Page images

of a traveller; one who is a mere temporary lodger, in distinction from one who engages for a fixed period at a certain agreed rate. The main distinction is the fact that one is a wayfarer, or transiens; and it matters not how long he remains provided he assumes this character." 7 Am. Dec., note to Clute v. Wiggins,


In these defiuitions the prominent idea is that a guest must be a traveller, wayfarer or a transient comer to an inn for lodging and entertainment. It is not now deemed essential that a person should have come from a distance to constitute a guest. "Distance is not material. A townsman or neighbor may be a traveller, and therefore a guest at an inu as well as he who comes from a distance or from a foreign country." Walling v. Potter, 35 Conn. 183.

Justice Wilde says, in Mason v. Thompson, 9 Pick. 284, that "it is clearly settled that to constitute a guest in legal contemplation it is not essential that he should be a lodger or have any refreshment at the inn. If he leaves his horse there, the innkeeper is chargeable on account of the benefit he is to receive for the keeping of the horse."

Judge Bronson, in commenting on this case in Grinnell v. Cook, 3 Hill, 485-490, says where the owner of a horse sent the animal to an inn to be kept, but never went there himself, and never intended to go there as a guest, it seemed but little short of downright absurdity to say that in legal contemplation he was a guest. On principle it would seem that a person should himself be either actually or constructively at the inu or hotel for entertainment in order to establish the relation of landlord and guest.

In Atkinson v. Sellers, 5 C. B. (N. S.) 442, Cockburn, C. J., remarks: "Of course a man could not be said to be a traveller who goes to a place merely for the pur pose of taking refreshments. But if he goes to an inn for refreshments in the course of a journey, whether of business or of pleasure, he is entitled to demand refreshment and the innkeeper is justified in supplying it."

If a traveller have no personal entertainment or refreshment at an iun, but simply care and food for his horse, he may be a guest, for he makes the inn his temporary abode-his home for the time being. Ingalsbee v. Wood, 36 Barb. 452; Coykendall v. Eaton, 55 id. 188. And while the definition of guest has been somewhat extended from its original meaning, it does not include every one who goes to an inn for convenience to accomplish some purpose. If a man or woman go together or meet by concert at an inn or hotel in the town or city where they reside, and take a room for no other purpose than to have illicit intercourse, can it be that the law protects them as guests? Is the extraordinary rule of liability which was originally adopted from the considerations of public policy to protect travellers and wayfarers, not merely from the negligence but the dishonesty of innkeepers and their servants, to be extended to such persons? If so, then for a like reason it should protect a thief who takes a room at an inn and improves the opportunity thus given to enter the rooms and steal the goods of guests and boarders. We do not think that the relation of innkeeper and guest can or does arise in the cases supposed. One whose status is a guest is a traveller or transient comer who puts up at an inn for a lawful purpose to receive its customary lodging and entertainment. It is not one who takes a room solely to commit an offense against the laws of the State. So upon the facts detailed by the plaintiff himself we have no hesitation in saying that he was not a guest at the hotel within the legal sense of the term. The relation of landlord and guest was never established between them. We feel the more confidence in the correctness of this conclusion when we consider the du

ties of an innkeeper. An innkeeper is bound to take in all travellers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. Bac. Abr. tit. “Inn and Innkeeper," C; Story Bailm., § 476.

Now if the defendant had been aware of the purpose of the plaintiff in applying for a room, could he not have refused to receive him into his house? Nay, more, if the plaintiff had been received by the clerk, and a room had been assigned him, could not the defendant, on learning the purpose for which the room had been taken, have incontinently turned the plaintiff and the woman with him into the street, or have called the police and had them arrested? It seems to us there can be no doubt of the right of the defendant thus to have treated the plaintiff. But if the plaintiff was a guest, and entitled to the rights and privileges of a person having that status at the hotel, he could not have been turned into the street, though his profligate conduct was outraging all decency and ruining the reputation of the hotel.

