the officer or officers thereof, authorized by the directors to sign the corpororate name to such instrument, and shall be sealed with the corporate seal; 2. By the master or employer; and 3. May be signed by the child, if over twelve years of age. 75. Penalty for failure of master or employer to perform provisions of indenture. If a master or employer to whom a minor has been indentured shall fail, during the term of service, to perform any provision of such indenture, on his part, such minor or any person in his behalf may bring an action against the master or employer to recover damages for such failure; and if satisfied that there is sufficient cause, the court shall direct such indenture to be canceled, and may render judgment against such master or employer for not to exceed one thousand nor less than one hundred dollars, to be collected and paid over for the use and benefit of such minor to the corporation or officers indenturing such minor, if so indentured, and otherwise to the parents or guardian of the child. 1860. 1862. 1866 1870. 1871.... 1871.. § 76. Assignment of indenture on death of master 1858 or employer. On the death of a master or employer to whom a person is indentured by the poor officers of a municipal corporation, the personal representatives of the master or employer may, with the written and acknowledged consent of such person, assign such indenture and the assignee shall become vested with all the rights and subject to all the liabilities of his assignor; or if such consent be refused, the assignment may be made with like effect by the county judge of the county, on proof that fourteen days' notice of the application therefor has been given to the person indentured, to the officers by whom indentured, and to his parent or guardian, if in the country. 1873 1873. All, except last sentence of $ 3, as am'd by L. 1888, ch. 437. 1873.... 1879. 1880 § 77. Contracts with apprentices in restraint of trade void.-No person shall accept from any apprentice any agreement or cause him to be bound by oath, that after his term of service expires, he will not exercise his trade, profession or employ- 1887. ment in any particular place; nor shall any person exact from any apprentice, after his term of service expires, any money or other thing, for exercising his trade, profession or employment in any place. Any security given in violation of this section shall be void; and any money paid, or valuable thing 1888 delivered, for the consideration, in whole or in part, of any such agreement or exaction, may be recovered back by the person paying the same with interest; and every person accepting such agreement, causing such obligation to be entered into, or exacting money or other thing, is also liable to the apprentice in the penalty of one hundred dollars, which may be recovered in a civil suit. All, except 1, 2, 3, 4, 5, adop LEGATEES RESIDENT ABROAD. WHI HERE a pecuniary or residuary legatee is abroad, an executor or administrator may pay the legacy or residue, after deducting the duty, into the bank, with the privity of the AccountantGeneral of the Court of Chancery, by whom it will be invested in the three per cents. for the legatee, who may obtain it upon a summary application to the Court of Chancery (36 Geo. 3, c. 52). Or a receipt for it may be signed abroad, and stamped within twenty-one days after it is received in this country (48 Geo. 3, c. 149), and can then be acted upon by arrangement between the parties." We need make no apology to the reader for quoting what the learned owner of Boyle Farm wrote in receipts and necessary papers to a solicitor in the nearest important town to the legatee's residence, with instructions to pay the legatee upon his being properly identified and signing the receipts. Or, if the legatee live in a foreign town, the executor is advised to pay the amount to a responsible firm of English merchants having business with that town, on their undertaking to remit the money, and to send the instructions for identification and payment to their agents. In either case, as a further precaution, the executor's solictor may write lirect to the legatee himself explaining the arrangements that have been made, and asking the legatee to call on the solicitor or agents to receive the legacy. A more cautious and more expensive method of pro 1863 in his Handy Book on Real Property Law.ceeding is for the executor to require the legatee to For, though that great lawyer modestly suggested For, though that great lawyer modestly suggested that that book was written "for the unlearned," it