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the petition in bankruptcy, certain other creditors had
agreed to sell their claims to A. at twenty-five per
cent, had afterward proved their claims in bankruptcy
and then assigned them to A. The petitioners asked
that said claims be disallowed on the ground that A.
was a special partner, and that under the statute (1
Rev. Stat. 720, § 23) no special partner could, save as
excepted in the statutes, claim as creditor until the
claims of all other creditors were satisfied. The regis-
ter overruled the point, holding that in respect to the
assigned claims, A. stood in the position of his assign-
ors, and was only a creditor as their representative.
This decision was sustained by the Bankruptcy Court.
Held, that conceding the decision to be in effect an ad-
judication that A. was only a special partner, it was
not binding outside of the bankruptcy proceedings
upon creditors who were not parties to the application.
See Hayes v. Heyer, 35 N. Y. 326-330; Innes v. Lan-
sing, 7 Paige, 583. It is argued that proving the debt
against the estate of the general partners, and receiv-
ing a dividend thereon, were equivalent to obtaining a
judgment thereon against the general partners alone,
the effect of which would have been to discharge the
other partner. U. S. v. Leffler, 11 Pet. 86, 101; Robert-
son v. Smith, 18 Johus. 459. The rule, if still subsist-
ing, that the recovery of a judgment against some of
the partners of a firm consisting of more, is a bar to a
subsequent action against all the partners, would be
wholly inapplicable to the present case. The reasons
for that rule were, first, that a judgment against a por-
tion of the partners merges the debt as to them, and
thus destroys the joint indebtedness; and second,
that there being already a judgment against some of
the partners, and they being necessary parties to the
second suit, a second recovery against all would result
in two judgments against the same persons for the
same debt. It is obvious that neither of these reasons
can apply to the case of merely proving a debt against
the estates of some of several joint debtors.
worthy of note however that none of the cases rest
upon the ground here assumed by the respondent, that
recovering a judgment in an action against only two
of three joint debtors estops the creditor from after-
ward claiming that the third was also jointly liable for
the same debt. Durant v. Abendroth. Opinion by
Rapallo, J.

[Decided Oct. 7, 1884.]

It is

UNITED STATES SUPREME COURT AB

STRACT.

proved July 23, 1866, ch. 219 (14 St. 218, "to quiet land titles in California," but that act was not referred to in the complaint, and besides it purports only to confirm the title of the State, which in this case is perfect without it. No attempt is made in that act to provide for the settlement of the rights of conflicting claimants under the State. Congress contented itself with the confirmation of the State's title, and left all who claimed under that title to their remedies in the courts or other tribunals provided by law for that purpose. California v. Jackson. Opinion by Waite, C. J.

[Decided Nov. 7, 1884.]

INTERNAL REVENUE-INFORMATION FOR FORFEITURE-GENERAL VERDICT GOOD.-Upon the trial of information under section 3372 of the Revised Statutes the verdict was returned in this form: "We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of $1,000." The claimant moved in arrest of judgment that several of the counts were insufficient, and that the verdict was general upon all the counts, and was vague and uncertain, and not responsive to the issue. The motion was overruled, and judgment rendered for the United States, and the claimant sued out a writ of error. Informations under the revenue laws for the forfeiture of goods, seeking no judgment of fine or imprisonment against any person, are not strictly criminal cases, in which the decisions of the Circuit Court are final, un-less & division of opinion is certified; but they are civil actions, of which this court has jurisdiction in error, without regard to the sum or value in dispute. Rev. Stat., § 699; Pettigrew v. United States, 97 U. S. 385. Yet as has been expressly adjudged, they are so far in the nature of criminal proceedings as to come within the rule that a general verdict upon several counts, seeking in different forms one object, must be upheld if one count is good. Clifton v. United States,

4 How. 242, 250. As one of the counts in this case is
admitted to be good, it is unnecessary to consider the
objections taken to the other counts. The verdict,
though expressed in bad English, clearly manifested
the intention and finding of the jury upon the issue
submitted to them, and the court rightly gave judg-
ment upon it. Rev. Stat., § 954; Parks v. Turner, 12
How. 39, 46; Lincoln v. Iron Co., 103 U. S. 412. Sny-
der v. United States. Opinion by Gray, J.
[Decided Nov. 17, 1884.]