The questions which have frequently come before the courts for consideration were whether a person, upon the facts of the case, was a traveller or temporary sojourner, so as to be deemed a guest, or whether he was to be regarded as a boarder, or one at the hotel as a special customer. These questions are elaborately examined in some of the cases above cited; also in Mc. Daniels v. Robinson, 26 Vt. 316; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557; Hancock v. Rand, 94 N. Y. 1; Smith v. Keyes, 2 T. & C. 650; Fitch v. Casler, 17 Hun, 126; McDonald v. Edgerton, 5 Barb. 560; Shoecraft v. Bailey, 25 Iowa, 554; Manning v. Wells, 9 Humph. 746.

It seems to have been taken for granted in the court below that the plaintiff was a guest at the hotel. But the learned County Court held that section 1725, Rev. Stat., requires the guest to deliver his money to the innkeeper himself, or to a clerk having authority from the innkeeper to receive it. As it did not appear that the clerk in this case had such authority, the defendant was relieved from responsibility for the money lost by the clerk. We should hesitate to affirm the correctness of this view of the law. On the contrary, we think a traveller, when he goes to a hotel at night, and finds a clerk in charge of the office, assigning rooms, etc., has the right to assume that such clerk represents the proprietor, and has authority to take charge of money which may be handed him by a guest for safe-keeping. But still, in the view which we have taken of the character of the plaintiff, and that he was not a guest at the hotel, this error of the court is immaterial. On the whole record the judg ment is right, and must be





An incorporated cemetery association is not relieved from assessment for a street improvement by a statutory provision exempting its lands from taxation, such exemption being regarded as confined to taxes as distinguished from local assessments.

While the lands of an incorporated cemetery association, so

far as exempted, cannot be sold to pay an assessment for the improvement of a street, the municipal corporation may enforce the assessment by such remedies as the statute and courts of equity afford.

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

ERROR to the Court of Common Pleas. Reserved

in the District Court of Allen County.

In 1882, Lima, a city of the fourth grade of the second class (Rev. Stats., § 1548), made an assessment by the feet front, amounting to $318.16, on real estate within the city belonging to the Lima Cemetery Association, a company incorporated under the laws of this State. Rev. Stats., §§ 3571-3586. The real estate abuts upon an alley in this city, and the assessment was made in due form by the city for grading and paving the alley.

There is nothing then in the Constitution forbidding either the assessment of such property or its exemption from assessment. The words of the Constitution authorizing the exemption, assuming that they extend to an assessment, are strictly permissive. May in this case is not to be read shall. By the neral terms of section 2264 the property of the association is within the assessment, and it is simply a question of coustruction whether it is taken out of the general words by the other provisions. But applying the well-settled rule for the construction of provisious exempting property from such burdens, that is, that they are to be strictly construed (Cincinnati College v. State, 19 Ohio, 110; State v. Mills, 34 N. J. L. 177) we are required 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., §§ 2732, 3571, 3578) has relation to taxation for revenue purposes, and does not extend to an assessment for a local improvement like that in question here. Under similar provisions such is the holding in New York: Buffalo City Cemetery v. Buffalo, 46 N. Y. 503, 506, cited in Roosevelt Hospital 574, 586; Reclamation Dist. v. Goldman, 61 Cal. 205, v. Mayor, 84 id. 108, 115; People v. Davenport, 91 id. 208. In Maryland: Alexander v. Baltimore, 5 Gill, 396;

Baltimore v. Greenmount Cemetery, 7 Md. 517. In Massachusetts: Boston, etc., Soc. v. Boston, 116 Mass. 181; S. C., 17 Am. Rep. 153. In New Jersey: Paterson v. Society, etc., 24 N. J. L. 385; State v. Newark, 27 id. 185; State v. Newark, 35 id. 157. The latter case, though reversed in 36 id. 478, it still authority upon the point to which it is here cited (State v. Elizabeth, 37 N. J. L. 330), and Hoboken v. North Bergen, 43 In id. 146, is consistent with the preceding cases. Pennsylvania: Northern Liberties v. St. John's Ch., 13 Penn. St. 104; Pray v. Northern Liberties, 31 id. 69; Crawford v. Burrell_Tp., Greensburgh v. Young, 53 id. 219, 280. The latter decisions are not inconsistent with the cases cited.


