the Sixteenth of Gray and the Fourteenth of Allen ; both of which will, we hope, see the light in the course of the present year.
The cases now published were decided in the year 1860; but, although this was only nine years ago, there is not a single member of the court then who remains on it at present: the resignation of Mr. Justice Hoar breaking the last link.
The opinions are mostly very brief, and not particularly interesting. As the volume was published too late for us to make use of it for our Digest of State Reports, we notice below some of the more striking cases:
If a wife leaves her husband's house because of his violence, and from reasonable apprehension of her safety, he is liable for her board; and also for the board of their child whom she takes with her, if, knowing where the child is, he makes no attempt to reclaim it; and he is not discharged from such liability by his wife's subsequent return to his house. Reynolds v. Sweetser, p. 78. Compare Bazeley v. Forder, Law Rep. 3 Q. B. 559, 3 Am. Law Rev. 273.
Upon the taking for a public highway, by the right of eminent domain, of a franchise to build and maintain a bridge, the proprietors are not entitled to compensation for the value of the bridge as a structure, but for the loss of their franchise only. Central Bridge Corporation v. Lowell, p. 106.
The abuse of legal authority which will make a person a trespasser ab initio, is the abuse of some special and particular authority given by law; and the doctrine does not apply to the case of an agent in a factory, who uses improper force in ejecting a disorderly person employed there. Esty v. Wilmot, p. 168. Is it not rather a stretch of words, to call the right to enter a tavern (see Sis Carpenters' Case) a special and particular authority given by law?
Taking a promissory note payable in terms at the same time as that stipulated in a bond, with sureties for the payment of the bond, discharges the sureties; because the days of grace have to be added, before the note is payable, and so time is given to the principal. Appleton v. Parker, p. 173.
In an action in Massachusetts on a note made and payable, on a day certain, in New York, without any further agreement as to interest, the plaintiff can only recover six per cent interest, the legal rate in Massachusetts, though seven per cent is the legal rate in New York. Ayer v. Tilden, p. 178.
In Erickson v. Nesmith, p. 221, it was held that an action at law could not be maintained in Massachusetts, to enforce the liability of a stockholder of a corporation established in New Hampshire for a debt of the corporation, if the laws of New Hampshire provide that the remedy against a stockholder on a debt of the corporation in New Hampshire, shall be by bill in equity, and not otherwise. Subsequently, in Erickson v. Nesmith, 4 All. 233, it was held, that a bill in equity could not be maintained in Massachusetts to enforce the same liability; but in Erickson v. Nesmith, 46 N.H. 371, 1 Am. Law Rev. 134, the Supreme Court of New Hampshire have held, that the solvent stockholders residing in New Hampshire must pay the entire debts. We believe it has not been decided whether the New Hampshire creditors, thus compelled to pay all the debts, can maintain a suit in Massachusetts to enforce contribution from the Massachusetts stockholders.
The opinion by Mr. Justice Hoar, in Willard v. Eastman, p. 328, in which it was held, that a debt contracted by a married woman, for the accommodation of another person, without consideration received by her, will not be enforced in equity against her separate estate, unless made a charge upon it by an express instrument, is perhaps the ablest in the volume, and shows how admirable a judgment that distinguished judge could write, when he was willing, as was too seldom the case, to take the necessary pains.
A contract made in violation of the Lord's Day Act is absolutely void, and no subsequent ratification will sustain an action upon it. Day v. McAllister, p. 433.
The case of Sanborn v. Carleton, p. 399, carries us back to the troublous times before the outbreak of the war. Sanborn was arrested on a warrant issued by order of the United States Senate against him, he having failed to appear before the committee appointed “to inquire into the facts attending the late invasion and seizure of the armory and arsenal of the United States, at Harper's Ferry, in Virginia, by a band of armed men.” Sanborn, having been arrested by a deputy of the sergeant-at-arms of the Senate, was discharged from arrest on the ground that the warrant was addressed to the sergeant-at-arms only, and could not lawfully be served by deputy in Massachusetts.