EVIDENCE-COMPETENCY OF WITNESS-NEW YORK CODE CIVIL PROCEDURE, SEC. 834-U. S. R. S., SEC. 721-INSURANCE-QUESTION AS TO DISEASE. (1) The

JURISDICTION—AMOUNT IN DISPUTE.—The jurisdic-provision in the New York Code of Civil Procedure,

tion of the Supreme Court for the review of the judgments and decrees of the Circuit Courts, in so far as it is affected by the $5,000 limitation, depends on the value of the matter in dispute in the Supreme Court, and it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs. Hilton v. Dickinson, 108 U. S. 165. Opinion by Waite, C. J.

[Decided Nov. 7, 1884.]

JURISDICTION GRANTOR'S TITLE FROM UNITED STATES ADMITTED, Act of 1866, CH. 219.-In a suit for the recovery of lands where both parties claim under a common grantor, whose title from the United States is admitted, the Supreme Court has no jurisdiction for the review of the decisions of a State court upon questions relating only to the title acquired by the several parties under their respective grants from the common grantor, and which are not in themselves of a Federal character. Romie v. Casanova, 91 U. S. 379, and McStay v. Friedman, 92 id. 723. Some reliance was had in the argument on the act of Congress ap

§ 834, that "a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity," is obligatory upon the courts of the United States sitting within that State in trials at common law. That section provides that a person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." It is not, and could not well be seriously questioned, that the evidence excluded by the Circuit Court was inadmissible under the rule prescribed by that section. Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; Same v. Same, 80 id. 281; Pierson v. People, 79 id. 424; Edington v. Etua Life Ins. Co., 77 id. 564; Edington v. Mutual Life Ins. Co., 67 id. 185. But it is suggested that truth and justice require the admission of evidence which the statutory rule, rigorously enforced, would exclude, and that it can be admitted without disturbing there

SHIP AND SHIPPING-MARITIME DEBTS-FIRST ATTACHMENT GIVES NO PREFERENCE-OTHER CREDITORS

MAY INTERVENE.-By the maritime law the creditor first filing a libel aud arresting the vessel does not thereby acquire the right to have his debt paid in full to the exclusion of other creditors whose debts are of the same rank and equal merit, and who intervene and prove their debts before or at the time a final decree in the suit first brought is rendered. In 2 Pars. Ship. & Adm., it is said: "If the different demands are of the same nature, priority in beginning the suit will not give priority in payment if the other demands are brought to the attention of the court before a decree in the first suit brought is rendered." The rule that a creditor who institutes the first suit does not thereby acquire priority of right to payment over other creditors of the same class who have been guilty of no laches, is supported by the fol

lations of confidence properly existing between physician and patient; that it would not afflict the living nor reflect upon the dead, if the physician should testify that his patient had died from a fever or an affection of the liver; and that the rule, as now understood and applied in the courts of New York, shuts out, in actions upon life policies, the most satisfactory evidence of the existence of disease and of the cause of death. These considerations, not without weight, so far as the policy of such legislation is concerned, are proper to be addressed to the Legislature of that StateBut they cannot control the interpretation of the statute, where its words are so plain and unambiguous as to exclude the consideration of extrinsic circumstances. Since it is for that State to determine the rules of evidence to be observed in the courts of her own creation, the only question is whether the Circuit Court of the United States is required by the statutes governing its proceedings to enforce the foregoing pro-lowing cases: The Paragon, 1 Ware, 330; The Amervision of the New York Code. This question must be answered in the affirmative. (2) By section 721 of the Revised Statutes, which is a reproduction of the 34th section of the Judiciary Act of 1789, it is declared that "the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptious named, to observe as rules of decision, the rules of evidence prescribed by the laws of the States in which such courts are held. Potter v. National Bank, 102 U. S. 165; Vance v. Campbell, 1 Black. 427; Wright v. Bales, 2 id. 535; McNeil v. Holbrook, 12 Pet. 84; Sims v. Hundley, 6 How. 1. (3) To the question, in an application for insurance upon life, whether the applicant had ever had the disease of "affection of the liver," the answer was "No." Held, that the answer was a fair and true one within the meaning of the contract, if the insured had never had an affection of that organ which amounted to disease; that is, of a character so well defined and marked as to materially disturb or derange for a time its vital functions; that the question did not require him to state every instance of slight or accidental disorders or ailments affecting the liver which left no trace of injury to health, and were unattended by sub-giving the preference to the first attachment, in its stantial injury or inconvenience or prolonged suffering. Conn. Mut. Life Ins. Co. v. Union Trust Co. Opinion by Harlan, J. [Decided Nov. 17, 1884.]