In an action in the Court of Common Pleas of Allen county under Rev. Stats., §§ 2286, 2287, to enforce the assessment, the association answered that the lands are, and for a long time, to wit, before the making of said improvement, have been used exclusively as a graveyard and ground for burying the, dead, and that said lands are not held with a view to profit, or for the purpose of speculating on the sale thereof, and that said lands are not taxable, and that the same are not on the tax duplicate for taxation."

The court overruled a demurrer to the answer, and subsequently dismissed the petition; and a petition in error having been filed in the District Court, that court reserved the cause for decision by this court.

D. J. Cable, for plaintiff in error.

OKEY, J. A municipal corporation insisting upon the right to impose an assessment should be prepared to show that such power has been clearly granted by statute; but authority for such purpose being shown in general terms, whoever insists that his property is exempted from the burden, will be required to support his claim

by a provision equally clear. Here authority to levy the assessment is clearly granted in general terms (Rev. Stats., § 2264), and whether it is shown by the cemetery association that its property is exempted from the assessment is the only question for determination.

1. It is claimed that suth exemption is implied from the provision limiting the assessment to twenty-five per cent of the value of property as assessed for taxation (Rev. Stats., § 2270) inasmuch as the property of the association cannot be assessed for taxation. Rev. Stats., §§ 2732, 3571, 3578. This objection was held to be fatal in First Presb. Ch. v. Fort Wayne, 36 Ind. 338; Matter of Hebrew Society, 70 N. Y. 476. But the difficulty encountered in the Indiana case is obviated in this State by Rev. Stats., § 2269, in which the course to be pursued by counsel in such a case is pointed



2. The Constitution provides: "Laws shall be passed taxing by a uniform rule * * * all real and personal property, according to its true value in money; but burying grounds * * * may by general laws be exempted from taxation." Art. 12, § 2. And by Rev. Stats., § 2732, 3571, 3578, as we have seen, burying grounds-cemeteries-are exempted from taxation." It is insisted that this exemption embraces assessments. True, in a general sense, a tax is an assessment, and an assessment is a tax, but there is a plain distinction between them. The Constitution provides: "The General Assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.' Art. 13, 36.

many years been in constant and active exercise in every part of the State, and was perfectly understood by every member of the convention. The popular as well as legal signification of this term had always indicated those special local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, aud laid with reference to the special benefit which such property derived from the expenditure of the money. They had always differed widely from the ordinary levies made for the purposes of general revenue."

In Hill v. Higdon, 5 Ohio St. 243, Ranney, J., in referring to the insertion of the word assessment in the organic law, by the convention which framed that instrument, took occasion to say: "This power had for

In Olive Cemetery Co.v. Philadelphia, 93 Penu. St. 129, it appeared that by the charter of the cemetery company the property was "exempt from taxation except. ing for State purposes." The court properly said that "the rule is well settled that an exception in a statute excludes all other exceptions. Miller v. Kirkpatrick, 5 Casey, 226. In Virginia: Orange & A. R. Co. v. Alexandria, 17 Gratt. 176. In Rhode Island: Second Univ. Soc. v. Providence, 6 R. 1. 236; Matter of College Street, 8 id. 476; Beals v. Rubber Co., 11 id. 381; S. C., 23 Am. Rep. 472. In California: Emery v. Gas Co., 28 Cal. 345; Reclamation Dist. v. Goldman, supra. Iu Indiana: Palmer v. Stumph, 29 Ind. 329; First Presb.Ch. v. Fort Wayne, supra; Marks v. Trustees, 37 Iud. 155. In Illinois: Illinois & M. Canal v. Chicago, 12 Ill. 403; Peoria v. Kidder, 26 id. 351; Pleasant v. Kost, 29 id. 490; People v. Graceland Cemetery Co., 86 id. 336. In Iowa: Sioux City v. School Dist., 55 Iowa, 150. In Michigan: Lefevre v. Detroit, 2 Mich. 586. In Kentucky: Broadway Baptist Ch. v. McAtee, 8 Bush, 508; Louisville v. Nevin, 10 id. 549. In Kansas: Paine v. Spratley, 5 Kans. 525. In Connecticut: Bridgeport v. Railroad, 36 Conn. 255. In Louisiana: Crowley v. Copley, 2 La. Ann. 329; Lafayette v. Male Orphan Asy

