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defendant can aid the defendant in withholding from plaintiffs the money so unjustly obtained by the defendant.

There was error in the courts below, and this court enters judgment for the plaintiffs for the amount found by the court below, together with interest on the same from the first day of that term of court, and costs of suit.

Johnson, C. J., concurs in holding that under the facts disclosed the excessive charges may be recovered back, but he dissents from the construction placed on section 12 of the act of 1848, which limits the rate of freight to five cents per ton per mile for a distance of thirty miles or more, and reasonable rates for less distances. He does not think that section applies to packages and parcels weighing less than a ton, and which by the usual custom are not shipped by weight. McIlvaine, J., dissenting: I differ from my brethren on the weight of testimony in this case. I think the payments of illegal rates were voluntary. The payments were not made at the time the goods were carried, but at the end of the month for past freights, and I have been unable to find any testimony satisfactorily showing that payments were exacted as a condition of future freightage, or paid on any reasonable belief that future freight would be refused unless payments

were made.

Judgment reversed, and judgment for plaintiffs.

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On the 26th of May, 1874, she was the owner of a certain piece of land situated in Alameda county of this State, which was her separate property, it having been given to her by her father on the occasion of her marriage. On the day last named she signed a power of attorney, very general in its terms, appointing her father her attorney in fact to (among other things) "lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate" her said land upon such terms and conditions, and under such covenants as to him should seem fit. The power as well as the certificate of acknowledgment described the constituent as "Fannie P. Lawrence, formerly Fannie L. Hutchinson," and the power was so sigued. The certificate however did not conform to the requirements of our statute prescribing the form for certificates of acknowledgment of married women.

When the power of attorney, so signed and acknowledged, was received by Edwin A. Lawrence, the latter was the owner of various certificates of purchase issued by the State of California for State lands, on which Gustave Reis held a mortgage executed to him by Lawrence. A part of the purchase-money of the lauds had been paid, but a part of it remained unpaid. In due course of time an installment became due. Lawrence needed the money with which to make the payment. He negotiated with Mr. E. B. Mastick for the loan of the required amount on a mortgage he proposed to give on his daughter's land under and by virtue of the power of attorney. The power, the VOID DI- daughter testified on the trial of this case, she signed unwillingly and only after urgent solicitation on the part of her father; and in answer to the question "why did your father urge you to execute the power of attorney to which you have referred?" she an swered: "Because he said he had payments to make on certain lauds of his, and that in case of necessity he wished to raise enough money on my property to meet that demand; but that he hardly thought he would be obliged to do so; but he wished to have the paper on hand, so in case of need he could make use of it." In endeavoring to obtain money on the strength of his daughter's land, Edwin A. Lawrence was therefore but carrying out the purpose had in view by both when the daughter gave him the

SUPREME COURT OF CALIFORNIA.

REIS V. LAWRENCE.*

A woman living under her maiden name, apart from her husband, under a void decree of divorce, and acting and representing herself as a single woman, binds herself by her acknowledgment of a deed as a single woman. CTION on a note and to enforce a lien on land. The opinion states the facts. The defendant had judgment below.

A

Edward J. Pringle, for appellant.

William Irvine, for respondent.

Ross, J. The defendant Edwin A Lawrence is the father of the defendant Faunie P. Lawrence. The latter married one Hiram Hutchinson, in the city of San Francisco, on the 13th of April, 1871. In the year of 1873 she went to the Territory of Utah for the purpose of obtaining a divorce from her husband, and on the 6th of May of that year filed in the Probate Court of Salt Lake county, Utah Territory, a petition in which she set forth that Hutchinson deserted and abandoned her on or about the first day of March, 1872, and had ever since continued his desertion and abandonment of her, and praying for a decree of divorce dissolving the bonds of matrimony existing between them. On the 15th of July, 1873, the court in which the proceeding was had entered a decree purporting to dissolve the bonds of matrimony existing between Mr. and Mrs. Hutchinson, and restoring to the petitioner

her maiden name.

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power.