UNITED STATES CIRCUIT AND DISTRICT
COURT ABSTRACT.*

MORTGAGE FORECLOSURE-ASSIGNEE OF MECHANIC'S LIEN-NECESSARY PARTY-PURCHASER AT SALE-UN

DER MECHANIC'S LIEN CANNOT BE EJECTED.-(1) An assignee of a mechanic's lien is a necessary party to a suit to foreclose a mortgage given after the lien commenced, although the mortgagee had no knowledge of the existence of the same and the mortgage was filed of record before the commencement of statutory proceedings to enforce said lien. (2) A purchaser at the sale of such a mortgage by advertisement acquired no right to eject a purchaser at a sale made under final decree in proceedings to enforce the mechanic's lien, the mortgagee under above circumstances being in the position of a subsequent incumbrancer to the mechanic's lien holder.

Cir. Ct., D. Minn., Oct., 1884. Atkins v. Volmer. Opinion by Nelson, J.

*Appearing in 21 Federal Reporter.

ica, 16 Law Rep. 264; The Fanny, 2 Low. 508; The E. A. Barnard, 2 Fed. Rep. 712; The City of Tawas, 3 id. 170; The J. W. Tucker, 20 id. 129; The Superior, 1 Newb. Adm. 186. And to the same general effect: The Æoliau, 1 Bond, 237, 270; The Fort Wayne, id. 476, 490; The Kate Hinchman, 6 Biss. 367; The Phebe, 1 Ware, 360. In support of his motion the libellant relies on Ben. Adm. (2d ed.), § 560, where it is said: "In claims of the same rank, the one first commencing his proceedings is preferred in the distribution. The party first seizing holds the property against all other claims of no higher character." And we are referred to The Globe, 2 Blatchf. 427, note; The Adele, 1 Ben. 309; Woodworth v. Ins. Co., 5 Wall. 87. The last case cited stands on grounds of its own, and has no application to the case at bar. By the maritime law the creditors of the same rank have an equal lien or privilege on the vessel. An eager and grasping creditor ought not to have it in his power to destroy this equality of privilege, and obtain a preference, by the mere act of instituting the first suit to enforce the lien. Such a rule would be unjust to the other creditors, prejudicial to the owners of vessels, and injurious to the interests of commerce. It would tend to hasten and foster litigation, and would introduce into the maritime law that unseemly struggle between creditors themselves pro duced by the rule of law which gives the preference to the creditor first attaching. We know the rule at law

practical operation, is often oppressive on debtors and
unjust to creditors. For these reasons it has been
abolished in a good many States, and the first attach-
ment made to perform the office, in some measure, of
a proceeding in insolvency or bankruptcy, for the
equal benefit of all the creditors proving their debts
within a limited time. The tendency of legislation
and the courts is toward the adoption of rules to pre-
vent preferences. But the injurious consequences of
rewarding the most exacting creditor with a prefer-
ence would, for obvious reasous, be much greater in
admiralty than they are at law. Dist. Ct., E. D. Ark.,
Oct., 1884. The Lady Brone. Opinion by Cald-
well, J.

