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known intemperate habits who was already intoxicated, was such "unlaw ful violence or negligence" as would render the innkeeper so doing, liable to respond in damages for any injury causing death, at the suit either of the widow, children, or parents of the decedent: Ib.
After the Act of 1854, the furnishing of liquor to an intemperate man, which was before that time unlawful under the laws of Pennsylva nia, would clearly be an act of " unlawful negligence," within the meaning of the Act of 1851: Ib.
The act of the decedent in taking the liquor offered to him while intoxicated, is not such concurring negligence in him as would relieve the defendant from liability in damages; for it was not a responsible concur. rence, and the Act of 1854, which makes it a misdemeanor to furnish an inebriate liquor, does not make the drunkard responsible for accepting the furnished liquor, nor take any notice of his act whatever: Ib.
It is not the party whom the inebriate injures, only, who can sustain an action for damages under the statutes; by the Act of 1854, “any person aggrieved" may sue, and the widow is a person "aggrieved" by the death of her husband, by the Act of 1855, under which she has her action: Ib.
Public policy and the statute law of Pennsylvania alike forbid that liquor should be furnished to one who is either at the time intoxicated, or who is habitually intemperate, though not presently intoxicated: Ib.
SUPREME COURT OF MASSACHUSETTS.1
Specific Performance not decreed upon Defective Title.-A court of equity will not compel one who has agreed to purchase land to accept a title so doubtful that it may be exposed to litigation: Richmond vs. Gray.
A decree for specific performance of an agreement to purchase land wil not be ordered, if the vendor could not make a good title thereto at th time when, by the terms of the agreement, he was to deliver a des thereof, or for more than six months after the vendee declined to acce a deed on account of a defect in the title; although he may be able to so at the time when the decree is sought for, or the bill filed: Id.
If one who has agreed to purchase land enters into possession there
From Charles Allen, Esq., State Reporter; to be published in the forthcom volume of his Reports.
by consent of the vendor, and makes changes therein, by removing a cellar wall, cutting trees and exercising other acts of ownership, before the delivery of a deed, he will not for these reasons be compelled by a court of equity to accept a defective title, if he abandons the possession as soon as he learns of the defect: ld.
Bill of Lading not conclusive as to Property not Shipped.--A bill of lading is conclusive evidence against the master of a vessel in favor of a consignee, not a party to the contract, who has advanced money upon the faith of its statements, as to the amount and condition of the property of which it acknowledges the receipt, so far as from the whole instrument and usage of trade the facts may be regarded as absolute statements from the master's own knowledge; but it is not conclusive against the owners, as to property not actually shipped, because it is not within the scope of the master's authority from the owners to sign bills of lading for any property but such as is put on board: Sears vs. Wingate.
In an action by the owners of a vessel, of whom the master is one, to recover freight for goods actually carried, delivered and accepted, the consignee cannot recoup in damages a loss sustained by him by reason of a failure to deliver cargo never actually put on board, but which the master, without other authority than belonged to him in that capacity, improperly receipted for in the bill of lading. The proper remedy is by an action against the master, or the consignor: Id.
Administration granted before Death void-Savings Bank.-A depositor in a savings bank may maintain an action to recover the amount of his deposit, although, upon production of the deposit book, the bank has paid the amount due to one who has been appointed as his administrator under the erroneous belief that he was dead, after he had been absent for more han seven years without being heard from: Jochumsen vs. Suffolk Sav 18 Bank.
By-laws of a savings bank which provide that "upon the death of any sitor, the money standing to his credit shall be paid to his legatee, or it-law, or legal representative," and that "it is agreed that such payshall discharge the corporation," and that, "as the officers of this tion may be unable to identify every depositor transacting business office, the institution will not be reponsible for loss sustained where tor has not given notice of his book being stolen or lost, if such paid in whole or in part on presentment," and that" persora
shall receive any part of his principal or interest without producing the original book," will not prevent a depositor from maintaining an action against the savings bank to recover the amount of his deposit, which, upon production and delivery to it of the deposit book, it has paid to one who has been appointed administrator of the depositor, under the erroneous belief that he was dead, after he had been absent for more than seven years without being heard from: Id.
COURT OF APPEALS OF NEW YORK.1
Town, Erection or Division of-Form of Proceedings-Regularity to be presumed. The question whether a town has been legally erected may be tested in an action in the nature of a quo warranto against one claiming to exercise the office of supervisor of such town: The People vs. Carpenter.
The act of a board of supervisors dividing a town and forming a new one from a portion thereof, only described the dividing line: held, that the uncertainty was cured by the reference in such act to the petition, &c.. upon which it was founded, and from which it appeared that the new town was to lie south of the line of division, and by proof aliunde that the place named in the act for holding the first town meeting was south of such line: Id.