is only the ignorant or conceited who would pass by or cast away anything from the pen of such an authority as fit only for babes. Moreover, in this particular case the quotation introduces to notice a topic which was of importance when Lord St. Leonards was chancellor, and is of still more importance in 1896, when intercourse with places abroad has so materially developed and the emigration of English families to the Colonies has so much increased. As the reader will remember, the provisions of the statue 36 Geo. 3, c. 52, referred to by Lord St. Leonards, have been recently repealed, and replaced by new procedure by the Trustee Act 1893 (56 & 57 Vict. c. 53), ss. 51, 42, 50. Now the personal representatives of a deceased person, or the majority of them, may pay the legacy or residue into the High Court, and if the legacy or residue do not exceed in amount or value the sum of £500, it may, under an useful provision in the County Courts Act 1888 (51 & 52 Vict. c. 43), s. 70, in the case of money be paid into the Post-office Savings Bank through the County Court, and in the case of securities, be transferred into the names of the treasurer and registrar of that court, and the legatee may, by petition to that court, obtain payment. appoint an attorney in England to receive the amount and to give a discharge. And it may be here added that in the case of a trust, a trustee resident in England can effectually appoint a competent attorney to act in an English colony or foreign country even in matters of discretion connected with the trust, this being an exception grounded on necessity to the rule that a trustee cannot delegate a discretion. (Stuart v. Norton, 3 L. T. Rep. 602; 14 Moo. P. C. C. 17.) Still the fact remains that the only way in which an executor can obtain a proper discharge for a legacy bequeathed to a person resident beyond the seas, and therefore the only way in which he can act with absolute safety, is by paying the legacy into court. The executor's difficulties arise, first, in identifying a legatee whom he very likely does not know, and from the nature of the case cannot be personally introduced; to and also, when the gift is to a class, in ascertaining who are the several persons entitled to share, and, if necessary, their ages. It is obvious that, when a legatee is abroad, there is a much greater opportunity or risk of imposing upon or unwittingly misleading an executor, in such matters, than there is when he is living in England and is personally well known to the testator's family, and when he and his professional advisers are quite conversant with the devolution of English The arrangements between the parties alluded to personal property. Secondly, a further difficulty by Lord St. Leonards cannot very prudently be arises in selecting a trustworthy and discreet soliciadopted, unless the legatee is of good social positor or agent in a place at a distance, and unknown to the executor, and then in so instructing him that the legacy may be in the end paid to the proper person, and not by mistake to a wrong one. This difficulty will be much increased if the legatee have a common surname, or be in the lower ranks of life, or live far from the agent's abode so that he is unknown to the latter. In one recent will, a testator directed that a sum be bequeathed to a brother's children resident abroad, should be sent out to a gentleman he named, living in the same town, and tion, and so much in postal correspondence with the executor or members of the testator's family that the signature to the receipt and the writing of the legatee's instructions respecting the remittance of the amount may be satisfactorily identified. We understand that, in cases where the executor thinks it prudent not to come to such an arrangement, he is sometimes advised, in paying a legacy in the Colonies, to obtain from his English banker a draft on a colonial bank, and then to send the draft, that that gentleman's receipt should be an absolute discharge to the executors, and relieve them from all responsibilty as to ascertaining what children there might be, or their ages, or that the money was actually paid to them. It will be observed, however, that this form does not provide for the contingency of the gentleman named predeceasing the testator; nor for the event of the legatee being found to be missing at the testator's death a not unusual occurrence among certain classes of emigrants, as anyone acquainted at all with colonial life will testify; nor for the devolution of the legacy when the executor has made in- | quiry, but