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exceeding five years,' etc., the presiding judge instructed the jury, "that actual knowledge by the defendant of the filing of the petition is, the other elements of the case being proved, all that is required." By § 104 of the same chapter, it is provided "that the judge, after notice of the petition given to the debtor by a copy thereof served upon him personally, or left at his last and usual place of abode, and a hearing," etc., "shall forthwith issue his warrant to take possession of the estate of the debtor." Held, that the instruction was The notice which the debtor must have is a notice from the judge to him, and until such notice is given, no liability under this clause of the statute could attach. Opinion by LORD, J. -Commonwealth v. Martin.

erroneous.

HUSBAND AND WIFE

RIGHT TO REMOVE BODY-EQUITY.-The plaintiff, iu a bill in equity, alleged in substance, that two days after the death of his wife, he consented to her burial, in a coffin and grave-clothes procured by himself-in a lot in the cemetery of the defendant corporation, owned by the husbands of two sisters of his wife; that he consented to such burial while in great distress of mind, and worn out by taking care of his wife during her last illness, and yielding to continued importunities of the sisters and of the husband of one of them, auch against his own wishes and feelings, "fearing that they would make trouble for him if he did not consent," and "which he should not have done, had his mind been in condition to realize the situation;" that he has no right or authority to take care of or adorn her grave in that lot, or to bury other of his or her family or friends there, or to be buried himself by her side; that he owns jointly with his co-heirs a lot in the Mount Hope Cemetery, in which his father and mother are buried, and in which he wishes that his late wife, and himself at his death, may be laid; that he desires to remove to this lot her remains, with the coffin containing them, and the stones and monuments placed by him at her grave; and has obtained a permit in due form from the proper board of health for that purpose; that he has requested of the defendants permission to do so in a careful and proper manner, doing no damage to the lot in which she is now deposited, and leaving that lot in good condition; and that they have refused such permission. Held, that upon these allegations, if supported by evidence, it was within the authority of the justice before whom the hearing was had, to decide that the plaintiff never freely consented to the burial of his wife in the lot of the defendants' cemetery, with the intention and understanding that it should be her final resting place; and that a court of chancery, in the exercise of its undoubted jurisdiction, might order the defendants to permit him to remove her body, coffin and tombstones to his own lot in which his parents are buried. Opinion by GRAY, C. J.-Weld v. Walker.

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was made, subject to certain restrictions and conditions, viz.: "That the said grantees, their heirs or assigns, shall never erect any building or part thereof, which shall be used for any

nauseous or offensive trade whatsoever; nor occupy such lots for these or any other purposes which shall tend to disturb the quiet or comfort of the neighborhood; and that no building or part of any, and no fence over six feet high, shall be erected within eight feet of the streets upon which said lots bounded;" but the erection or use of any such building, or the occupation of the land hereby conveyed, contrary to these provisions or any of them, shall not subject the said grantees, or their heirs or assigns, to a forfeiture of their estate in said land. Held, that the conditions were valid and enforceable in equity at the suit of any party entitled to the benefit of them; that the restriction against building "within eight feet of said streets," had reference to the line of each street as existing at the date of the deed, and was intended to establish a uniform rule as of that date, which could not be affected by the subsequent widening or narrowing of either street by public authority, or by the fact whether a building was erected before or after such alteration of the line; and that the sale of groceries and provisions could not be considered as coming within the restriction against nauseous or offensive trades or purposes tending to disturb the quiet or comfort of the neighborhood. Opinion by GRAY, C. J.-Tobey v. Moore.

SUPREME COURT OF MISSOURI. February 1881.

EQUITY SHERIFF'S DEED EVIDENCEFRAUD. A sheriff's deed is by law prima facie evidence of the recitals it contains, and together with the execution and return thereon, is admissible in evidence; and the return on the execution is presumptively true, even against strangers. The bidder at execution sale may transfer his purchase to another, and such other become the recipient of the deed from the sheriff. If the clerk of the sheriff buy at the sale of his employer, although it is not prohibited by statute, equity will view such transactions as against the policy of the law, as pregnant with suspicion of fraud, and if there be indications of unfairness, or inadequacy in price, or the like, will hold that the purchase is not bona fide. If the purchaser do not pay the money until after he receive notice of facts calculated to put a reasonably prudent man upon inquiry, the payment will come too late to afford him protection. Reversed and remanded. Opinion by SHERWOOD, C. J.-Massey v. Young.