lum, 4 id. 1; Yeatman v. Crandall, 11 id. 220; Rooney v. Brown, 21 id. 51. In Missouri: Lockwood v. St. Louis, 24 Mo. 20; St. Louis Public Schools v. St. Louis, 26 id. 468; Sheehan v. Good Samaritan Hospital, 50 id. 155; S. C., 11 Am. Rep. 412. In Ohio: Armstrong v. 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. Higdon, supra; Matheny v. Golden, 5 Ohio St. 361; Gerke v. Purcell, 25 id. 229; Humphries v. Little Sisters, 29 id. 201; Cleveland Library Association v. Pelton, 36 id. 253. And see generally as to cemeteries, Price v. Methodist Ch., 4 Ohio, 515; Hullman v. Honcomp, 5 Ohio St. 237; 12 Moak Eng. Rep. 665; 2 Wait Act. & Def. 127, 133; 1 Am. & Eng. Corp. Cas. 267, 512; 2 Bish. Cr. L., §§ 1188, 1190. The sole exception to the cases sustaining such assessment as not within an exemption from taxation, if indeed an exception (Hale v. Kenosha, 29 Wis. 599; Dalrymple v. Milwaukee, 53 id. 178) is found in Wisconsin.


3. It is provided that the association may hold "not exceeding one hundred acres of land, which shall be exempt from execution * * if used exclusively for burial purposes, and in no wise with a view to profit." Rev. Stats., § 3571. It does not appear how much land this association has, but let it be assumed for the present that the quantity is less than one hundred acres. We agree that this exemption is to be taken in its most comprehensive sense, and hence there cannot be a sale of such lands under any legal process whatever. In view of this it has been thought that Louisville v. Nevin, supra; S. C., 19 Am. Rep. 78, is an authority for holding that the exemption defeats this assessment. That was an action to enforce an assessment on a lot in Jefferson street, Louisville, for regrading and repaving the sidewalk along the front of the lot. The judge delivering the opinion stated the fact to be that "the lot was conveyed to the city in 1834, to be held in trust for the use of the Roman Catholic congregation in Louisville as a burying ground, and has been filled with graves for more than twenty years, and has never been used since 1834 for any other purpose than a graveyard; and it is submitted that no revenue is derived from it, aud that the Rt. Rev. Bishop McClosky, who now holds the title as trustee, has no funds in his hands belonging to the trust with which to pay the assessment.' The Legislature had not granted authority to remove the bodies, nor had the city assumed to exercise such authority, and the court held that there was no authority to enforce the assessment in that suit.

Aud see Matter of Mayor, 11 Johus. 77, and Albany Street, 11 Wend. 150. But here, for aught that appears in the record, the association has funds to pay the assessment, and indeed for aught that appears it has lands not occupied by graves exceeding one hundred acros in quantity. It does not appear that the association is without the means to pay the assessment, and certainly we could not assume that it will remain without funds. Although the association is not strictly one for mere profit, nevertheless it is empowered by the statute to do, at its own expense, not only the very work for which it is here in part assessed, but it may improve and ornament its grouuds in such way as to its officers may seem proper. While the cemetery lands, assuming them to be within the limitation, cannot be sold on any legal process, we think the city may nevertheless be able to collect the assessment, if indeed occasion should arise for resorting to further proceedings in this case; for the statute plainly authorizes proceedings, both at law and in equity (Rev. Stats., §§ 2286, 2287), and payment, if not voluntarily made, could doubtless be secured by the appointment of a receiver, by sequestration, or by such other ap

propriate remedy as equity may afford (2 Dill. Mun. Corp., § 822) without in any way disturbing the resting place of those reposing in "the city of the dead."

Judgment reversed.