His negotiations with Mr. Mastick for a loan of the required money failed of accomplishment on the last day allowed for the payment of the installment due upon the certificates of purchase. In this extremity he applied to Gustave Reis for the loan of the amount necessary to make the payment, viz., $4,550. Gustave furnished a part of the money, but got the greater part of it from Ferdinand Reis, who is the plaintiff in this action. The loan was accordingly made, and as security for its payment Edwin A. Lawrence executed to the plaintiff, Reis, a deed for the Alameda land as attorney in fact for Fannie P. Lawrence. At the time of this transaction, which took place on the 27th of June, 1874, Edwin A. Lawrence represented to Reis that his daughter had obtained a divorce from her husband in Salt Lake, and had been restored to her September, 1874, upon application made on behalf of maiden name. Subsequently, to wit, on the 18th of the plaintiff Fannie P. Lawrence executed to plaintiff a deed for the same land described in the deed

already executed to him by her father as her attorney in fact, which deed expressed a consideration of $4,500, and contained the clause: "This deed is given in confirmation of the deed given by me to said Reis on June 27, 1874, by my attorney in fact, hereby ratifying and confirming the same." The certificate of acknowledgment to this confirmatory deed described the grautor as "Fannie P. Lawrence (femme sole,," and complied with the requirements of the statute pre

scribing the form of such certificates for others than married women, butdid not conform to those in respect to the latter.

The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin county of this State against the defendant Fannie, for the purpose of obtaining a decree dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff in that action, and from that time forth lived apart from him, and denied him all marital rights. After trial the court in which the action was brought decreed the plaintiff a divorce on the ground stated in his complaint.

We assume that the Utah decree was invalid. Nevertheless the fact remains that upon the rendition of that decree the defendant Fannie P. Lawrence resumed her maiden name, and thence hitherto continued to act and represent herself as a femme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land, and on those representations, the father did borrow money, and to secure its repayment executed to the lender, pursuant to the power, a deed for the premises. Subsequently and in consideration of that loan, the daughter still acting and representing herself as a femme sole, executed as such to the lender another deed for the premises, in which she recited that it was given in confirmation of the deed previously executed by her attorney in fact. At this day she seeks to avoid the effect of these conveyances to the injury of the party who parted with his money on the strength of her actions and representatious by saying that she was all along a married women, and that the certificate of acknowledgment to the instruments executed by her were not in accordance wth the form prescribed by statute for married women in that they did not recite that she, was examined "without the hearing of her husband," a husband who, according to her petition for divorce filed in Utah, had deserted and abandoned her on the 1st day of March, 1872, and whom, according to the record put in evidence from the District Court of Marin county, she had deserted and abandoned in July of the same year, and between whom no marital relations other than the dry, legal relation in fact existed. Of course, under such circumstances the reason for the rule that requires, in cases of married women, the certificate of acknowledgment to recite an examination without the hearing of the husband, does not exist. At least as early as July, 1872, the defendant, Annie, lived apart from, and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and represented herself as a single woman. In that character she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. As giving support to these views, see Richeson v. Simmons, 47 Mo. 20; Rosenthal v Mayhugh, 33 Ohio St. 155; Patterson v. Lawrence, 90 Ill. 174.

We find it unnecessary to determine whether the rules based on the common law relation of husband and wife are to be applied to their full extent in this State where the wife is now by statute empowered to dispose of her separate estate without the consent or concurrence of her husband.

It follows that the plaintiff is entitled to the lien prayed for.

Judgment and order reversed, and cause remanded for a new trial.

Morrison, C. J., Sharpstein and Myrick, JJ.,

con

curred; McKee and Thornton, JJ., dissent. [See 36 Am. Rep. 762, 764.]

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.

