About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

5 Am. Law. 124 (1897)
Syllabi-Digest

handle is hein.journals/amlyr5 and id is 128 raw text is: 124 THE AMERICAN LA WYER realty so devised, and that it was the primary fund for their payment, and the charge of the lagacles was superior to the lien of the mortgage. A judicial decision on realism in fiction was lately pro- nounced by the French court that dismissed a libel suit brought by M. Turpin, the inventor of melinite, against Jules Verne. Said these judges: A novelist cannot be forbidden to draw inspiration from notorious facts and from well-known person- alities for the purposes of a work of imagination, or to trans- port into the realms of fancy certain public characters and cer- tain public events; for if novelists and dramatic authors were not allowed to draw -their characters from real life, from things which have actually occurred, to draw inspiration from the sight of some great act or shameful crime, for the purpose of arousing admiration or abhorrence in the hearts of the public, it would become necessary to forbid the publication of novels and to close the theatres. Deed by Husband to Wife, Unrecorded.-The late Capt. Henry A. Burden of Long Island City, more than twenty years before his death, which occurred in 1895, conveyed real estate through an intermediary to his wife, Lavinia, and the deed of transfer, though not recorded, was actually delivered to her upon the day of its execution, and has always been retained by her. In a suit by Walter A. Burden and other children of the deceased against their mother, to set aside these conveyances, as being a cloud on their title as heirs at law, the Appellate Division of the Supreme Court, in Brooklyn, N. Y. Justice Willard Bartlett, giving the opinion, has affirmed the judgment below, dismissing the complaint, holding that the mother, Mrs. Burden, could successfully resist the action, notwithstanding the fact that the grantor, up to the time of his death, retained possession of and paid taxes upon all the property except two portions which he, subseqently to the conveyance to his wife, copyeyed to other persons by deeds in which she joined. Statute of Limitations.-Robert C. Watson, when sued Jointly with a partner by Daniel H. Bennett for a balance of indebtedness, interposed the statute of limitations as a defense. The debt had accrued in October, 1885, but the summons was not served until May, 1894. Watson went to Florida in 1889, and in June, 1890, returned here, but after a month went to Europe with his family, and remained there continuously for three years. Defendant claimed, however, that this period was not to be deducted from the six years' limitation, because 'he was not then rasiding out of the State under the decision of the Court of Appeals recently given, holding that it was not enough to show that a dependant had remained continuously absent from the State, but it must also be shown that he had during that -time resided out of the State. Traveling for pleasure out of the State while having a house or place of residence here did not bring the case within the statute, but there must be evi- dence that the defendant acquired a residence or resided else- where. Justice Daly (New York), before whom the case was tried, recently gave judgment for plaintiff, holding that it hav- ing been shown that defendant had no residence or place of business in New York, and that he did have a place of residence in Ebrope during the whole period of ihis absence, he was con- tinuously out of the State within the meaning of the law. Proximate Cause of Injury.-Frederick W. Schalscha, a professional musician, signaled to 'the gripman of an open car on the Third Avenue Railroad, New York city, to stop; the signal was answered and the car came to a complete standstill. Schalscha grasped a stanchion of the car and placed one foot on the step, but before he could get 'the other foot thereon, the conductor started the car. The jerky movement of the car in starting threw the plaintiff to one side and his violin case struck a pillar of the elevated railroad, tearing the box apart and splitting and otherwise injuring the violin. The Appellate Term of the Supreme Court, Justice McAdam giving the opinion, af- firmed the judgment below in favor of the plaintiff, holding that the carrier must allow a passenger a reasonable time to get on and off the car, and, if while doing ,so the car is started suddenly and so as to produce a jerking motion,, it is in and of itself an act of negligence; that the injury to 'the violin was the direct consequence of the defendant's negligbnce and the ap- proximate cause of the injury, and that the plaintiff was en- titled to recover the expense of repairing the violin and the dif- ference between its value before the injury and after the repair. Attorney's Lien.