PLEADING-CONDITION PRECEDENT — ALLEGATION AND DENIAL-IOWA CODE.-A plaintiff having alleged general performance by him of his obligations under a contract, a denial by the other party in his answer of "each and every allegation in the petition," will not, under the Iowa Code (which regulates pleading and practice in the Federal courts in that State), put in issue a condition precedent, without performing which the plaintiff would have had no right of action. In Mayes v. Turley, 60 Iowa, 407, the plaintiff averred in his petition that he was the duly appointed, qualified, and acting administrator of the estate, etc. The defendants' answer said they denied each and every allegation in said petition contained. It was held by the court that the jury should have been instructed that the denial being insufficient, they could not take notice of it, and they should therefore consider it admitted that the plaintiff was duly appointed and qualified administrator. So in Stier v. City of Oskaloosa, 41 Iowa, 354, it was held that a bare denial, in the answer of the averment to the petition, that the defendant was a corporation, does not put that fact in issue. To the same effect are the following cases: Coates v. Galeua & C. U. R. Co., 18 Iowa, 277; Blackshire v. Iowa Homestead Co., 39 id. 624; Gates v. Carpenter, 43 id. 152. No distinction can be drawn between the application of the rule to the cases mentioned in section 2716 and that specified in section 2715; and upon such a question we feel bound to adopt the construction of the State Code which has been established by the decisions of the Supreme Court of Iowa. Halferty v. Wilmering. Opinion by Matthews, J.

[Decided Jan. 5, 1885.]



POLICE POWER OF STATE. (1) This court cannot pass upon the conformity of a law with the requirements of the Constitution of the State in which it was enacted. (2) Class legislation, discriminating against some and favoring others, is prohibited by the fourteenth amendment to the Constitution of the United States; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. (3) Neither the fourteenth amendment, nor any other amendment to the Constitution of the United States, was designed to interfere with the power of a State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, or good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. Barbier v. Connolly. Opinion by Field, J.

[Decided Oct., 1884.]

REMOVAL OF CAUSE-AVERMENT OF CITIZENSHIPTRUSTEE INDISPENSABLE PARTY. Two citizens of West Virginia conveyed to a trustee certain real property in that State to secure the payment of notes executed by them to a Missouri corporation, which was subsequently dissolved, and its assets placed in the hands of a citizen of the latter State. Upon default in the payment of the notes the trustee, under author

ity given by the deed, 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 United States, and was there finally determined. Held, that since 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 trustee 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 Co. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 id. 36; Ribon v. Railroad Co., 16 id. 446; Knapp v. Railroad, 20 id. 117; Grace v. American Ins. Co., 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. 205; Blake v. McKim, id. 336. Thayer v. Life Association of America. Opinion by Harlan, J. [Decided Jan. 5, 1885.]

CONTRACT-CARRYING MAIL-ASSIGNMENT OF CLAIM AGAINST GOVERNMENT-REV. STATS., §§ 3477, 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 mail as was made by the postal depart

ment either before or after the succession of title; the contract with the United States government having been made by the Lake Superior & Mississippi River Railroad Company, and there being no descriptive words in the instrument of mortgage transferring the rights of the latter company under that contract to the mortgagees. In Erwin v. U. S., 97 U. S. 392, it was held that an assignment by operation of law to an assignee 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 title to a claim against the United States. But in our opinion the present case is not within the principle of these exceptions, but falls within the purview of the prohibition. It is a voluntary transfer by way of mortgage for the security of a debt, and finally completed and made absolute by a judicial sale. If the statute does not apply to such cases, it would be difficult to draw a line of exclusion which leaves any place for the operation of the prohibition. So the transfer, by the same proceeding, of the contract itself, so as to entitle the assignee to perform the service aud claim the compensation stipulated for, is forbidden by section 3737, Rev. Stat. That section is as follows: "Seo. 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 DISSOLVE— FUTURE 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 Johns. 513, 538. 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 Johus. 144; S. C., 5 Am. Dec. 197; Graves v. Merry, 6 Cow. 701; S. C., 16 Am. Dec. 471; National Bank v. Norton, 1 Hill, 572; Nott v. Douming, 6 La. 680; S. C., 26 Am. Dec. 491; Watkinson v. Bank of Pennsylvania, 4Whart. 482; S. C., 34 Am. Dec. 521; Rose v. Coffield, 53 Md. 18; S. C., 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 have no better foundation than rumor, or even suspicion. They do not bear upon their face the verity which a notice One who derives signed by the party would import. knowledge of the fact from public notoriety is sufficiently notified (Bernard v. Torrance, 5 Gill & J. 383; Halliday v. McDougal, 20 Weud. 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 otherwise. 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. Manhattan Co., 22 Wend. 183, 193; Lovejoy v.Spafford, 93 U. S. 430. Solomon v. Hollander. Opinion by Cooley, C. J.