SHIP AND SHIPPING -COLLISION
LIGHTS-MUTUAL FAULT-NEGLIGENCE

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OBSERVING DECKHAND,

INJURED SEVERAL LIABILITY.-A tug is bound to keep her colored lights in such a position that her tow will not obscure them, as respects vessels at a distance requiring the notice which the colored lights are designed to afford. Where the Tug T. had on her starboard side the barge M. in tow, loaded with railroad cars, partly sheltered by a narrow fore and aft roof called an umbrella, which was of such height as to obscure the tug's green light as she was going up the North river, and steamer H., crossing the river to the

northward and seeing no colored light, supposed the T. was going down river instead of up river, and ported so as to go astern of the T., as she supposed, but too late discovered the error and came in collision, held, that the collision was caused in part by the obscuration of the green light, for which the T. was responsible. Held, that the H. was also in fault for want of any proper lookout, when going at the rate of thirteen miles in crossing the river, as such a lookout might have discovered that the T. was going up river in time for the H. to avoid her. A deck hand on the H. having been injured by the collision without his own fault, held, that he had a several claim for his whole damages against the T., and the T. being responsible, and having a right to indemnity from the H. for one-half what the T. must pay by reason of the common fault of both vessels, held, that the usual de. cree might go against both, without considering the question whether the deck hand, as a fellow laborer, could have maintained a separate suit against the H. or her owners alone. It is unnecessary to consider the question which has been raised by counsel, whether the deck hand on board the H., is precluded from recovering any damages of her, or of her owners, by reason of any fault in her navigation, on the ground that he was a fellow-servant of the pilot in charge. The T., being in fault, is answerable for the whole damage caused him, aud the liability of the T. is not a mere joint liability with the H., though both are found in fault. The T., for its tort, is severally liable for the whole damage. The Atlas, 93 U. S. 302; Chartered Mercantile Bank v. Netherlands, etc., 9 Q. B. Div. 118; 10 id. 521, 546. The defense that he was a fellow-laborer with the pilot of the H., even if possible to the H., would be no defense to the several liability of the T. In having to pay for his injuries, the T. sustains damages by the collision to that extent, as much as if the injury were to cargo on board the T. or the H., for which she was bound to pay; and as this injury arose from the fault of both vessels, the H. must auswer over for half of what the T. is obliged to pay; and the T. being answerable for the whole damage, has a right to require the H. to pay one-half of what she will be obliged to pay to him on account of the common fault of both. The Eleanora, 17 Blatchf. 88105; The Hudson, 15 Fed. Rep. 162, 164; The Canima, 17 id. 271, 272; The C. H. Foster, 1 id. 733. There is no evidence of any personal negligence on the part of the deck hand. He was not assigned to duty as lookout, so far as appears, and he was apparently engaged in other duties. It was not his business to leave the duties assigned him and to act as lookout without orders. Dist. Ct., S. D. New York, July, 1884. Briggs v. Day. Opinion by Brown, J.

LIMITATION-RUNS FROM DISCOVERY OF FRAUDSLIEN OF JUDGMENT-BONA FIDE PURCHASER-TITLE THROUGH UNRECORDED DEED-RIGHTS OF PURCHASER. -(1)The making of a deed to defraud creditors, and keeping it off of the record by all of the persons concerned in and cognizant of the transactions, combined with their purposed silence upon the subject, is such a concealment as will prevent the statute of limitations from running until there has been a discovery of the fraud. See Meader v. Norton, 11 Wall. 442; Carr v. Hilton,1 Curt. C. C. 238; Vane v. Vane, L. R.,8 Ch. App. 383; Rolfe v. Gregory, 4 De G., J. &. S. 576; Hovenden v. Annesley, 2 Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. Cited to the contrary: Wynne v. Cornelison, 52 Ind. 319; Jackson v. Buchanan, 59 id. 390; Musselman v. Kent, 33 id. 458; Pilcher v. Flinn, 30 id. 202; Boyd v. Boyd, 27 id. 429. (2) The doctrine that the general lien of a judgment upon land is subject to any and all adverse equities or claims, whether secret and unknown, or recorded and known, does not pre