has no strict evidence of the legatee's whereabouts or death; nor for the incidence of the costs of transmitting and paying the legacy, which costs will, in any case, be increased, and it may be significantly increased, by the legatee's residence abroad, and the employment of agents. As we have taken occasion to observe on a previous occasion, in a well-drawn will there will be found all the provisions that are necessary to make the whole will work smoothly and harmoniously. Nothing will be found to have been inserted or omitted at random, or because it was, or was not, in a certain precedent. When it is considered how thankless the office of executor is, and how many persons undertake it simply out of respect for the wishes of a deceased friend, it is remarkable that so comparatively many testamentary instruments appear as if they had not been well thought out, and are found not to supply that practical machinery for working out the testator's wishes which so much lessens an executor's duties and responsibilities. It may be said this is because all who prepare a will are not considerable conveyancers. Or is the desire to gratify the insensate craving among the public for "a nice, short, cheap will" responsible for this inconsiderate want of kindness to an unrenumerated worker? At all events, the topic is quite as well worthy a testator's consideration as that of the renumeration of, or a legacy to, his executor. Law Times. Notes of American Decisions. ADMIRALTY LIMITATION OF LIABILITY A court of admiralty, in which is pending a proceeding for the limitation of the liability of a ship owner, under Revised Statutes, § 4282 et seq., may enjoin the prosecution of suits in State courts against such shipowner; and the prohibition in Revised Statutes, § 720, does not apply to such injunctions. (In re Whitelaw [U. S. D. C., Cal.], 71 Fed. Rep. 733.) will not be enforced by a Federal court in favor of a master who is also a part owner, or where the services were not rendered upon the credit of the vessel. (The Lena Mowbray [U. S. D. C., Ala.], 71 Fed. Rep. 720.) CONTRACT-CONSTRUCTION— MUTUALITY.—Plaintiff had been manufacturing tin cans for defendant for some time at an agreed price, when defendant wrote to plaintiff that he would take his entire output of cans if he would agree not to sell to a certain other person, and directing plaintiff to enter his order for a certain number of cans "as heretofore." Plaintiff accepted the proposition, and shipped cans which were paid for at the price theretofore agreed upon: Held, That the contract was not invalid for failure to definitely fix the price to be paid for the cans. (Walsh v. Myers [Wis.], 66 N. W. Rep. 250.) FEDERAL COURTS DEPOSITIONS TAKEN IN STATE COURT. Depositions taken to be used in an action in a State court, which has been discontinued, canFederal court between the same parties for the same not be used in an action afterwards brought in a cause of action, although the State practice allows depositions taken in a pending suit to be used in a renewed suit between the same parties for the same cause. (Seeley v. Kansas City Star Co. [U. S. C. C. Mo.], 71 Fed. Rep. 554.) FEDERAL COURTS-JURISDICTION-DIVERSE CITIZENSHIP.-In order to confer jurisdiction of a suit on a chose in action on the Federal Court, on the ground of diverse citizenship, the bill must show the plaintiff's assignor resided in another State. (Benjamin v. City of New Orleans, [U. S. C. C., La.], 71 Fed. Rep. 758.) FEDERAL COURTS-MANDAMUS- POWER OF CIRCUIT COURTS OF APPEALS.-The Circuit Courts of Appeal have no power to issue a mandamus direcing a Circuit Court to dismiss a case in limine, on the ground that no jurisdiction has been acquired over the defendant by the method of service pursued, for the Circuit Court of Appeals can only issue a mandamus in aid of their own jurisdiction (Act March 3, 1891, § 12, Rev. St. § 716); and they have no jurisdiction in a case in which the only question involved is the jurisdiction of the court below, as such cases are reviewable on appeal only in the Supreme Court (Act March 3, 1891, §§ 5, 6). (United States v. Severens, [U. S. C. C. of App.], 71 Fed. Rep. 768.) GUARANTY CONSTRUCTION OF CONTRACT.- A guaranty that a firm shall pay a corporation for all coal it may thereafter sell to such firm applies to sales of coal thereafter made to such firm through ADMIRALTY MARITIME LIENS. A State statute the receiver of the corporation, since the appointgiving a lien for master's wages (Code Ala., § 3054), I ment of a receiver for property by a court of chan cery does not transfer title to the property. (Phila-pany by the receivers, on their discharge, and the delphia & R. Coal and Iron Co. v. Daube [U. S. C. acceptance thereof by it, do not ipso facto render the C., Ill.], 71 Fed. Rep. 583.) HOMESTEAD SAS.