EJECTMENT - EVIDENCE-DEED-EFFICACY OF, AS CONVEYANCE.-This was an action in ejectment. Plaintiff showed title in the wife of H, she having inherited from her father, and she and her husband signing a deed to plaintiff, in

1874, which deed was not acknowledged by either of them. Said deed was not objected to in evidence. The court declared the law to be that this deed vested the title to the premises in plaintiff. This instruction was objected to at the time, but was not brought to the notice of the court in the motion for a new trial. Held, that the failure of defendant to object to the introduction of the deed in evidence, while it would dispense with proof of its execution, would not impart to it any efficacy as a conveyance which it did not otherwise have. Being admitted in evidence without objection, its legal effect was yet to be determined, the same as though objection had been made. Real estate of the wife can only be conveyed by the joint deed of husband and wife, acknowledged and certified as provided by statute, 1 Wag. Stats. 273, § 2. The deed in evidence did not pass title to plaintiff. Reversed and remanded. Opinion by HOUGH, J.-Bartlett v. O'Donoghue.

BILL FOR REVIEW-PARTITION SUIT-FINAL JUDGMENT.-A petition to review and set aside a judgment in a partition suit. The lower court dismissed the petition, holding that the judgment for partition and sale, rendered at the September term, 1872, was the final judgment in said cause, and that the petition for review should, therefore. have been filed within three years from that date. Held, that the judgment of September, 1872, was not the final judgment in said cause, but that the sheriff having, at the September term, 1875, made his final report of the collection of the balance of the purchase-money of the lands sold (the cause having been continued to await said collection), and at said term, the report having been approved and final judgment therein rendered as required by law in such cases, the bill for review was filed in time.-Reversed and remanded. Opinion by HOUGH, J.-Murray v. Yates.

NEGLIGENCE-DAMAGES FOR BURNING HAYINTEREST.-Action for damages for destruction of a large quantity of hay by fire which, it was alleged, escaped from one of defendant's locomotives through the negligence of servants of defendants in charge of the same. The jury were instructed that if they should find for the plaintiff, they should assess his damage at the value of the hay at the time it was destroyed, with interest thereon at six per cent. from that time to the present. Held, erroneous, interest not being allowable in cases of this character. Kenney v. R. Co., 63 Mo. 99. Reversed and remanded. Opinion by HOUGH, J.-De Stiger v. Hannibal, etc. R. Co.

SUPREME COURT OF INDIANA.
February, 1881.

REHEARING-EVIDENCE-PLEADING-1. Written evidence made over the signature of the parties, and purporting to be made in the usual course of business, should not be allowed to fall

easily before verbal statements resting on recollection merely; and where, as in this case, the trial court seems to have given more credence to the documentary than to the oral proofs, this court has neither the right nor the inclination to disturb the finding. 2. The second paragraph of answer, under which alone the question made upon the evidence arises, is bad, for the reason that it purports to answer the whole complaint, while it responds to only one part of it. Petition for rehearing overruled. Opinion by WOODS, J.—Jor

dan v. D'Hewe.

FRAUDULENT CONVEYANCE PLEADING.- In an action to set aside a conveyance of real estate as fraudulent against creditors, it must be alleged in the complaint, and proved on the trial, that at the time the conveyance was executed, the debtor did not have enough other property subject to execution to pay all his debts. Spaulding v. Myers, 64 Ind. 264; Price v. Sanders, 60 Ind. 310; Romine v. Romine, 59 Ind. 346; Evans v. Hamilton, 56 Ind. 34. Reversed. Opinion by HOWK, J.-Noble v. Hines.

BILL OF EXCEPTIONS-NUNC PRO TUNC ENTRY.-The appellant filed a motion to correct a bill of exceptions, by having the words, "and this was all the evidence given in the cause," inserted therein, alleging that the words were omitted by accident, and that the bill did, in fact, contain all the evidence. Held, that the court had no power, after the close of the term, to make the amendment. A court may record a fact nunc pro tunc; that is, if the fact existed then, it may record it now; but it can not record a fact now which did not exist then, and there must be some record, note, entry or minute of some kind on which to base it, connecting it with the case. Makepeace v. Lukens, 27 Ind. 435; Kirby v. Bowland, 69 Ind. 290. The evidence not being carried into the record, no question is presented for the consideration of this court. Affirmed. Opinion by ELLIOTT, J.-Seig v. Long.