vail in Indiana against an assignee of a judgment who pays value and takes the assignment in good faith. Flanders v. O'Brien, 46 Ind. 284; Huffman v. Copeland, 86 id. 224, and cases cited. The complainants however sue, not as assignees, but as judgment plaintiffs, and are therefore subject to the general doctrine, SO far as it is pertinent to the question presented; but in my judgment it has little or no application. The policy of the recording acts is not involved or material to be considered, except incidentally, because the deeds in controversy are not assailed for want of registration, but for alleged fraud in their execution. The attack is not made under the recording act quoted from in argument, but under another section (Rev. Stat. 1881, § 4920), which declares that all conveyances of lands made with intent to defraud creditors "shall be void as to the persons sought to be defrauded;" and only as it may affect the rights of parties under this act can it be material to consider the law concerning the registration of deeds. The question presented therefore is whether or not, under the facts alleged in the bill, the respondents who demur can claim title under unrecorded deeds, of which they had no knowledge when they purchased, to the injury of the plaintiffs, as against whom the deeds were in fact fraudulent and void, or voidable. As against a prior mortgage or deed honestly made to a good-faith purchaser, the general lien of a judgment must unquestionably yield; but this by no means supports the proposition involved in the facts presented, that one may take a title apparently perfect of record, and which seems of record to be, as in fact by law it is, subject to the lien of a judgment, and afterward upon learning that fraudulent deeds had been made, be allowed to claim title through them in order to defeat the lien of the judgment, though at the time of his purchase he had no knowledge of the existence of the deeds, and supposed he was getting the title as it appeared of record. It is true that the owner of land, or one asserting title, is bound by the contents and recitals of all deeds in the chain of title which he claims. But it is not true, as I suppose, and has never been decided, that a purchaser is bound by the contents of unrecorded and unknown deeds which were not essential to the chain of title as it appeared of record, or as otherwise made known to him. It often happens, as may well be supposed, honestly as well as for fraudulent purposes, that titles after various mesne conveyances return to some prior owner, and if the conveyances which constitute such a loop in the chain of title should, for any reason, have been left off the record, it would be a startling proposition indeed that all subsequent grantees must take notice of their contents. Under such a doctrine, if not positively dangerous, the registry laws would certainly be made comparatively useless. Cir. Ct., D. Ind., Sept. 6, 1884. McAlpine v. Hedges. Opinion by Woods, J. [ (1) See 24 Am Rep. 45, 517; 31 Eng. Rep. 723.-ED.]

MISSOURI SUPREME COURT ABSTRACT.*

ADMINISTRATOR'S SALE-ERROR IN DEED-EQUITY TO TITLE-Where a purchaser of land at administrator's sale pays the purchase-money, and the same is applied in discharge of the debts of the decedent, but the land is not correctly described in the administrator's deed, an assignee of the purchaser will be entitled to a decree in equity correcting the error and divesting the legal title to the land out of the heirs of the decedent and vesting it in him. Grayson v. Weddle. Opinion by Henry, J.

To appear in 80 Missouri Reports.

REPLEVIN-EXCESSIVE TAX.-Replevin will not lie against the collector of taxes to recover personal property seized to satisfy a tax levied by the proper officer, and it does not matter that the levy is excessive, and that fact is apparent on the face of the tax-book; citing Rubey v. Shain, 54 Mo. 207; and Ranney v. Bader, 67 id. 476, and distinguishing Henry v. Bell, 75 id. 194. Mowrer v. Helferstine. Opinion by Henry, J.

ADMINISTRATION-ORDER OF SALE OF REAL ESTATE, IMPEACHMENT OF.-Au order of sale of real estate is not such a final order as will conclude the heirs of the decedent from showing, upon the incoming of the report of sale, that there are no debts, or that there are personal assets sufficient to pay all debts, or any other fact tending to show that the order ought not to have been made. Merritt v. Merritt, 62 Mo. 150; Henry v. McKerlie, 78 id. 416. Fenix v. Fenix. Opinion by Martin, Comr.