HIGHWAY-DEFECT-PROXIMITY TO HIGHWAY.-In order that the plaintiff should recover it was necessary that he should show that the defect in the highway "which caused the injury existed either in the highway or so immediately contiguons to it as to make it dangerous to travel on the highway itself." Sparhawk v. Salem, 1 Allen, 30. Alger v. Lowell, 3 Allen, 402; Adams v. Natick, 13 id. 429; Puffer v. Orange, 122 Mass. 389, cited and quoted from. In determining whether a defect is in such close proximity as to render travelling upon it unsafe, that proximity must be considered with reference to the highway &C as travelled and used for the public travel," rather than as located. Warner v. Holyoke, 112 Mass. 362. While it may be impossible to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it, and while it must often be a practical question, having regard to many circumstances, to be decided by a jury, yet it has been held in certain cases as matter of law that a jury was not authorized in finding that the dangerous place was in such proximity to the highway as to render travelling thereon unsafe. Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, ubi supra; Daily v. Worcester, 131 Mass. 452, cited. In all these cases the place where the accident happened was reached by passing over a level space which intervened between it and the highway, yet these defective places were held not dangerously contiguous. The case at bar is within the rule thus adopted. The causes of the injury to plaintiff were the darkness, his failure to keep the carriage path, his travelling on that made by foot passengers at the extreme edge of the highway as located, and the subsequent misconduct of the horse. It cannot be said that a bank thirty-four feet from the travelled way as used rendered it unsafe to travel thereon. This distance was sufficient to provide for those contingencies which from time to time might render necessary a road somewhat wider than that actually travelled. Barnes v. Inhabitants of Chicopee. Opinion by Devens, J.

NEGOTIABLE INSTRUMENT -ILLEGAL CONSIDERATION-SUPPRESSING CRIMINAL PROSECUTION.-When a person is under arrest on a criminal charge, to obtain from him and his friends a promissory note in payment of an alleged claim under a threat of prosecuting the complaint if the note is not given, and under an agreement not to prosecute it if the note is given, is in violation of law equally whether the accused is guilty or not guilty; and the guilt or innocence of the accused cannot be tried in this action. Such a proceeding is an abuse of criminal process, and such an agreement tends to the suppression of evidence, and impedes the due course of public justice. Partridge v. Hood, 120 Mass. 403; Clark v. Pomeroy, 12 Allen, 557; Bigelow v. Woodward, 15 Gray, 560. Gorham v. Keyes. Opinion by Field, J. [Decided Oct., 1884.]

NEBRASKA SUPREME COURT ABSTRACT.

SPECIFIC PERFORMANCE-RESCISSION.-A. purchased of B. a certain lot, paying thereon $50 in cash, and agreeing in the deed as part of the consideration to a building of a certain description thereon. Held, that B. was entitled to the performance of the

erect

contract, and in case of the failure of A. after a reasonable time, upon tendering back the money received, to a rescission. The right to relief originated in the fraud, which but for the interposition of the court, would be perpetrated upon the complaining party. Will. Eq. Jur. 302; Story Eq. Jur., § 692 et seq. Thus in Reid v. Burns, 13 Ohio St. 49, where the plaintiff had caused the title to his homestead to be conveyed to his son in consideration that he would support him during life, which the son afterward refused to do, it was held that the father was entitled to a rescission of the contract and a reconveyance of the premises. And in Stines v. Dorman, 25 Ohio St. 580, it was held that a stipulation in a deed of conveyance whereby the grantee, in part consideration for the conveyance, agreed that the premises should not be used or occupied as a hotel, bound both the grantee and all claiming under him. It would be a reproach upon the law could a party secure the title to real estate in consideration, in whole or in part, that he would erect certain buildings thereon, and upon receiving a conveyance refuse to perform his agreement. The law favors good faith and fair dealing. These require the defendant to erect the building in question according to his agreement, or in case of his failure to do so within a reasonable time, submit to a cancellation of his deed. In a contract of this kind a court will look at the entire transaction, and grant or withhold relief as the circumstances of the case may seem to require; but it will uphold fair dealing wherever it is possible to do so, and to that end will enforce specific performance of an agreement clearly proved, whenever an action for damages will not afford adequate remedy. Willard v. Ford. Opinion by Maxwell, J.