- One S induced his wife, who was of unsound mind, to execute a mortgage on their homestead, situated in Kansas, the mortgagee being ignorant of the wife's incapacity. Upon the institution of a suit for forclosure, to which S, his wife, and their children were made parties, S set up such incapacity as a defense. Pending the suit S's wife died, and the bill was dismissed as against the children, at plaintiff's request: Held, that as, under the laws of Kansas, the right of the wife in the homstead was only a right to be protected in its enjoyment during her life, the title remaining in the husband, S, could not, after his wife's death, resist the enforcement of the mortgage. (Miners' Sav. Bank v. Sandy [U. S. C. C., Kan.], 71 Fed. Rep. 840.) RIGHTS OF WIFE-LAW OF KAN - JUDGMENT INSANE SURETY. A judgment rendered against an insane surety on an attachment bond, who was sane at the time the bond was executed, is valid. (Pollock v. Horn [Wash.], 43 Pac. Rep. 885.) LIFE INSURANCE SEMI-TONTINE POLICY — BILL FOR ACCOUNTING.-The relation between a holder of a matured semi-tontine policy and the insurance company is that of debtor and creditor merely, and involves no trust relation; and a policy holder who is dissatisfied with the amount of the surplus which is apportioned to him by the company, pursuant to the terms of the policy, cannot maintain a bill for accounting and discovery when there are no sufficient allegations of frand. (Everson v. Equitable Life Assur. Soc. of the United States [U. S. C. C. of App.], 71 Fed. Rep. 570.) LIFE INSURANCE -SUICIDE INSANITY.-Suicide of the insured is not a breach of a warranty in his application that he will not "die by his own hands," if, at the time of taking his life, his reasoning faculties are so far impaired that he is not able to understand the moral character, general nature, consequences and effect of his act, or when he is impelled thereto by an insane impulse which he has not the power to resist. (Mutual Life Ins. Co. of New York v. Leubrie [U. S. C. C. of App.], 71 Fed. Rep. 843.) PLEDGE-CONVERSION.-Where the pledgee sells the absolute property in the pledge to a bona fide purchaser, the purchaser is entitled to retain the pledge until the pledgor discharges the debt for which it was pledged. (Williams v. Ashe [Cal.], 43 Pac. Rep. 595.) company liable on claims accruing during the receivership through acts of the receivers. (Missouri, K. & T. Ry. Co. v. McFadden [Tex.], 33 S. W. Rep. 853.) SURROGATION. - A contract for the construction of a United States court house provided that the government might withhold any part of the sums to be paid the contractor, in case of the latter's failure to promptly pay laborers and material-men. A bank, from time to time, lent money to the contractor, with the expectation that it would be used in carrying out his contract, but without any obligation to that effect, and some of it was used by him in paying laborers and material-men. Held, that as the laborers and material-men had no enforceable rights against the government, and the payment by the bank of the money used to pay their claims was purely voluntary, there was no room for the application of the principle of subrogation in the bank's favor. (Lawrence v. United States, U. S. C. C. [S. Car.], 71 Fed. Rep. 228.) RAILROAD RECEIVERS LIABILITY FOR NEGLIGENCE. Receivers having the full possession, control and operation of a railroad under the directions of a court are alone liable for the negligence or wrongdoing of their agents and employes in the operation of the road, and the railroad company itself is not liable to suit upon a cause of action so arising. Chamberlain v. New York, L. E. & W. R. Co. [U. S. C. C., Ohio], 71 Fed. Rep. 636.) TRESPASS RIGHTS OF WRONGDOER TO MAINTAIN.— A girl of 18 was accustomed to help her father in the business of his farm. The father said that he left her in charge of his farm on the day in question, as he left for a few hours: Held, that the daughter was not thereby empowered to resent by force an entry upon a part of the farm that had legally been condemned for public use. (East Jersey Water Co. v. Slingerland [N. J.], 33 Atl. Rep. 843). VENDOR AND PURCHASER BREACH-TENDER OF PERFORMANCE.