CLOUD ON TITLE-CHANGE OF VENUE-VOID DEED. -In an action against several defendants, originating in Hickory county, some of the defendants applied for a change of venue, and the court ordered a change, as to them, to Pettis county. The court in Pettis county afterward rendered judgment against one of the defendants who had not joined in the application for the change, and who never appeared to the action and was served only by publication; and his land was sold to satisfy the judgment. In a suit brought by this party to set aside the sheriff's deed, these facts, among others, appearing in the petition, held, that the petition was bad on demurrer; that the court in Pettis county obtained no jurisdiction of this party; that the judgment was therefore a nullity as against him, and the deed was void, and so there was nothing upon which a court of equity could act. Janney v. Spedden, 38 Mo. 396; Odle v. Odle, 73 id. 289. Sherwood, J., agreed that no title passed by the sheriff's deed, but held that it was a cloud upon the plaintiff's title, which ought to be removed by a suitable decree. Holland v. Johnson. Opinion by Ewing, Comr.

EVIDENCE-BOUNDARY OF LAND-DECLARATIONS OF PERSON IN POSSESSION.-In ejectment for a strip of land lying on the dividing line between plaintiff and defendant, defendant had offered evidence of acts and declarations of plaintiff's grantor, since deceased, tending to fix the line as claimed by defendant. Plaintiff in rebuttal offered evidence of declarations to the contrary made by his grantor while in possession. Held, that this latter evidence was competent. The court did not err in admitting the statement of Mrs. Jeffries in evidence. She was the owner and in possession of the land at the time the declarations were made and has since deceased. 1 Greenl. Ev., § 109, and authorities cited in note b; also Hunnicutt v. Peyton, 102 U. S. 333; Darrett v. Donnelly, 38 Mo. 493; State to use, etc., v. Schneider, 35 id. 533; Burgert v. Borchert, 59 id. 80. See note to Deming v. Carrington, 30 Am. Dec. 595; S. C., 12 Conn. 1. In the State of Massachusetts where this subject has been much discussed, it is held that to be admissible such declarations must be made by persons in the possession of land, and in the act of pointing out their boundaries. Bartlett v. Emerson, 7 Gray, 174; Daggett v. Shaw, 5 Metc. 223; Long v. Colton, 116 Mass. 414. The declaration derives its force from the fact that it accompanies and qualifies an act and is thus a part of the act. Bender v. Pitzer, 27 Penn. St. 333. The weight of authority seems to be that in questions of private boundary declarations of particular facts, as distinguished from reputation, are admissible in evidence when made by persons in possession of the land when the declarations are made, or who are on the land at the time, and are shown to have knowledge of that whereof they speak. 102 U. S. 333. Lemmon v. Hartsook. Opinion by Ewing, Comr.

MAINE SUPREME COURT ABSTRACT.*

SALE-CONDITIONAL-MEANING OF WORDS QUESTION FOR JURY PRACTICE SUBMITTING CASE WEIGHT OF EVIDENCE.-(1) A sale of a horse to be kept by the seller till a future day, and if then brought to the purchaser to be paid for, there being no payment or formal delivery, and the purchaser obtaining no possession further than that the horse was present when the conversation took place, is not a sufficient sale and delivery against one in the condition of a subsequent purchaser. The first sale was conditional only. (2) It is the province of the jury to find what words were used and the meaning of them, where an oral bargain is made. But the court may inform the jury what interpretations of the language used would be possible and permissible, and the jury must determine the meaning within the limits prescribed. (3) A judge may withhold a case from the consideration of the jury when there is no evidence upon which they can in any justifiable view find for the party producing it, upon whom the burden of proof is imposed. (4) It is not enough to require submission to a jury, that there may be a crumb or scintilla of evidence. It must be evidence of legal weight. Beaulieu v. Portland Co., 48 Me. 291; Brown v. E. & N. A Railway, 58 id. 384, and cases; Rourke v. Bullens, 8 Gray, 549. Connor v. Giles. Opinion by Peters, C. J.

CONTRACT-SALE OF LAND-RESCISSION-RIGHTS OF SELLER AND PURCHASER.-A contract was made between two persons for the sale by one to the other of a lot of land. The purchaser made a part payment and went into the possession and occupation of the premises. Afterward the contract was rescinded and the purchaser brought an action for what he had paid toward the land and recovered without any deduction for the use of the premises. Held, in a writ of entry by the seller, that he was entitled to recover with the land the value of the rents and profits. Harkness v. McIntire. Opinion by Libbey, J.