[Decided Oct. 8, 1884.]

of

PARTIES-PARTNERS-ACTION MUST BE AGAINST ALL. -The obligation of a partnership to pay a sum money is the joint obligation of all the members of a firm, and an action against the members of such firm to recover a debt or obligation owing by it must be brought against all the members of the partnership. In Bliss Code Pl., § 91, n., it is said: "At common law, where there is a joint obligation or undertaking, in an action upon it all who thus join must be made defendants; and in determining whether it is joint the rule is that several persons contracting together with the same party for one and the same act shall be regarded as jointly, and not individually or separately liable, in the absence of any express words to show that a distinct as well as an entire liability was intended to fasten on the promisors." Thus contracts made by partners with third persons are joint, and all must be joined in an action; and so with promissory notes and other instruments or agreements, made by more than one, when the agreement is general; as we hereby agree or hereby promise or bind and obligate ourselves, etc. Implied obligations are joint when the facts from which the promise is implied apply equally to more than one. Partnership debts and debts of joint-stock companies are always joint; and inasmuch as express words are necessary to make a several agreement, and especially one that is joint and several, the absence of such words makes it on the face of it joint. "This being the rule of the common law, it is evident that the rule remains in this State unless changed by statute, for the reason of the rule exists the same as heretofore. The obligation being joint it denotes but a single indivisible claim; and so all the obligors constitute, as it were, one person owing a single debt, and no one owes any part of it. Hence the necessity of bringing all before the court, and no others." Id., § 92. Our statute has not changed the rule. The law of this State upon this question is a lit

eral copy of the law of New York, which has also been adopted by the States of Ohio, Wisconsin, Minnesota, North Carolina, South Carolina, Florida, Oregon and perhaps others. This question has been passed upon by the Supreme Court of Ohio, and the rule is settled in that State that the Code, as well as the common law, requires all jointly liable to be made defendants. Bates Code Pl., § 1, p. 47; Hempy v. Ransom, 33 Ohio St. 315; Bazell v. Belcher, 31 id. 572. The same rule seems to be recognized in this State. See Leech v. Milburn Wagon Co., 14 Neb. 109; Fox v. Abbott, 12 id. 328, Maxw. Just. Pr. 28. Bowen v. Crow. Opin. ion by Reese, J.

[Decided Oct. 8, 1884.]

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EMINENT DOMAIN-DAMAGES APPEAL INJUNCTION. Where a public road has been duly laid out, a claim for damages made by a land-owner and allowed, and no appeal taken, a court of equity will not enjoin the opening of the road upon the ground that the damages allowed such land-owners were inadequate. Upon a petition duly signed as required by law for the location or vacation of a public road, the county commissioners are duly invested by the statute with authority in the premises. The extent to which error will lie to the District Court to correct their proceedings is not now before the court, and need not be considered; but in the absence of some equitable grounds for relief, such as fraud, corruption or undue means, error cannot be corrected by injunction. McClelland v. Miller, 28 Ohio St. 488; Frevert v. Finfrock, 31 id. 627. In the case last cited it is said: "For a stronger reason where the regularity of the proceedings is the ground of objection, the claimant will not be permitted to resort to the remedy of injunction, but will be confined to his appeal, or if the proceedings are so erroneous as to be reversible, to his petition in error." High Inj., §§ 30, 129, 131. The reason is the aggrieved party has a full and adequate remedy at law, and bas no occasion to resort to a court of equity for redress. Coe v.Columbus, etc.,R.Co.,10 Ohio St. 372; Coughron v. Swift, 18 Ill. 414; Winkler v. Winkler, 40 id. 179; Poage v. Bell, 3 Rand. 586; Webster v. Couch, 6 id. 519; Akrill v. Selden, 1 Barb. 316; Wooden v. Wooden, 2 Green Ch. 429. Where a full and adequate remedy is provided by statute a court of equity will not assume jurisdiction and enjoin proceedings under such remedy. Brown's Appeal, 66 Penn. St. 155; Wooden v. Wooden, 2 Green Ch. 429. The principal ground of complaint in the petition is that the damages awarded for the location of the road were inadequate. But the statute gave the plaintiff the right to appeal to the District Court. This, so far as appears, he failed to do. It would seem therefore that he was satisfied with the amount of the award. In any event the statute gave him a plain, adequate remedy, which if he neglected, he cannot now invoke the aid of a court of equity to cure his own laches. Neither the pleading nor proof justifies the interposition of a court of equity. Hopkins v. Keller. Opinion by Maxwell, J. [Decided Oct. 14, 1884.]

