Court Rulings

Gross income: Termination pay: Discharge of indebtedness: Club membership: Automobile: Taxable year of inclusion: Right to automobile. - The court found that a former corporate officer was indebted to the corporation and that he realized severance payments on the forgiveness of the indebtedness. also, the taxpayer realized income to the extent of a club membership when it was agreed that he could retain it as his own property after the termination of his employment. In addition, the taxpayer realized income to the 1463

Held, that the petitioner, in rendering stenographic and secretarial services to various law firms and corporations for short periods during the years in question, was acting as an employee, and not as an independent contractor, and that the remuneration which she received for such services did not constitute self-employment income subject to the tax imposed by section 1401 of the Internal Revenue Code of 1954.

<p>Action by Arthur D. Whiteside against Morris Levy, impleaded with others. W. F. Severance, of New York City, for appellant. C. E. Kelley, of New York City, for respondent.</p>

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>Department 1. Statement hy Mr. Chief Justice McBride.</p> <p>This is an action in ejectment by Ada Erb Bunch against George B. Thomblison, Artie Thomblison and Mary Ellen Leonard, to recover possession of a certain 40-acre tract of land, situated in Josephine County. The plaintiff obtained a verdict and judgment, and defendants appeal.</p> <p>The facts appearing on the record are as follows: On April 2, 1892, J. D. Glidden and Ellenor, his wife, being the owners of the west half of the southeast quarter and the southwest quarter of the northeast quarter of section 28, township 39 south, range 7 west, Willamette meridian, mortgaged the same to William Dailey to secure the payment of the sum of $383.85, with interest at 10 per cent, per annum. On September 4, 1895, Dailey brought suit to foreclose the mortgage. The complaint correctly described the land mortgaged, but in the decree which was subsequently rendered the land was erroneously described as the west half of the southeast quarter and the southeast quarter of the northeast quarter of said section 28, including 40 acres not owned by the mortgagors and omitting the southwest quarter of the northeast quarter which was described in the mortgage; the error being probably caused by the clerk writing the word “southeast” instead of the word “southwest.” Execution and order of sale was issued containing the same erroneous description, and the land was sold and bid in by Dailey for the full amount of his decree and costs. The sheriff issued a deed to Dailey containing the said erroneous description and reciting a confirmation of the sale, but no order of confirmation appears on the record. Dailey died, and the property passed by inheritance to his son Edward Dailey, and subsequently passed by a series of ■ conveyances to plaintiff, all of which contained the same erroneous description found in the original decree: On September 28, 1896, the Grliddens conveyed the south

<p>For the purpose of the decision in this case it is necessary-only to state: That this is an action for accounting brought by the plaintiff, Pearce, against the defendants Sutherland and the Alaska Perseverance Mining Company, a corporation, upon the theory that the defendant corporation is a holding company for the defendant Sutherland. That a partnership agreement for the purchase and sale of certain mining property was entered into between the plaintiff and Sutherland, and the defendant corporation was subsequently organized to hold the legal title of the said property for the partnership. That after the plaintiff Pearce was discharged by the corporation as superintendent of their property in Alaska, and after he had brought an action against the defendants herein, a compromise agreement in writing was entered into upon mutual and valuable considerations between the parties herein at Vancouver, B. C., on July 21, 1906, which covered every transaction between them in the greatest detail. That after plaintiff had received the consideration of $5,000 under the compromise agreement, and upon failure of the defendant to make the payment due December 15, 1906, the plaintiff attempted to rescind the agreement and filed the original bill in this action in this court in April, 1907. After subsequent amendments his third amended bill was before the United States Circuit Court of Appeals, Ninth Circuit, on an appeal from this court sustaining the demurrers to the bill. 164 Fed. 609, 90 C. C. A. 519. The decision of the Circuit Court of Appeals allowed the plaintiff to amend, and the complaint in this action and the present bill was then filed.</p> <p>The defendants filed their separate answers, to which the plaintiffs entered their demurrers and replies, and the case came on for hearing with the understanding that the court reserve decision on the demurrers. The case came on for hearing before this court, without a jury, on the 16th day of May, 1910, and thereafter contin