LIMITATIONS ADMINISTRATOR STATUTE 1872,

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INSANE PERSON

CHAPTER 85. - The limitations of the statute 1872, chapter 85, for presenting claims against an estate to the administrator, and bringing an action thereon, apply to claims held by an insane person, though such person has no guardian during the two years next after the notice of the appointment of the administrator. Baker v. Bean, 74 Me. 17; Hall v. Bumstead, 20 Pick. 2; Van Steenwyck v. Washburn, 28 Alb. L. J. 483. Whether sound public policy required an exception from the limitation in favor of insane persons and infants, was a question for the determination of the Legislature. It did not deem it wise to make such exception. A construction by the court making it would be judicial legislation. We know no rule for the construction of statutes which would authorize it. Rowell v. Patter Opinion by Libbey, J.

son.

NEGOTIABLE INSTRUMENT-FAILURE OF CONSIDERATION-PAYMENT IN GOODS-BANKRUPTCY OF MAKER. -Plaintiff held notes against defendant; defendant delivered goods to plaintiff in payment of the notes; before the notes were surrendered by plaintiff the defendant was declared a bankrupt and the sale became thereby void. Held, that the plaintiff could recover upon the notes upon the ground that the consideration for a promised surrender of the notes had failed. The assignment in bankruptcy, by its retroactive effect, rendered the sale to the defendant void. A vendor in possession impliedly warrants his title to the thing sold. Thurston v. Spratt, 52 Me. 202; Huntingdon v. Hall, 36 id. 501. For the breach of warranty, *To appear in 76 Maine Reports.

Crom. M. & R. 223; Rideal v. Fort, 11 Ex. 847; Magnay v. Burt, 5 Q. B. 381. In a note to Stokes v. White, supra, in the edition by Hare and Wallace, careful annotators, it is said, upon the authority of the cases determined in the Court of Exchequer Cham

or failure of consideration, the purchaser can rescind. Marston v. Knight, 29 Me. 341; Bryant v. Isburgh, 13 Gray, 607. Suing the note rescinds the sale. The defendant contends that the object of the sale was to defraud the seller's creditors. He cannot set up such a defense. Butler v. Moore, 73 Me. 151. The pur-ber, that "an arrest by the sheriff, under a writ from chaser does not get that for which he was to pay. It is the same rule as that which applies in favor of a buyer who buys forged shares in a corporation; or forged bills or notes; or who gets an article different from that which was described in the sale. He can recover back money if he paid money; or recover in specie any property passed over to the seller. Here the buyer has in his own hands the note which he was to surrender for the goods, and can collect the same. Eichholz v. Banister, 17 C. B. (N. S.) 708; Chapman v. Speller, 14 Q. B. 621; see Benj. Sales (3 Am. ed.), § 423, and cases in note. Sup. Ct. of Maine, May 5, 1884. Maxwell v. Jones. Opinion by Peters, C. J. (76 Me. 135.)