[Decided Nov. 19, 1884.]

MUNICIPAL CORPORATION-HORSE FRIGHTENED BY BOULDER IN STREET-STATUTORY LIABILITY.—A city is not liable under the statute 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 until it could be removed by a private party, to whom it had been given for building purposes. The statutory remedy is confined to cases where the want of repair is the immediate cause of the injury; and allowing things which 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 Massachusetts 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,

[ocr errors][ocr errors]

but upon fright caused to a horse which ran away and damaged the vehicle or persons he was drawing, or other analogous cases, it did not come within the rule, and the municipality was not liable. Cook v. Moutague, 115 Mass. 571; Bemis v. Arlington, 114 id. 507; Cook v. Charlestown, 98 id. 80; Kingsbury v. Dedham, 13 Allen, 186; Keith v. Easton, 2 id. 552. The road itself was not out of repair. It was in good order and passable. If the stone had any thing to do with the action of the horse and damage to the buggy, it was by frightening the animal, and not by hurting or impeding him. But if it is admitted, and the court below allowed the jury so to assume, that a city is liable for leaving or allowing in its streets that which is dangerous by reason of its tendency to frighten the passing teams, the question arises how far this record presents such a case. It will not do to apply any far-fetched and unreasonable rule in such cases. It was held in the case of Macomber v. Nichols, 34 Mich. 212, that a steam engine which, according to every-day experience is always a cause of terror to horses unused to meeting it in a highway, was nevertheless not, in law or in fact, an unlawful article to propel or draw there. And a similar rule was applied in Gilbert v. Flint & P. M. Ry. Co., 51 Mich. 488; S. C., 47 Am. Rep. 592. It is customary in all towns to allow ditches to be dug and building materials of all kinds and colors to be piled up and kept for considerable periods in the body of the street. In many, if not in most places, the right to do this can only be had by license from the corporation, and it cannot be claimed that such a license can be granted to do a wrong or create a nuisance. Such stones as that described are often used for building purposes, and left in the street like other building materials, and sometimes broken up for use or sawed for use. It does not seem reasonable to hold that such things can be allowed to await the convenience of a person who wishes to use them near by, and yet not to await removal somewhere else. If this stone had been hauled to the place it occupied in order to be used for building purposes, and left there for a considerable time, no one would think of regarding it as an actionable grievance. The use of streets for such purposes is too common to justify the owners of horses to assume it will not be allowed, and they should be prepared to guard against their animals' freaks and fears of such ordinary appearances. The stone, as is not disputed, was lawfully put there in the first place, in the course of street repairs. If it was the duty of the city to see that it was not left there indefinitely, it was equally its right to sell or give it away, and having done so, it could take no steps to interfere unless, at the worst, the purchaser or donee delayed so long as to make it unreasonable to wait longer for him. It could not be responsible for any delay which was not unreasonable. Agnew v. Corunna. Opinion by Campbell, J. [Decided Jan. 7, 1885.]