MORTGAGE

- INSUFFICIENT DESCRIPTION PLEADING-DEMURRER.-Action upon a promissory note and to foreclose a mortgage securing it. It is contended that the complaint is bad, because it does not show that the land mortgaged is situated in Delaware County. But the copy of the mortgage, made an exhibit to the complaint, recites that the real estate is situated in Delaware County and this aids and controls the averments of the complaint. Even if the mortgage was void for uncertainty, the complaint properly counts upon a promissory note, and although not warranting a decree of foreclosure, it could not be overthrown by demurrer. The defect in the mortgage might be reached by motion to strike out, by objection to the introduction of the mortgage in evidence, by objection to the part of the judgment decreeing foreclosure, or by motion to modify by striking out such part of the judgment. Affirmed. Opinion by ELLIOTT, J.-Bayless ♥. Glenn.

SHERIFF'S SALE-PRESUMPTION OF REGULARITY.-Suit to recover possession of land. The court made a special finding of the facts. The land had been sold at sheriff's sale on a judgment with relief from valuation and appraisement laws, and the court found that it had been sold without appraisement. Held, that the finding, in this particular, was not sustained by any evidence. The return of the sheriff to the execution upon which the sale was made, did not state whether or not the land was appraised, and nothing was disclosed on that subject by any of the other evidence at the trial. The regularity of the proceedings of the sheriff should have been presumed until the contrary was shown. It devolved upon the party attacking the sale to show that there had been no appraisement. Rorer Jud. Sales, 843-857; Evans v. Ashby, 22 Ind. 15. Reversed. Opinion by NIBLACK, C. J.—Talbott v. Hale.

ATTORNEY AND CLIENT-AGREEMENTS NOT BINDING ON LATTER.-In this case the appellee recovered a judgment against an estate of which appellant was administrator, and sixty days were given the appellant in which to file his bill of exceptions for appeal. The attorneys of the appellee agreed with the attorneys of appellant that the bill might be filed after the sixty days had expired. After the expiration of the sixty days, and before the bill was in fact filed, appellee dismissed her attorneys and gave them notice that she did not wish to have said bill of exceptions filed. The same was, however, put into the record, and the question is whether it became a part of such record in the case. The powers of attorneys are defined by statute: "An attorney has authority, until discharged or superseded by another, to bind his client in an action or special proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise. Code, sec. 772. Held, that the verbal agreement by the attorneys to extend the time beyond the sixty days, was unauthorized and did not bind the client; nor did their written agreement to that effect, after they were discharged and superseded by other attorneys. Nor was the client estopped by their action. Affirmed. Opinion by WOODS, J.-Goben v. Goldsberry.

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1880. C has entered January 1, 1878. Can A, under the decisions of the Missouri Supreme Court, maintain an action against C for the mesne rents and profP. its for the years 1878 and 1879?

16. Is the payee and holder of a promissory note liable to the maker in damages for wrongfully protesting the same? In other words, A, who is solvent, gives a note to B, due in ninety days, for $100, without surety or indorsers. When the note comes due, B, the note being payable at his office, has it protested. Is he liable in damages, punitive or otherwise, for the injury? A. B.

QUERIES ANSWERED.

Que. 8. [12 Cent. L. J. 143.] Can the indorser of a negotiable note before due, impeach the validity of the note he has indorsed, in an action between his indorsee and the maker, in Missouri? Please give authority. SUBSCRIBER.

Columbia Law School, Jan. 21, 1881.

Ans. We suppose this question to be whether an indorser of a negotiable security, indorsed before it was due, is admissible as a witness to impeach its original validity. This is a question upon which the courts have been much divided in opinion. The negative is held by the early English decisions, by the United States Supreme Court and by the courts of the following States: Massachusetts, Maine, Pennsylvania, Ohio, Iowa, Illinois, Mississippi, Tennessee and Louisiana; while the affirmative is maintained by the recent English decisions and by the Supreme Courts of the States of New York, New Jersey, Maryland, Virginia, Vermont, Connecticut, New Hampshire, North Carolina, South Carolina, Alabama, Texas and Missouri. Let Subscriber' examine Bank v. Hull, 7 Mo. 273; St. John v. McConnell, 19 Mo. 38. M.

Battle Creek, Mich.

Que. 13. [12 Cent. L. J. 239.] In a sheriff's deed on the foreclosure of a mortgage by advertisement, the sheriff signs his name, but not officially. Does the want of the official character to the signature render the deed void? In the body of the deed he is described by his proper name as sheriff. In the proof of acknowledgment, the acknowledging officer certifies that he is personally known to be the person described in, and who executed the deed, and to be the sheriff, etc. And in the proof of sale he swears that he is and was at the date of sale, the sheriff, etc., in fact, the deed appears in every way sufficient except that the official character of the sheriff does not appear to his signature to the deed. How does this affect the validity of the deed, if at all? X.