<p>Action by Ada E. Sweet against the village of Sidney.</p>

<p>Appeal, No. 24, Jan. T., 1903, by defendant, from judgment of C. P. Chester Co., April T., 1900, No. 73, on verdict 'for plaintiff in case of George Quigley v. The Montgomery & Chester Electric Railway Company..</p> <p>Trespass for injury to land. Before Hemphill, P. J.</p> <p>At the trial it appeared that George Quigley, the plaintiff, entered into an agreement in writing with the defendant which was in part as follows :</p> <p>“ That the party of the first part in and for the consideration of the sum of one dollar ($1.00) in hand well and truly paid by the party of the second part at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, does hereby give and grant to the said Railway Company, its successors and assigns, the right and privilege to survey, locate and lay out a line for its railway, in, over and upon all that certain piece of land situate in the Township of East Pikeland, County aforesaid, beginning at the line between the property of said George Quigley and John Latshaw, thence in a Southerly direction keeping to the East of the dwelling of said Quigley and along the wall of the barnyard at a distance to be agreed upon, thence bearing to the West and continuing to the Schujdkill Road parallel to the road running to Zion’s Church, taking a strip of land twenty feet in width. The fences to be moved by the party of the first part; and the party of the first part doth hereby covenant, promise and agree to and with the party of the second part, its successors and assigns by proper deed of release and conveyance, to transfer to the said party of the second part the strip of ground not exceeding twenty feet in width, upon which said location may be made, if the same be adopted as a permanent location by the party of the second part, and the party of the second part hereby covenants and agrees that, if it adopts the temporary location for the permanent location of its railway, upon the delivery to it of a pro

<p>Action by Delaware La Marsh against Ada E. Bingham and others.</p>

<p>Action - by Delaware La Marsh against Ada E. Bingham and others.</p>

<p>Error to Hamilton common pleas court.</p> <p>Part performance took the agreement out of the statute of frauds. Wilbur v. Paine, 1 Ohio 251, 254; Moore v. Beasley, 3 Ohio 294; Wag-goner v. Speck, 3, Ohio 293; Grant v. Ramsey, 7 Ohio St. 157; Blanding v. Sargent, 33 N. IT. 239 [66 Am. Dec. 720]; Martin v. Batchelder, 69 N. H. 360 [41 Atl. Rep. 83]; Frey, Spec. Perf. 286, Secs. 56z, 563; Pomeroy, Spec. Perf. Sec. 104; Armstrong v. Kattenhorn, 11 Ohio 265, 272; 8 Am. & Eng. Ene. Law (1 ed.) 637.</p> <p>Severance. Fox v. Althorp, 40 Ohio St. 322.</p>

<p>Levy and claim. Before Judge Littlejohn. Schley superior court. April term, 1897.</p> <p>A claim to land levied on under an execution from a judgment rendered October 25, 1876, in Schley superior court, in favor of E. S. Baldwin against T. B. Myers, was interposed by Ada Hudson and Nannie Cato. Upon the execution was an entry of nulla bona, dated June 4, 1883, and signed “L. A. Giles, coroner, Schley county.” This was followed by an entry dated October 25, 1889. The date of the levy was July 30, 1894. The claimants moved to dismiss the levy, upon the ground that the execution appeared upon its face to be dormant, in that the entry made by Giles, coroner, was illegal and unauthorized, the fi. fa. not being directed to the coroner, and it not appearing that Giles, as coroner, was authorized to make the entry. The plaintiff in execution offered to submit proof that an affidavit as required by the Political Code, § 496, was made before the clerk of the court placed the process in the hands of the coroner for execution. lie testified: On June 4, 1883, he made, before J. N. Cheney, clerk, such an affidavit as he now proposes to establish. E. M. Butt, his attorney, wrote out the affidavit in Cheney’s office and gave it to witness, and also wrote out nulla bona of that date on the fi. fa., and witness gave the fi. fa. to Giles, the coroner. The affidavit was signed by J. N. Cheney, clerk, and Cheney filed it in the clerk’s office before the entry of nulla bona was made by Giles. The entry of nulla bona was signed then and there by the coroner. He could not now say that the affidavit filed was like the one now proposed to be established. The affidavit was attached to the fi. fa. at the time the coroner signed the nulla bona. Witness handed the papers back to Cheney, clerk, and has not seen the affidavit since that time. He is certain he has never made but one affidavit of any kind relative to this fi. fa. — Subsequently, after consultation with his attorneys over the writ