- Plaintiff paid $500 on the execution of a contract to convey land. The contract represented that there was on the land only a mortgage of $1,000. A mortgage for $1,500 additional of which the vendor had no knowledge, was being foreclosed when the $500 was paid; and after the date fixed for performance of such contract there was a decree of foreclosure, under which the land was afterwards sold: Held, that a tender of performance by plaintiff was necessary to entitle him to maintain an action for breach of such contract. (Ziehen v. Smith [N. Y.], 42 N. E. Rep. 1080.) The Albany Law Journal. ALBANY, MAY 9, 1896. Current Topics. [All communications intended for the Editor should be ad March 25, and behind locked doors it was continued. But while the trial board was of necessity composed of members of the clergy, the case for both accusers and accused was conducted by lawyers, as provided by the church law, which, however, stipulates that only lawyers dressed simply to the Editor of THE ALBANY LAW JOURNAL. who are Episcopalians can enter into such All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] HERE is intense interest in Boston, and like THERE wise in the Protestant Episcopal Church, in regard to the decision of Bishop Lawrence, of Massachusetts, in the case of the Rev. S. R. clesiastical law for marrying before his divorced wife died, as he had not obtained a divorce on account of adultery. cases. Charles Greenough represented the standing committee, and Alexander Brown appeared for the respondent. ex The The evidence introduced was entirely in documentary form, and no witnesses were amined during the sessions of the court. finding of the Middlesex County Court in the divorce case, the relating evidence of Mr. Fuller's marriage to Miss Derby and to the question which was raised as to whether that By this marriage it was charged that Mr. Ful- marriage had been sanctioned in proper form, ler violated one of the fundamental laws of his church, which are hardly less strict concerning marriage and divorce than the canons of the Catholic church. The specific charge was that of violating the law prohibiting the marriage of either party to a divorce while the other party is yet living, except in the case of the innocent party when the cause of divorce is adultery. The canons of the church further provide that, when such a question shall arise, a bishop of the diocese can make inquiry in such manner as he may deem expedient, and, therefore, in accordance with the report and recommendation of the standing committee of the diocese of Massachusetts, which considered Mr. Fuller's case in the first instance, Bishop Lawrence ordered a hearing of the case before a court of inquiry, the standing committee thereby becoming prosecutors or accusers. and all other evidence, was submitted in writing. When all this testimony had been examined and deliberated upon, the attorneys summed up and the court found, it is said, unfavorable to the respondent. Whether or not Mr. Fuller will be deposed is another story, for the end is not yet since it now devolves upon Bishop Lawrence to render a decision upon the verdict. Bishop Lawrence may sustain the verdict, may modify it, or may set it aside altogether and declare it void, or he may order a new trial. Since the question involved in this case is one affecting in a vital degree the marital relations of members of the Episcopal denomination, and, what is of greater import, since it brings into question the wisdom of the canon laws of the church, Bishop Lawrence's action is awaited with almost breathless interest, not only by the clergy, which is most deeply concerned, but by the laity of the denomination as well. It means more than the rendering of an opinion on the justice or injustice of the verdict. It brings up the question of the legiti According to the rules of the church, Bishop Lawrence appointed nine men to constitute the council, and the list was presented to Mr. Fuller, who had the authority to strike off four names. This he did, leaving Rev. S. U. Shear-macy of the famous "fourth section" of the man, of Jamaica Plain; Rev. C. T. Whittemore, of Dorchester; Rev. Frederic Palmer, of Andover; Rev. E. W. Smith, of Fall River, and Rev. John J. H. Van Buren, of Lynn, to act as the trial board. The hearing of the case was begun at the diocesan house on Jay street in the morning of VOL. 53 - No. 19. canon law by which the bishop is empowered. to go behind the proceedings of the courts of the commonwealth and so may be placed in a position where he may be called upon to rule in direct opposition to the rulings of the State courts, "wherein there are possibilities of a direct conflict between church and State." |