Ans. It is not necessary that a public officer who signs his name to a paper in that capacity, should add the name of his office, unless a statute expressly so requires. His official character must exist, but he need not add it. Every person is presumed to know who fills the public offices. Van Ness v. Bank of United States, 13 Pet. 17; Sheldon v. Van Buskirk, 2 N. Y. 473; Russ v. Wingate, 30 Miss. 440. Possibly there must, in the absence of a statement of official character, be evidence thereof aliunde (Connelly v. Bowie, 6 Har. & J. 141; Elliott v. Cronk, 13 Wend. 35; Rhoads v. Selin, 4 Wash. 718, and cases supra), which is admissible. In the case put, the official character appearing in the body of the paper is prima facie proof of that character. D. L. A.

Sherburne, N. Y.

The Central Law Journal

ST. LOUIS, APRIL 1, 1881.

CURRENT TOPICS.

In the recent English case of Robinson v. Pickering (29 W. R. 385), an injunction was granted by Malins, V. C., to restrain a married woman from dealing with her separate estate, pending proceedings to establish a charge against it. The Court of Appeal, however, annulled the order as improvidently granted, and without regard to the settled law on the subject. Said JESSEL, M. R.: "The married woman stands in much the same position as a man did, who, under the old law of bankruptcy, could not be made a bankrupt. The creditor could not get mesne process against the property, until he had established his right by a judgment. If this were not so in the case of married women, every married woman who depended on her separate estate, would be left to starve if somebody alleged that she was indebted to him. According to well-established principles and settled law, creditors of a married woman, who have obtained no judgment, can not interfere with her right to deal with her separate property."

The doctrine has a wider application than this, and is not peculiar to the law of a married woman's separate estate. It has been held, generally, that a creditor who has not reduced his demand to a judgment, can not, simply on the strength of the indebtedness and of the allegation of a fraudulent intent on the part of the debtor, without the intervention of any other equity, have the aid of a court of equity by injunction, to restrain the debtor from a contemplated disposition of his property. The leading American case on the subject is that of Wiggins v. Armstrong, (2 Johns. Ch. 144), in which Chancellor Kent reviews the authorities, both English and American, at some length, citing in support of his position, Angell v. Draper, 1 Vern. 399; Shirley v. Watts, 3 Atk. 200; Bennet v. Musgrove, 2 Ves. 51; Balch v. Wastall, 1 P. Wms. 445; Rhodes v. Cousins, 6 Rand. 188; Milford, 115, and Cooper Eq. Pl. 149, and commenting upon the adverse decisions of Cottrell v. Moody, Vol 12- No. 13

12 B. Mon. 500; Rosenberg v. Moore, 11 Md. 376; and Haggarty v. Pittman, 1 Paige, 298. See, also, High on Injunctions, § 1403, and Holdrege v. Gwynne, 3 C. E. Green, 26; Uhl v. Dillon, 10 Md. 500; Rich v. Levy, 16 Md. 74; M'Goldrick v. Slevin, 43 Ind. 522; Mills v. Northern R. Co., L. R. 5 Ch. 621; Oberholser v. Greenfield, 47 Ga. 530; Johnson v. Farnum, 56 Ga. 144; Mayer v. Wood, 56 Ga. 427; Dortic v. Dugas, 52 Ga. 356; and Peyton v. Lamar, 42 Ga. 131, there cited.

We are informed that the St. Louis Law School is to have a new Dean in the person of W. G. Hammond, LL.D., who, for the past thirteen years, has occupied the position of Chancellor of the Law Department of the Iowa State University. Besides this very exceptional training for the duties of his new position, he is well known to the profession as an author of great erudition. His notes to the American editions of Sandar's Institutes of Justinian and Gaius, and of Francis Lieber's Hermeneutics, have given his name weight in Europe as well as in this country. The Law School is to be congratulated upon having made a most fortunate acquisition. If we are correctly informed, his selection was due to the efforts of Mr. Henry Hitchcock, his predecessor in office, who has been virtually at the head of the Law School since its organization in 1867, and who, it is said, has always declined to receive any compensation for his services, although a salary of $4,000 is attached to the position.