The defense shows that in August, 1880, the plaintiff agreed to furnish the defendant "a cord-binder" in 1881, "guaranteed to work satisfactorily." The agreement was executory, and hence when the cord-binder was furnished defendant had the right before finally accepting it to make a trial of it, reasonable as respects both time and manner, aud a right to reject it if it did not work satisfactorily, that is to say, satisfactorily to him. 2 Add. Cont. 942; Auson Cont. 285; Poll. Cont. 466; Doane v. Dunham, 65 Ill. 512; Leake Cont. 284. In case upon reasonable trial it did not work satisfactorily, it was not necessary for defendant to return it

[ocr errors]




to plaintiff in the absence of an express agreement to that effect. It was sufficient for him within a reasonable time to notify plaintiff in substance that it did not work satisfactorily, and that he declined to accept it. Gibson v. Vail, 53 Vt. 476; Doane v. Dunham, supra; Starr v. Torry, 22 N. J. L. 190; Smalley v. Hendrickson, 29 id. 371; Lucy v. Mouflet, 5 Hurl. & N. 229: Grimoldby v. Wells, L. R., 10 C. P. 391; 12 Eng. Rep. 451; 2 Beuj. Sales (4th Am. ed. Corbin's), §§ 978, 1348; Leake Cout. 409, 827. McCormick, etc., Co. v. Chesbrown. Opinion by Berry, J. [See 33 Am. Rep. 351; 25 Eug. Rep. 569.] [Decided Dec. 22, 1884.] - FUTURE PREFERENCE—FRAUD.—(1) A mortgage may properly be made to secure future advances. Madigan v. Mead, 31 Minn. 94; Brown v. Kiefer, 71 N.; Y. 610; Ackerman v. Hunsicker, 85 id. 43; Boswell v. Goodwin, 31 Conn. 74; Jones v. Guaranty & Indemnity Co., 101 U. S. 622; Jones Ch. Mortg., §§ 94-97. It follows that a mortgage is not fraudulent per se, or as a matter of law, as respects the mortgagor's creditors, because given in whole or in part to secure such advances. (2) Our insolvent law (ch. 148, L. 1881) does not have the effect to render mortgages fraudulent or void as respects the mortgagor's creditors, on the ground that they are preferential, except in proceedings under it. Outside of such proceedings the preferences are not per se, or as a matter of law objectionable. Smith v. Deidrick, 30 Minn. 60. (3) The fact that a mortgage is given to secure a larger sum than is actually due from the mortgagor to the mortgagee, or that its condition

failed to describe the real character of the indebtedness or liability intended to be secured, does not necessarily render the mortgage fraudulent as respects the mortgagor's creditors. The question still is, was it made with intent to hinder, delay or defraud the mortgagor's creditors? Minor v. Sheehan, 30 Miun. 419, and cases cited; Jones Ch. Mortg., § 96. Berry v. O'Counor. Opinion by Berry, J. [Decided Dec. 22, 1884.]

JUDGMENT-ENTRY ON ORDER OF, JUDGE AFTER EXPIRATION OF TERM-IRREGULAR.-Where the judge of a municipal court, upon the expiration of his term of office, vacated and ceased to occupy the same, but thereafter reduced to writing and filed a decision and order for judgment in a case previously tried and submitted, held, that such decision and order were unauthorized, and a judgment entered thereon may be set aside on motion. It is not enough that he had arrived at a conclusion before his term expired; it was necessary that his decision be reduced to writing and filed; until then it was subject to revision, and could not be considered as determining the case. Kissam v. Hamilton, 20 How. Pr. 376; Ayrault v. Sackett, 17 id. 461; Putnam v. Crombie, 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 ignorance of the latter fact, and while he was still in possession of the office and performing its duties. He had not yet surrendered or vacated it. And he was

held to be an officer de facto, and his acts valid. That

case is clearly distinguishable from this, and the same remark applies to the case of State v. Brown, 12 Minn. 545 (Gil. 448). We think the motion to set aside the

judgment was the proper remedy, and should be granted. Grant v. Vandercook, 57 Barb. 175. Cain v. Libby. Opinion by Vanderburgh, J. [Decided Dec. 2, 1884.]

CONSTITUTIONAL LAW — INCORPORATION OF VILLAGES DELEGATION OF LEGISLATIVE POWERS.-Chapter 73, General Laws, 1883, provides for the incorporation of villages upon petition to the judge of the Dis

« PreviousContinue »