<p>Appeal from city court, general term.</p> <p>Action by William T. P. Brown against the Baldwin & Gleason Company, Limited, to recover damages for an alleged wrongful discharge from the defendant's service. The plaintiff was employed by the defendant to serve it “exclusively and actively as traveling salesman” under a written contract. He entered upon his duties, but soon thereafter declined to pursue them, upon ■ the ground that they did not include the getting out a line of samples for the trade. Defendant offered evidence tending to show that the preparation of samples was included by the usages of trade in a written contract to act as “traveling salesman;” also to show that the defendant was incapacitated, by habits of intemperance, to fulfill his contract,—all of which the court rejected. The defendant thereupon requested to go to the jury upon the amount of damage sustained by the plaintiff. There was a verdict and judgment for the plaintiff, and the defendant appeals.</p>

<p>Error to tbe Quarter Sessions of Northumberland County to review a judgment confirming an order of removal of pauper.</p> <p>Reported below, 1 Pa. Co. Ct. 377.</p> <p>This was an appeal of the overseers of the poor of the borough of Northumberland from the order of removal of Edward James Barry, a pauper.</p> <p>The facts as found by the court below were stated in the opinion of Rockeeeller, P. J., which was as follows:</p> <p>Edward James Barry, the pauper, was born in the borough of Northumberland on the 16th day of September, 1884. ITis parents were both foreigners, the father, Edward Barry, being a native of Wales, and his mother a native of England. They lived together as husband and wife in Northumberland at the time of the birth of their son. The mother died on the 24th day of January, 1885, and was buried by the overseers of the poor of Northumberland on the 26th. On the 21th the father left, and has not since been heard of. The mother of the pauper’s mother1 also resided in Northumberland, and upon her death took charge of the pauper, who was then about four months old. This mother of the pauper’s mother Avas married to one Peter Warters.. They were Arery poor and Avere obliged to ask for assistance. Finding work at Northumberland to be scarce they moved to Milton and took the pauper along with them. An order of relief Avas taken out and the pauper placed on Milton for support. The overseers of the poor of Milton took out an order of removal, and removed the pauper to the borough of Northumberland, from Avhich order the overseers of the poor of that borough appealed. Neither the pauper, his mother, father, nor grandmother ever had a settlement in Milton.</p> <p>[That borough contends that the pauper had at least a quasi settlement in Northumberland, if, in fact, he was not legally settled there by reason of his birth at that place; and that the burden of finding his legal settlement is on Northumberland and not on Milton.]</p> <p>The rule of course is th

<p>Appeal from the County Court of Wise. Tried below before the Hon. W. W. Brady.</p> <p>The opinion of this court sets out the charging allegations of the information, italicizing the portion to which the defendant’s exception was sustained. A fine of $20 was the punishment imposed on the appellant by the verdict of the jury.</p> <p>Z. T. Bobo, for the State, testified that on October 20, 1884, he was clerking for W. J. Rogers at Rhorae in Wise county, Texas, and on that day bought for him from D. A. Bridges a bale of cotton weighing five hundred and forty pounds, at eight and a quarter cents per pound. Witness sampled it on the edge, and found it to sample about “ middling.” It was marked D. A. B. in blue ink. Witness put Rogers’s mark on it, and numbered it 110, that being the number purchased upon the order he was then filling. It was thrown off of the wagon to the ground, and lay where it was thrown until about December 13, 1884. Three or four weeks after the bale was bought, Mr. Smith discovered bad cotton in it, and rejected it from the lot. Witness examined it, and dug into the end of it with his cotton hook, and in the centre of it he found rotten cotton, moats and trash. On December 13, 1884, the bale was opened in the presence of the witness and several others. Neither the appellant nor his co-defendants were present when the bale was opened, and witness could not say that any of them ever saw the bale after it was opened. The top and bottom of the bale was cotton like the sample taken from it by the witness when he bought it. In the middle of the bale there were moats, trash, and rotten, soiled and jrellow cotton, mixed together, °and constituting, according to the witness’s estimate, a half or a third of the bale, valueless as cotton.</p> <p>S. Bobo, A. Wilmuth, W. Morris and R. T. Smith, witnesses for the State, testified that they were present when the bale was opened, and examined it. The top, bottom and sides of the bale were lined with good cotton.