The Missouri Legislature, before adjournment, passed a bill, empowering the judges of the Supreme Court to deliver written opinions, only in such cases as they may consider of sufficient importance, from the questions involved, to justify reporting. If the line is at all strictly drawn by the court in determining what cases are, and what cases are not worthy of reporting, the results of this measure are likely to be such that it will be regarded as a great boon by the profession. If the rule is so enforced that only such cases as are of real value as precedents shall be reported, the volume, and consequently, the expense of our reports, will be much lessened, to the great satisfaction of the bar and the chagrin of no one, unless it be the paper manufacturers and the printer.

DELEGATION OF DISCRETIONARY POWERS BY A TRUSTEE.

II.

It not unfrequently happens that the offices of trustee and executor are united in one and the same person. But such a union of two offices does not alter the relative duties and responsibilities of either; and the fact of trustees being also executors, does not give to each trustee, qua trustee, authority to deal exclusively with the property. In other words, where a testator invests his executors with trust powers as to certain property, the executors qua that particular property, become trustees, and their office of trustee is entirely distinct from that of executor, whether the parties who fill both situations are identical or not. Where, then, these distinct offices are united, any one such individual officer can not delegate his discretionary powers to another officer or a stranger, but all must unite in acting just as though trustees alone.

In Bulteel v. Albinger,1 considered above, it was laid down that the fact of the trustees being executors, did not give each trustee, qua trustee, the power to deal exclusively with the property. In Berger v. Duff,2 [naked power] A authorized his executors, B and C, to sell certain lots of land, if, under the circumstances of the times, they should deem it prudent; and C, having gone abroad, sent a power of attorney to B, his co-executor, to sell the land on such terms as he should deem expedient; and the court held that an agreement for the sale, entered into by B, for himself and C, was not valid, and dismissed a bill filed for a specific performance of it. Chancellor Kent, said: "The executors can not sell by attorney. The power given to them, by the will, was personal trust and confidence, to be exercised by them jointly, according to their best judgment, under the circumstances contemplated by the will. One executor can not commit his judgment and discretion to the other, any more than to a stranger, for delegatus non potest delegare. The testator intended that his representatives should have the benefit of the judgment of each of the executors applied to the given case, so long as both of

16 Jurist, 410 (1842).

2 4 Johns. Ch. (N. Y.) 369 (1820).

a

them were alive. The agreement to sell was not valid, being made by one executor, without the personal assent and act of the other. The power was not capable of transmission or delegation from one executor to the other, and the rule of law and equity on this point is perfectly well settled. In Greenough v. Welles, [power, see infra, note 5] H died in 1773, leaving a son and two married daughters. In his will he directed his executor to sell a certain lot and invest the proceeds at interest. He also directed other real estate to be sold, and the proceeds to be equally divided between his daughters, etc. The executor qualified and acted as such for several years, but having fled from the country, and being embraced in the act of confiscation of 1779, administration cum testamento annexo, was granted to certain other persons upon the estate of H. The court held that the power to sell given the executor of H, being a personal trust and confidence, was not, in case of his death or inability to act, transmissible to the administrator, with the will annexed.5 In Pearson v. Jamison, [naked power] Jamison, who owned real estate in the western country, made his will, The authorizing his executor to sell all, etc. executor conferred authority on a person by the name of J. Jamison to sell the land, who contracted to sell and gave bond for a conveyance of a part of it. The purchaser, Haines, shortly afterwards entered into possession, and still remained in possession.

3 See also, Ingram v. Ingram, 2 Atkyns, 88; Alexander v. Alexander, 2 Ves. Sr. 643; Lord Hardwicke, in Attorney-General v. Scott, 1 Ves. Sr. 417; Lord Redesdale, in Hamilton v. Royse. 2 Sch. & Lef. 330; Hawkins v. Kemp, 3 East, 410 (1803); Sugden on Powers, (2d ed.), 167, which are cited in this case with approval.

4 10 Cushing, 571 (1852).

5 The executor, in the above case, had a power to sell, which was a power in the nature of a trust; he was invested with a trust to be effected by the execution of a power given to him, which is in that case imperative." 2 Sugden on Powers, 173. In this case (see Coc. cit. pl. 5), the testator "has given him an interest extensive enough to enable him to discharge the power." In Brown v. Higgs, 8 Vesey, 17, the executor, therefore, was really a trustee, qua these lands, with a sufficient interest to enable him to discharge the power. In Pennsylvania, owing to the act of 1834, (1 Purd. Dig. § 13, p. 282), he would be held to hold the legal title in any view. See Miller v. Meetch, 8 Pa. 419; Chew v. Chew, 28 Pa. St. 17; Hill on Trustees, p. 336, note. This case, consequently, falls under the class of those where a power is coupled with an interest in that State.

61 McLean's C. C. R. (1833).

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