The statute (ch. 194 of 1849) does not, it seems, require that the published copy of notice of the application of twelve freeholders for the erestion of a new town shall contain the names of such applicants. It is sufficient that the notice posted should be thus subscribed: Id.
An affidavit stating that a notice was left with another person to be posted up, "which was done," construed as a positive averment of the posting: Id.
The act of the supervisors is, it seems, one of a legislative character in favor of the regularity of which all presumptions are to be indulgel Those who would impeach it, have the burden of disproving a compliance with the conditions imposed by law as a requisite to the exercise of the power: Id.
Surrogate, Jurisdiction of— When Decree may be opened.—The effect of the repeal in 1837 (ch. 460, § 71), of the restrictive clause in respect
1 From E. P. Smith, Esq., State Reporter.
to the jurisdiction of surrogates' courts (2 R. S., p. 221, § 1), is to restore to such courts the incidental powers possessed by them previous to the Revised Statutes: Sipperly vs. Baucus.
A surrogate has the power to open a decree made by him on the final accounting of an administrator, and to require a further account in respect to a sum received by him with which he had charged himself, as $14.80 instead of $1480: Id.
There is no positive limitation of the period in which such application may be made, and the lapse of four years does not of itself import laches: Id.
Corporations-Power to Commute for Taxes, where Profits below 5 per cent-The act (ch. 654 of 1853), allowing corporations which have not received net annual profits equal to five per cent. upon their capital, to commute for taxes is applicable only to corporations which have been in existence for a full year before the assessment is made: The Park Bank VS. Wood.
Held, accordingly, that a bank which had been organized only three months was liable to be taxed for the full amount of its capital, though its income and profits were less than five per cent.: Id.
Will.-A will, after bequests of two small legacies, contained the following clauses: Third. I give and devise to my beloved wife, A. B., all my real and personal estate, together with any and all estate, right or interest which I may acquire after the date of this will, as long as she shall remain unmarried and my widow. Fourth. I give and bequeath to my beloved wife, A. B., all my household furniture, wearing apparel and all the rest and residue of my personal property." The testator died childless. Held, that she is entitled to take absolutely the furniture, wearing apparel and other personal property of the same kind, and the income, but not the principal, of the productive personal estate during her widowhood: Dole V8. Johnson.
Evidence-Attesting Witness-Agency-Ratification.-The execution of a witnessed instrument which is offered in evidence by one who is a party to it cannot be proved without calling the attesting witness, if he is living, competent and within reach of the process of the court; and this rule is not altered by the passage of a statute authorizing parties to testify: Brigham vs. Palmer.
If one assumes to sell the property of another and takes in payment a note running to himself, the owner of the property cannot sustain an action for goods sold and delivered against the purchaser: Id.
Promissory Note-Notice to Indorser.—It is sufficient to fix the liabi lity of the first indorser of a promissory note, if on the day of its dishonor a duplicate notice for him was inclosed by a notary to the second indorser, who, immediately after receiving it, deposited it in the post office, properly addressed to him; although he lives in the same town where the note was payable and protested, and the second indorser lives in another town: True vs. Collins.
A notice addressed to "Mrs. Susan Collins, Boston," is prima facie sufficient to charge her as an indorser, if she lived in Boston: Id.
Action-False Representations.-The owner of land who has directed an agent to erect a house at a particular place thereon cannot maintain an action against a third person who, by false representations as to the true boundary line of the land, has induced such agent in the owner's absence, to erect the house at a different place: Silver vs. Frazier.
Accord and Satisfaction-Promissory Note.-Payment of less than the face of several promissory notes, a portion of which are not due, is a good satisfaction of all of them, if upon the receipt and acceptance of the same by the holder the notes are given up to the maker: Bowker vs. Childs.
Equity-Reformation of Written Instruments.-In order to sustain a bill in equity to reform a deed on the ground of mistake, there must be full and satisfactory proof that it does not conform to the oral contract as understood by either party: Sawyer vs. Hovey.
Promissory Note-Composition.-A promissory note for the balance due to a creditor of the maker, over and above the amount paid to him under an agreement for composition, given after the maker has been dis charged thereby, but in fulfilment of an oral promise by which the credi tor was induced to sign the same, is invalid in the hands of the payee: Howe vs. Litchfield.
Bill of Exchange-Discharge of Indorser.-If the holder of a bill of exchange makes a valid compromise with the assignees of the acceptor, who is insolvent, by which the proof of the claim is withdrawn and the insolvent estate released, he thereby discharges from liability a stranger to the bill who wrote his name upon the back of it before its delivery: Phoenix Cotton Manufacturing Company vs. Fuller.
Way.-A town is not liable in damages to one who, while stopping in the highway for the purpose of conversation, leans against a defective