<p>Appeal from the District Court of McLennan. Tried below before the Hon. B. W. Rimes, County Judge.</p> <p>The indictment in this case was joint against this appellant, Henry Harris, Ike Austin and George Simons, and charged that they did, on the first of June, 1883, in the county of McLennan, murder one Gabe Austin, by tying a rope around the neck of him, the said Gabe Austin, and dragging him until, by dislocation of the neck, the said Gabe Austin did die. A severance was had upon the motion of Henry Harris, and this appellant was alone placed upon trial. He was found guilty of murder in the second degree, and his punishment was affixed at a term of twelve years in the penitentiary. The opinion of the court summarizes the evidence upon which the conviction was had.</p> <p>The motion for new trial presented the questions discussed in the opinion.</p>

<p>Appeal from the District Court of Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The indictment impleaded Jeff Ake, William Ake, William Bybee, and the appellant, Silas Berry, and charged them jointly with the theft of a certain gelding belonging to W. C. McDougle, on May 30, 1876.</p> <p>McDougle proved the fact and time of the theft as alleged in the indictment, and that the animal was returned to him by L. F. Hurt, about a month after it was stolen. He did not know who took it, and had never seen the appellant in possession of it.</p> <p>S. E. Holland testified that in June, 1876, he was one of a sheriff’s posse in pursuit of horse-thieves, and in the forks of the Llano River, near Bob Hinds’, they learned that the Akes were on top of the mountain. The next morning, seeing two men on the mountain, they surrounded it. In their search of the mountain, witness got a glimpse of a gun, and, following that hint, discovered two men hid under the brush and among the rocks. Witness threw his gun down on them, and they cried, “ Don’t shoot,” and then came out. In each other’s presence they told witness their names were ■Silas Berry and William Bybee, and that they had been riding about forty yards behind the wagon of Bill and Jeff Ake, about a mile from where they then were, when the wagon had been fired into, on the Fredricksburg road; that they left the road, unsaddled their horses, and hid the saddles, and hobbled the horses in a mesquite flat, and then went to the mountains, and were watching the men below, with the intention of coming down in case they recognized any of them. Witness asked them where their horses were, and they replied, “Our horses are down the mountain, in the mesquite flat;” and on witness pressing them further about their horses, they said they were the Akes horses. Being taken down to the camp of the posse, at the foot of the mountain, they there repeated the same statement, and some of the posse went and brought the horses in, wh

<p>Appeal from the District Court of Red River. Tried below before the Hon. B. T. Estes.</p> <p>The indictment charged George Frazier and the appellant with the murder of Clint Hunter, on June 24, 1874. The deceased was found by the roadside mortally wounded by gun shot. His dying declarations designated Frazier and the appellant as the perpetrators. The parties were all freedmen. Frazier obtained a severance. The jury found the appellant guilty of murder in the second degree, and allowed him seven years of the penitentiary.</p>