Two cases are important, as bearing on questions which will probably arise under the recent Bankrupt Act. In Savage v. Winchester, p. 453, it was held, (1) that a widow who has joined with her husband in a mortgage of her separate estate, to secure his debt, which she has paid since his decease, for the purpose of exonerating her estate, may prove the amount before commissioners of insolvency upon his estate; and (2) that a creditor may prove his debt against the estate of his deceased debtor, before commissioners of insolvency, without first surrendering a mortgage of the separate estate of the debtor's wife, which he holds, as security for the debt; and in Wolcott v. Hodge, p. 547, that a debt resulting from the neglect of an attorney-at-law to pay over to his client money which he has collected for him, is not a debt contracted while acting in a fiduciary capacity, and, as such, excepted from being discharged by a certificate under the United States Bankrupt Act of 1841.
In Russell v. Cowles, p. 582, which was an action for breach of promise of marriage, evidence that the plaintiff, in the absence of the defendant, bought a velvet cloak, a small quantity of crockery-ware, and some cloth which she made up into various articles of bed-clothing; and that she visited a furniture shop, and examined and learned the prices of various articles of furniture, is inadmissible to prove the plaintiff's assent to a mutual promise of marriage.
At the close of the volume, is the Address of the Bar to Chief Justice Shaw, on his resigning the place on the bench which he had occupied for thirty years, and his reply.
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme
Court of Illinois. By NORMAN L. FREEMAN, Counsellor-at-Law. Vol. XLI. Containing a part of the Cases decided at the April Term, 1866. Chicago: Eugene B. Myers, 1868.
THERE are several cases of interest in this volume, besides those for which we could find room in our Digest. In Dickey v. McDonnell, p. 62, the question was whether if plaintiff, after suspecting that defendant's intention was to have sexual connection with her, still rode with him to a secluded spot, voluntarily alighted, and then resisted his advances for the purpose of extorting money, until he threatened and violently assaulted her, when she assented, she could recover. A verdict for the defendant was set aside. Mr. Justice Breese dissented from the opinion of the court, which was neatly put by Lawrence, J., thus: “It cer. tainly cannot be contended, because a woman would sell her person for one hundred dollars, and would resist with all her physical force any attempt to take possession of her, except upon these terms, that, therefore, violence may be lawfully used to overcome her.”
In Henchey v. City of Chicago, p. 136, it was held, that an attorney's lien for his fees did not attach to a claim for unliquidated damages prior to the judgment, so as to deprive his client of the power to settle the case as she might see fit.
In Bowen v. Schuler, it is intimated obiter, p. 196, that, in case of a purchase of goods, with a fraudulent intent not to pay for them, the title to the property does not pass. Mr. Benjamin, in his book on Sales, p. 325, has deduced a contrary conclusion from the English cases, though affirming, of course, the vendor's right of rescission.
In People v. Harvey, Same v. Miller, p. 277, two hostile lawyers seem to have attempted each to have the other removed from a sphere too narrow to contain both. Neither succeeded; but each received a sound lecture, with an intimation of his fate in case of future misconduct.
In Reeder v. Purdy, p. 279, Mr. Justice Lawrence gives an interesting opinion, adverse to the right of the owner of land who is wrongfully kept out of possession, to enter forcibly against the will of the occupant.
Dole v. Olmstead, p. 344, affirms the decision in the same case, 36 Ill. 150, ante, 2 Am. Law Rev. 528.
Morgan v. Peet, p. 347, affirms a point about which there has been expressed an unaccountable doubt, that when an indorser, with knowledge of facts discharging him from liability, makes a new promise, he will be liable, although he is ignorant that by the rules of law he is discharged.
On pp. 425, 441, 444, Mr. Justice Breese, an able judge, lets his rhetoric get a little the better of him, beginning thus: “ Observe the generosity, the loving-kindness, philanthropy, and benevolence of this good Samaritan, the complainant!" He arrives on p. 444 at the oratorical climax: “ Which of these parties, both with unclean hands, should a court of equity assist? Justice and those pure principles which are the ornament of such a court, — its brightest jewels, — answer, neither."
The most important cases are in this number of our Digest, and we do not repeat them. The opinions of the judges are short, strong, and business-like.