NEW JERSEY SUPREME COURT ABSTRACT.*

CORPORATION-PRESIDENT-NO POWER TO EXECUTE BOND-JUDGMENT — RECEIVER.- The president of a corporation has no power, in virtue of his office as president, to execute a bond and warrant of attorney for the entry of a judgment by confession against the corporation. The powers of the president of a corporation over its business and property are strictly the powers of an agent-powers delegated to him by the *To appear in 46 N. J. L. Reports.

directors, who are the managers of the corporation and the persons in whom the control of its business and property is vested. Boone Corp., § 144; Titus v. Cairo, etc., R. Co., 8 Vroom, 98-102; Leggett v. N. J. Banking Co., Saxt. 541. The president of a corporation, organized for business purposes, is its chief executive officer, and in virtue of his office has authority to perform all acts of an ordinary nature, which by usage or necessity are incident to his office, and may bind the corporation by contracts in the usual course of business. His authority to act for the corporation may also be enlarged beyond those powers which are inherent in his office, but those are cases where the agency of the officer has arisen from the assent of the directors, from their consent and acquiescence in permitting him to assume the direction and control of its business, and are instances of the application of the principle that a principal will be liable for the acts of his agent within the apparent authority conferred upon him. Taylor Corp., § 202, 236-244; Ang. & Ames Corp., $$ 299-302; Martin v. Webb, 110 U. S. 7. That the president of a corporation is the owner of nearly all its capital stock, and is its superintendent and treasurer and the active manager of its affairs, and was accustomed to borrow money for the company's use, will give him no power to incumber its property by a mortgage or judgment confessed for money borrowed. Stowe v. Wyse, 7 Conn. 214; C. & N. W. R., etc., Co. v. James, 24 Wis. 388. The corporation having become insolvent, its receiver, as the representative of creditors, has the capacity to take the objection that a judg ment against the corporation by confession was not obtained in such a manner as to be binding upon the corporation. Vail v. Hamilton, 85 N. Y. 453. Stokes v. N. J. Pottery Co. Opinion by Depue, J. CONSTITUTIONAL LAW-LIMITATION-ANTECEDENT OBLIGATIONS.-The limitation in the act of March 23, 1881 (Pamph. L., p. 184), that suits on bonds should be commenced within six months from the date of the sale of mortgaged premises, is so connected with the other parts of the act as to be inseparable, and as to antecedent obligations, is unconstitutional. In Baldwin v. Flagg, 14 Vroom, 495, the second section of the act was construed, and the court say that as applied to antecedent obligations, it is in violation of the constitutional prohibition of the Legislature to pass any law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made, for the reasons that the act not only postpones the obligee's remedy on his bond until the foreclosure proceedings are terminated, but also impairs the value of the mortgage security by subjecting the purchaser's title to conditions of redemption after sale which must diminish the vendible value of the motgaged premises. Coddington v. Bispham, 9 Stew. Eq. 574, in the Court of Errors and Appeals, approves this construction, and settles its authority. In these cases, it is now said, the court has passed on the effect of the law as it attempted to control the obligee and mortgagee's right to prefer either his bond or mortgage by suit in enforcing his remedy for the debt thereby secured, but it does not directly say, because it was not called for by the facts of these cases, that when this preference is made by first foreclosing the mortgage the holder of the bond is not subject to the limitation to bring his action on it within six months from the date of the sale of the mortgaged premises. It is claimed by this plea, and the argument for its legality, that the limitation to the suit on the bond after foreclosure is separable from the faulty parts of the statute. This supposed distinction is based on the rule that where one part of a statute is unconstitutional because it is not within the scope of legislative power

to pass it, another part of the same act may not be obnoxious to the same objection but may be enforced as if made in a different statute. But the principle thus invoked is subject to the limitation that the enactments thus separated as constitutional and unconstitutional must be wholly independent of each other. If they are so connected and dependent as to warrant the belief that the Legislature intended them as a whole, they must stand or fall together. Warren v. Charlestown, 2 Gray, 84-89; State v. Commissioners of New Brunswick, 9 Vroom, 320; State v. Kelsey, 15 id. 1, 29. Morris v. Carter. Opinion by Scudder, J.

MICHIGAN SUPREME COURT ABSTRACT.