-In 1889 certain real estate was conveyed to J. A. Bushe by Kate B. West, and in 1891 she sued to have the deed set aside on the ground that it was procured from her by her husband, Stephen A. West, upon false representa- tions respecting the purpose of 'the conveyance. The action re- sulted in declaring that Mr. Bushe held the property for the benefit of Mr. West only, and thereupon Mr. Bushe, at West's request, deeded the property to A. S. Bacon, 'who executed a declaration of trust that he was holding it for West free from ,his wife's dower. Then, in an action by West to enforce the trust, the court on the trial gave judgment directing the con- veyance on condition that plaintiff satisfy a bill of $500 for ser- vices rendered by the defendant in the previous suit, which re- sulted in plaintiff's recovery of the real estate in question and the establtshment of his title. The Appellate Division (New York), Justice Patterson giving the opinion, 'has directed an affirmance; holding that while the court has no equitable power to charge oi the land any general claim for his attorney's ser- vices, yet the lien of the attorney iir this case attached to the land, as the proceeds, adjudged to belong to the client, of the previous suit, and the attorney was entitled to enforce that lien. Presiding Justice Van Brunt dissented. SYLLABI-DIGEST. An Accurate and Complete Index to every Important Point of Interest to Com- mercial, Corporation and Banking Attorneys, in the Latest Current Cases decided by the highest State and Federal Courts. ABBREVIATIoss.-Atl Rep., Atlantic Reporter; Fed. Rep., Federal Reporter; N. Y. Supp., New York Supplement; N. E. Rep.. Northeastern Reporter; N. W. Rep.. Northwestern Reporter; Pa. Rep., Pacific Reporter; S. E. Rep., Southeast- ern Reporter; S. W. Rep., Southwestern Reporter; 8 C. Rep., United States Su- preme Court Reporter; So. Rep., Southern Repo'rter; Cir. Ct. App. United States ircuit Court of Appeals; Sup., Supreme Court; App., Appellate Court; Ch., Chan- ery Court; N Y. S. Rep., New York State Reporter. [7 THE FULL TEXT OF ANY CASE CITED IN THE COLUMNS OF THIS JOURNAL WILL BE FURNISHED AT REASONABLE RATES ADVERSE POSSESSION. Adverse possession can ot be constituted by cutting timber from land, unless for the statutory period, and done without long intervals. Cook v. Lister, (Tex. Civ. App.,) 38 S. W. 380. Living on wife's land and paying taxes, husband does not, acquire advere possession. Beagle v. Beagle, (Pa.) 36 Ati. 191. The plAcing of land by executor in inventory of decedent, war- rants a finding that his possession was not an adverse one. McCelvey v. McCelvey, (Tex. Civ. App.) 38 S. W. 473. Though the title to the supporting land, may be in another, title may be established to building by adverse possessi,n. Fairbanks v, San Francisco 4' N. P. By. Co., (Cal.) 47 Pac. 450. APPEAL AND ERROR. Defendants by order of court required to deliver property to re- ceiver, which is in possession of others, is appea able. Hall v. Donavan, (Mich.) 69 N. W. 643. Abandonment of appeal is made by failure to file transcript. Bell v. McCoy, (Mo.) 38 S. W. 329. The theory of a party cannot be changed on appeal. Lewis v. Stanley, (Ind. Sup.) 45 N. E. 693. Unless a specific assignment of errors are made in a brief they cannot be considered. Busenbark v. Park, (Kan. App.) 47 Pac. 324. Evidence is not to be stated in the bill of exceptions, but in the demurrer, on a demurrer to evidence. Beckeley v. Chesapeake 4,. B. Co. (W. Va.) 26 S. E. 349. Where a so specific error is pointed out in specifications of error, will receive no consideration. Gallagher v. Davis, (Pa.) 36, Atl. 319. Bill of exceptions which does not contain all the evidence, there will be no review of the findings of fact. Williamson v. Neeves, (Wis.) 69 N. W. 806. A finding if sustained by evidence will not be disturbed on ap- peal. Parr v. Cutsinger (Ind. App.) 45 N. E. 797. Weight of evidence is not open to review upon an appeal from, the General Term of the City Court. Sup. Ct. 96, Carney v. Beilly, 18 Misc. 11, 40 N. Y. Supp. 1123 Exception to instruction must point out supposed error. Emery v. Boston 5, A. B. B (N. H.) 36 Atl. 367. There will be no review of questions of fact whire bill of ex- ceptions fail to show that it contains all the evidence. Hall v. Needles (Indian Ter.) 38 S. W. 671. Objections Dot raised below will not be considered. Wilson v. Biddeck, (Iowa) 69 N. W. 1039. As to the question whether a verdict is excessive, the Appellate Term of the Supreme Court has no power to review decision of General Term of City Court of New York. Sup. Ct., 1896. Tyler v. Third Avenue B. B. Co., 18 Misc., 165, 41 N. Y. Supp. 523. Record must disclose the fact that bill of exceptions were filed after being signed by the judge. Kelso v. Keso, (Ind. App.) 45 N. E 1065. It is discretionary with court in granting leave to file supple- mentary bill. Sheffield t B. Coal, Iron 4, Bailway Co. v. Newman, (C. C. A.) 77 Fed. 787. An objection cannot be firot. xaised on appeal that there was no affidavit for attachment made. Sims v. Tyrer, (Va.) 26 S. E. 508. ASSIGNMENT FOR BENEFIT OF CREDITORS. On securities taken for property s Id by him, an assignee is not entitled to commissions under the statute. Mann v. Poole, (S. C.) 26 S. E. 229. When the evidence does not lead to the prestimption of fraud or fraudulent intent, and is equally consis-ent with innocence as well as wrong-doug. Ccmplaint should he dismissed. Huber v. Wimon, 18 Misc. 107, 41 N. Y. Supp. 834. Failure of creditor ty file claims within statutory time right to pro rate in fund determined. Joliet Nat. Bank v. O'Donnell, (Ill.) 45 N. E. 984. Eecution of chattt-l moxtgage to secure note due one day, held, an assignment for benefit of creditors. Trigg v. Ball, (Ky.) 38 S. W. 701. ATTACHMENT. Citation for dissolution of attachment should be read to attor- ney as the plaintiff. Cleland v. Clark, (Mich.) 69 N. W. 65.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most