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PROPER.-An action for damages does not lie against a plaintiff for the arrest upon civil process of a defendant who was at the time privileged from arrest as a witness returning home from court. The precise question here presented has not received very much attention from courts, and there is an almost total absence of judicial expression in favor of the plaintiff's position where the privilege is at common law and not by statute. The remedy by action was established long ago in New York by statutory enactment, which is an implication that the remedy did not exist there at common law. And this accounts for intimations in cases in that State that damages for a breach of the privilege are recoverable. Paine and D. Prac. Arrest; Suelling v. Watrous, 2 Paige, 314; Salhinger v. Adler, 2 Robt. 704. Some Euglish statutes give a right of action in some cases, or establish other special remedy, for a violation of the privilege of freedom from arrest; from which an implication arises that no such remedy exists at the common law in that country. Tidd's Practice lays down the various remedies that are available for a violation of the privilege from arrest belonging to witnesses and all other persons or parties in necessary attendance upon courts, and omits all mention of a right of action for damages. Text writers generally are silent upon the question. In 2 Add. Torts (4th Eng. ed.), 796, it is said however that "the privilege does not form the ground of any action at law." And in Cooley's Con. Lim. (5th ed.) 162 (*135), it is said, in note: "The arrest is only voidable; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus." Not many decided cases touch the point. The early experimental actions were against officers, and all of them failed. But much of the reasoning of the courts really went against any action, disregarding any distinction between officer and party. The early cases are cited and commented upon in Carle v. Delesdernier, 13 Me. 363. See Chase v. Fish, 16 id. 132. Some phases of the question are touched in later cases. Wilmarth v. Burt, 7 Metc. 257; Aldrich v. Aldrich, 8 id. 102; Edward Thompson's Case, 122 Mass. 428; Person v. Grier, 66 N. Y. 124. Several English cases take strong ground against the maintenance of such an action. In Yearsley v. Heane, 14 M. & W. 322, it is said: "The protection is limited to the fact of the individual so arrested being entitled to be discharged." In the same case it was said by Pollock, C. B., "Did the Legislature mean to give more than this, that if the party was arrested he might be discharged, whereby he has the full benefit of the protection? I think not." Ewart v. Jones, 14 M. & W. 774; Stokes v. White, 1

any of the Queen's Courts, of a person privileged from arrest by reason of attendance as a witness under the process of another court, does not form the ground of any action at law for damages, but is only the subject of an application to the court, under whose authority the party had been compelled to appear as a witness; the privilege being, not that of the person, but that of the court, and therefore of discretionary allowance." Smith v. Jones. Opinion by Peters, C. J.

MINNESOTA SUPREME COURT ABSTRACT.

NEGLIGENCE

RAILROAD COMPANY -PROXIMATE CAUSE DEFECTIVE MACHINERY - PRESUMPTION OF DUTY TO INSPECT.-(1) In the operation of a freight train in the night the train broke apart, and the forward part of the train, being afterward stopped, was run into by the detached rear cars, including the caboose, and the conductor, who was in the caboose, was killed by the collision. Evidence considered as showing that the immedate cause of the breaking apart of the train was the letting off of a brake on one of the rear cars from the jar of the car in its motion, the brake being so worn that it would not remain wound up when the car was in motion. The fact that a sudden increase of the speed of the locomotive may have contributed with the defective brake to cause the train to break apart does not prevent the defective brake being deemed a legal and proximate cause of the result. Considered further that the stopping of the forward part of the train, and the subsequent collision and injury, may be referred to the defective brake as a proximate cause, within the principle that the wrongdoer is responsible for injuries which might reasonably have been anticipated as a result of his misconduct. Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. 488; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Campbell v. City of Stillwater, 20 N. W. Rep. 320. The subsequent collision is further removed from that cause in the order of events, but is it so in its causal relation? The answer, upon principles recognized as being within the scope of the maxim causa proxima non remota spectatur, is not difficult. The principle is well settled that a wrong-doer is at least responsible for all the injuries which resulted as natural consequences from his misconduct-such consequences as might reasonably have been anticipated as likely to occur. Griggs v. Fleckenstein, supra; Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74; Johnson v. Chicago, M. & St. P. Ry. Co., supra; Martin v. North Star Iron Works, 18 N. W. Rep. 109; Savage v. Chicago, M. & St. P. Ry. Co., id. 272; Railroad Co. v. Kellogg, 94 U. S. 469; Lane v. Atlantic Works, 111 Mass. 136; Hill v. Winsor, 118 id. 251; Fairbanks v. Kerr, 70 Penn St. 86; Sheridan v. Brooklyn City, etc., R. Co., 36 N. Y. 39; Lake v. Milliken, 62 Me. 240; Weick v. Lander, 75 Ill. 93. And whether the injury in a particular case was such natural and proximate result of the wrong complained of, is ordinarily for the determination of the jury. (2) The use by a servant of defective and unsafe machinery delivered to him for use by the master, although the servant may have been guilty of negligence in using it, does not relieve the master from responsibility to a fellow servant injured thereby on account of the unsafe condition of the machinery furnished. Drymala v. Thompson, 26 Miun.

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