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course of his

MASTER AND SERVANT-RISKS OF EMPLOYMENTCONDUCTOR ASSUMING CONTROL OF ENGINEINJURY то BRAKEMAN. - When an accidental injury results to a servant from an pected cause that arises in the employment, he must be deemed to have assumed the risk thereof, and is not entitled to recover therefor. The engineer and fireman in charge of the locomotive of a railroad train having temporarily left their respective posts, the conductor, who it was alleged was incompetent for the purpose, undertook to take the place of the engineer, and ordered a brakeman to make a coupling, and while he was obeying this order, and in consequence of the unskillfulness of the conductor, the brakeman was injured. Held, that he was not entitled to recover, in an action against the railroad for such injury. In this case, the plaintiff says the engineer and fireman temporarily left their posts for some purpose unknown to the plaintiff. It is not charged that they did so with the company's consent, or that there was any wrong connected with their leaving, for which the company was responsible. Suppose they had gone off on a strike; may other persons employed on the train refuse to assist in moving it out of the way of other trains? Surely this question must be answered in the negative. If under any circumstances, the conductor may rightfully take charge of the engine, this suit must fail, as there is no allegation in the declaration to show that in this case he was not justified. And he, being the person responsible for the safety and management of the train, must be allowed a certain discretion in deciding upon emergencies, and the presumption must favor his action. And when he acts rightfully, it is contemplated in the employment of his subordinates that they, within their several spheres, shall assist him. That there is nothing in the Bayfield case, which in the opinion of the judges who decided it, conflicts with this view, is apparent from the case of Greenwald v. M., H. & O. R. Co., 49 Mich. 197; S. C., 13 N. W. Rep. 513. In that case a fireman was ordered to perform the engineer's duty, and while doing so an injury occurred to a brakeman, for which suit was brought. The chief justice, speaking for the court, said the order "was a proper one beyond question;" and the case was disposed of on that assumption. But as respects the propriety and rightfulness of the order, that case stands upon exactly the same grounds with this. The case of Houston, etc., R. Co. v. Myers, 55 Tex. 110; S. C., 8 Am. & Eng. R. Cas. 114, is directly in point here. That case differs from this only in the fact that it was the fireman and not the conductor who was managing the engine, and who was alleged to be incompetent for the duties of the engineer. A brakeman, who was injured while the fireman was thus in charge, brought suit against the railroad company, but was held not entitled to recover. The judge of the Superior Court took the same view of this case, and we think his judg

ment should be affirmed. The opinion of this court in Detroit Savings Bank v. Zeigler, 52 Mich. ; S. C., 1 Am. & Eng. Corp. Cas. 333, contains much respecting mutual assistance by subordinates in special cases, that applies with force to the case of servants in various capacities on a railroad train. Rodman v. Mich. Cent. R. Co. Opinion by Cooley, C. J. [Decided Oct. 15, 1884.]

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MASTER AND SERVANT-CONTRACT-TERM OF CERVICE-EVIDENCE--QUESTION FOR JURY.-Plaintiff entered into the service of defendant on November, 1880, under a written contract dated October 29, 1880, on a salary of $2,000 per year, payable in monthly payments, "and continued in such service until March 21, 1883, when he was discharged. Held, in an action by plaintiff to recover the balance of the year's salary, that the contract was admissible in evidence, and that whether or not the hiring was from year to year or from month to month was a question for the jury. Tallon v. Grand Portage, etc., Co. Opinion by Sherwood, J.

[Decided Oct. 22, 1884.]

PARTNERSHIP-WHAT CONSTITUTES.-When a contract between parties contemplates action to be taken at once and continuously for the joint benefit, one party to furnish the money in advance and the other to give his time and attention to putting up machinery to carry on the proposed enterprise, a present partnership is created, and not merely an agreement to form a future copartnership entered into. The purpose must be derived from the nature of the agreement, and not from the meaning of the words as present or future, standing alone. Kerrick v. Stevens. Opinion by Campbell, J. [Decided Oct. 22, 1884.]