The reporter's work seems to be well done, except the head-notes. These are better than those in some American reports, which consist of slices cut at random from the body of the opinion, but are not so good as they might be. A head-note ought above all things to contain a statement of the facts of the case put categorically, not hypothetically, and what was held on those facts. Then, if a clean principle of law can be extracted as the ratio decidendi, it may well be allowed a short, separate paragraph; and important principles deliberately approved by the court, but not necessary to the case, may be sparingly introduced under a semble.
Reports of Cases Argued and Determined in the Court of Appeals of Maryland.
By J. SHAAFF STOCKETT, State Reporter. Vol. XXVII. Containing Cases in April and October Terms, 1867. Published by authority. Baltimore: John Murphy & Co. 1869.
This volume contains 715 pages besides the index, but only 54 cases, and those, too, of certainly not more than average importance. Some of our State Reports may, perhaps, be too brief, but such extended treatment of cases as this is neither necessary nor desirable. The exceptions, and in most instances the briefs of counsel, seem to be set forth verbatim; such reporting might be well enough for patriarchal days, but for the span of human life in these times, it is really imposing too much on the overworked lawyers of America. And what is the use of such statements as these in the head-notes? “ Courts will not assume that witnesses have perjured themselves and are not entitled to credit. If testimony be not rebutted, and the character and credibility of the witnesses be not impeached, it will have its due weight and influence with the court.” “An act designed to prevent fraud should be not so construed as to promote it.” It is really cruel to the courts to cull these commonplaces, and pillory them at the beginning of a case. There is no doubt, in this thick book, the materials to make a very good volume, or rather a half or quarter volume, of reported cases; but we do wish that the learned reporter would use his scissors a little less and his head a little more. We assure him it would give much more satisfaction to his readers. VOL. III.
It is only just, however, to Mr. Stockett to say that these cases were not heard by him, but were decided before he occupied his present position, and were handed over to him by his predecessor.
In Treiber v. Burrows, p. 130, it is held, that in Maryland an innkeeper is not responsible for the loss of money in the trunk of a guest exceeding in amount such a sum as is convenient to meet his travelling expenses. The court admit that this is a relaxation of the rule of the common law.
A contract to deliver corn at a future period, which corn at the time of the contract is in the field, ungathered and unshucked, is not within the Statute of Frauds, work and labor being necessary to prepare the corn for delivery, and forming part of the consideration for the price to be paid. Rentch v. Long, p. 188. The court rest their decision on Eichelberger v. McCauley, 5 H. & J. 213; admitting that, if it were an open question in Maryland, their decision might perhaps be different.
An action for a tort was brought against husband and wife. Judgment by default was rendered against them jointly; and the amount of damages was determined by inquisition. Held, that execution could be levied upon the separate estate of the wife. Brown v. Kemper, p. 666.
Where an advancement is brought into hotchpot, its value must be estimated as of the time when it is received; that is, at the time when it is made complete by its actual possession and employment. Clark v. Willson, p. 693.
Report of the Case of the Steamship Meteor, libelled for alleged violation of the
Neutrality Act. By F. V. BALCH, of the Suffolk Bar. Boston: Little, Brown, & Co. 1869. Vol. I. Proceedings in the District Court of the United States for the Southern District of New York. pp. 344. Vol. II. Proceedings in the Circuit Court of the United States for the Southern District of New York in the Second Circuit, and in the Supreme Court of the United States. pp. 204. [Both volumes bound together.]
We discussed the case of The Meteor so much at length in our last number, that we here only briefly call the attention of our readers to this accurately edited Report, in which every thing that bears on the law and facts of the case, including all the evidence taken at the trial, is collected.
The case will always remain of special interest, so long as the Alabama claims are unsettled, for it is the most recent, and in some respects the most important, discussion in our courts of the right of citizens of neutral States to furnish vessels to belligerents. One cannot fail to be struck in reading this case with the narrowness of the distinction between what neutrals may, and what they may not, lawfully do; how much it is a matter of positive and somewhat arbitrary law, and how little it is based upon permanent moral distinctions.
It is matter of much regret, that the opinion of Judge Nelson, overruling the decision of Judge Betts, and releasing the vessel, is so brief, and that we have so imperfectly the reasons which guided the greatest living Admiralty law yer in America in forming his judgment. The opinion, however, of Judge Betts, and the arguments of Mr. Webster for the Government, and Mr. Evarts for the claimants, make the volume a useful addition to international law.