<p>Error to the District Court of Philadelphia.</p> <p>Michael Kelly, on the 30th of May 1855, gave his judgment-bond for $2000 to the Perseverance Building Association, on which judgment was entered September 11th 1857. On application of the defendant, the judgment was opened for defence, a narr. in debt on the bond was filed, to which defendant pleaded nil dehet, non est factum, satisfaction, payment, set-off, with leave to add, alter, and amend, and to give the special matter in evidence : and on the issues thus made up the parties went to trial.</p> <p>There were ten shares of the stock of this association originally owned by J. Murphy, who had paid on account of them $289.20, when he transferred them to Horace Kelly. Two payments of $12 were made by Horace Kelly, in the months of April and May 1855. On the 23d of March 1855, Michael Kelly obtained a loan from the association of $2000, and on the 30th of May 1855, he obtained another loan of $2000, giving his bond and mortgage for each loan, and transferring the stock held in the name of Horace Kelly as collateral security.</p> <p>At the time the last loan was obtained, there was $400 due and unpaid on this stock, which was deducted from the net amount of $1500 advanced to him by the association. After this loan, there were monthly payments down to March 1857, amounting in all to $400.</p> <p>In October 1857, he having failed to pay his dues, the association brought suit on the first loan, to September Term 1857, No. 1347. When this action came on to be tried, he confessed judgment in open court for $1760, to which there is no objection. At the same time, but not in open court, he signed on the back of the bond of May 30th 1855, the following agreement:—</p> <p>“ It is hereby agreed that the judgment in this case shall be reduced to the sum of seventeen hundred and twenty dollars ($1720), made up of the following items, viz.: net amount of loan, $1500; eleven months’instalments on stock, $110; eleven months’ due

<p>On Facts agreed.</p> <p>Assumpsit, to recover for materials furnished in June, 1849, to the defendant’s intestate, for the building of a chain factory on land, leased to the intestate by a third person.</p> <p>The factory building was attached to secure the lien, allowed by law, and within the ninety days prescribed by law.</p> <p>The estate was decreed insolvent, and the administrator sold the factory for the payment of debts by order of the Probate Court in Dec. 1849.</p> <p>A lien was given hy R. S. chap. 125. It was, however, decided in 28 Maine, 511, Severance v. Hammett, that the lien preference is vacated by the death and represented insolvency of the debtor. But by the Act of 1850, chap. 159, the lien was made to subsist, notwithstanding such death and insolvency. This statute being in addition to the former Act, had a retrospective effect, and gave validity to the lien claimed by the plaintiff. It merely remedied an admitted defect, and reached back so as to perfect the law from the passage of the first Act.</p>

<p>Assumpsit on the following promissory note :</p> <p>“Adams Bank, June 1, 1833. Ninety days from date, we, Eliphaz Jones and Asa Severance, as principals, and Cyrus Alden, as surety, for value received, jointly and severally promise the President, Directors and Company of the Adams Bank, to pay them or their order, fourteen hundred dollars at their banking house. Eliphaz Jones, Asa Severance, Cyrus Alden.</p> <p>Please pay proceeds to Stephens & Corlies or order. Eliphaz Jones.”</p> <p>The defendant Jones did not appear. The defendants, Severance and Alden, appeared separately, and moved that the action should be dismissed, on the ground, that the counsel appearing in behalf of the plaintiffs were not authorized to prosecute the action.</p> <p>The parties stated a case.</p> <p>The counsel for the plaintiffs appeared in behalf of the firm of Stevens & Corlies, of New York, who, as they contended, were the equitable assignees of the note.</p> <p>In the autumn of 1832, Severance entered into partnership with Jones, but after three or four months the partnership was dissolved. The note in suit was made for the purpose of obtaining money from the bank by a discount thereof, in order to pay the debts of Jones & Severance.</p> <p>By the deposition of Henry H. Reynolds it appeared, that Jones, in April 1832, purchased goods of Stevens & Corlies, to the amount of $718-78, on a credit of twelve months, which were delivered to his order ; that in May 1833, Jones proposed to Stevens & Corlies to give in payment of the debt due from him to them, a joint note of Jones, Severance and Alden for $1400, payable to the order of the President and Directors of the Adams Bank ; that Jones stated, that he had expected on his way to New York, to have had the note discounted at the bank ; that the cashier declined discounting it, but said it should be discounted in a week or ten days ; that Stevens & Corlies agreed to take the note on the following conditions, to wit: that they should sen