MUNICIPAL CORPORATIONS CONTRACT WITHOUT FORMALITIES REQUIRED BY CHARTER-INTERVENTION OF ATTORNEY GENERAL-INJUNCTION.-Where the formal provisions of a city charter have not been followed, preliminary to entering into a contract for lighting the streets of the city, no bad faith or intentional abuse of authority being charged or shown, the State has no interest that will justify the intervention of the attorney-general by information to enjoin the corporate authorities from carrying such contract into execution. In Attorney-General v. City of Detroit, 23 Mich. 263, we said that "every misuse of corporate authority is, in a legal sense, an abuse of trust; and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it." But in the same case it was added: "Where however the attorney general is to intervene in corporate affairs on behalf of the State, the abuse should be one of a substantial nature, and not of a character merely technical or unimportant. It should appear that the public has a substantial interest in the question. The right involved should be a public right, or at least not a private right merely. The wroug donelor attempted, if it consist solely in a misuse or misappropriation of funds, should be either one involving questions of public policy, or where that is not the case, the amount involved should be something more than merely nominal; something that it is not beneath the dignity of the State to take notice of and protect by such a proceeding. The remedy is somewhat extraordinary, and substantial grounds ought to appear to justify a resort to it." Atty.-Gen. v. City of Detroit. Opinion by Cooley, C. J.

[Decided Oct. 22, 1884.]

JURISDICTION-GARNISHMENT -NON-RESIDENCE OF PRINCIPAL DEFENDANT-PERSONAL JUDGMENT. -The

courts of this State can acquire jurisdiction to render a personal judgment against a defendant when he is a non-resident, and is not served with process within its jurisdiction, but is served out of the jurisdiction with notice of suit having been commenced against him, and of garnishment proceedings against his debtors within the jurisdiction; and a judgment so rendered will protect the garnishee against liability over to the principal defendant for the amount of any judgment rendered against him in the garnishment proceedings. It is a well-recognized principle that every State possesses exclusive jurisdiction and sovereignity over persons and property within its territory, and it may make laws to subject property situated within its limits, owned by non-residents, to the payment of claims due to its own citizens from them. Such legislation is based upon the necessity of the case, and the injustice which would result from permitting non-resident debtors to withdraw their property or assets from the jurisdiction of the State, and is a legitimate exercise of its authority to hold and appropriate the property of such debtors to satisfy the claims of its own citizens. 1 Smith Lead. Cas. (7th ed.) 1121, et seq. In the absence of personal service upon the non-resident defeudant within the jurisdiction of the court, or his voluntary appearance in the suit, the jurisdiction can extend no further than an inquiry as to the amount of the obligation of the non-resident to its own citizens for the purpose of showing the extent necessary to control the disposition of the property. Picquet v. Swan, 5 Mas. 35; Boswell's Lessee v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714; Freem. Judgm., § 573; Whart. Confl. Laws, §§ 649, 715; Am. Lead. Cases (5th ed.), 625, et seq. Jurisdiction in such cases is upheld mainly upon the ground that the object of the proceedings is to subject certain specified property to the payment of the demand, and are substantially proceedings in rem against the property, and are justified by principles underlying such proceedings. Whart. Confil. Laws, § 717; Waples Proc. in Rem, ch. 55, and cases cited above. One of the essential requirements to sustain proceedings in rem is that notice shall be given, either general to all the world, or special to the parties interested. The statute under consideration provides for such notice, and that it shall be served upon the party interested, and proof thereof filed before judgment can be entered. Moore v. Wayne Circuit Judge. Opinion by Champlin, J.

[Decided Oct. 15, 1884.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

WILL TRUST-POWER OF DISPOSAL.-A testator, in a will disposing of a considerable estate of his own and of a larger estate of his deceased wife which he enjoyed for life, and as to which he had an absolute power of appointment, made this provision: "The residue of my estate, of every kind, and that left to me by my beloved wife by her last will and testament to dispose of as I deemed best, I direct my executors to divide into five parts." He then devised and bequeathed one part each to his two sons and one each to his three daughters. He further provided, "the three last parts of my estate are to be held in trust by my executors or trustees and the interest to be paid annually into their own (the daughters') hands." Testator further gave his daughters power to dispose of their shares by will if they should leave no children, but if either should leave children they were to take their mother's share at her death. If any of testator's children died before attaining majority, he provided

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