Page:Harvard Law Review Volume 8.djvu/377

361 RECENT CASES. 361 Jurisdiction has invariably taken judicial notice of the fact. Commonwealth v. Desmond, 103 Mass. 445 ; Solyer v. Romaxet, 52 Tex. 562 ; Smitha v. Flournoys Adm'r, 47 Ala. 345 at 367; A/a. Gold Life Ins. Co. v. Cohl>, 57 Ala. 457. But where the place is not within their jurisdiction, the courts have declined to take judicial notice that the place referred to is one place of the name rather than another. Andrews v. Iloxie, 5 Tex. 171 ; Ri'i;^n v. Collier, 6 Mo. 568. These latter two cases follow the English case of Kearney v. King, 2 B. & Aid. 3or. See also Brune v. Thompson, 2 Q. B. 789. In Kearney v. King, supra, it was held that the court could not take judicial notice that a bill headed "Dublin, May i, i8r6," was drawn in Dublin, Ireland, because there may be other Dublins in the world. The same reason might be applied v/here the place in question is within the jurisdiction of the court, but as the subject of judicial notice is not at all technical, and as it lies within the discretion of the court to take it or not, and as it is not final if a party gives evidence that some other place is meant, there is ample justification for the above distinction. Of course the courts will more readily take judicial notice that a certain place is meant, if there are other circumstances indi- cating that fact, as there usually are when the place is within their own jurisdiction. Partnership — Attachment and Service. — A partnership having a usual place of business in Ohio, and formed for the purpose of carrying on business there, con- sisted entirely of non-resident partners. In an action against it : I/eld (a), that since the partnership as such had no separate existence, its property could be attached as that of the partners, under the Ohio law allowing attachment of the property of non- residents ; b) that a writ made out in the firm name, served on the firm as such at its usual place of business, was good. Byers v. Schlupe, 38 N. E. Rep. 117 (Ohio). It would seem that the general reasons for allowing more stringent process against non-residents do not apply to a firm doing business within the State, having all its assets there, and, as the second holding shows, fully amenable to service. The second holding is based upon § 5011 Rev. Stat, of Ohio, which provides that "a partnership may sue or be sued by the ordinary name which it has assumed; and in such case it shall not be necessary to allege or prove the names of the individual members thereof." The statute is so complete a recognition by the legislature of the separate existence of the firm that it jars unpleasantly with the refusal of the court to recognize anything of the sort. Partnership — Infancy of Partner — Judgment against Firm. — //eld,thzt in a suit against a firm, of which one of the partners was an infant, judgment should be rendered against the firm " other than the infant " and that bankruptcy proceedings should also be taken against the firm " other than the infant." Lovell and Christmas V. Beauchamp, L. R. [1894J 5 App. Cas. 607. This case treats the partnership as an entity to a certain extent, and gives judgment against it as such, thus making the firm assets pay the firm debts, though one of the partners is an infant. This is reaching the right result in the right way. In contrast with this case is Whittimore v. Elliott, 7 Hun, 518. There the right result was reached in the wrong way. Judgment was rendered against the adult members of the firm only, but execution was allowed to be taken out on all the firm property. To prevent great injustice, the common law had to give way somewhere, and the court, rather than discard the common-law theory of a partnership, allowed execution to be taken out which did not follow the judgment, but was against the property of those against whom no judgment had been rendered. The result in the principal case was made possible by the English statute allowing partnerships to sue and be sued in the firm name, and this now seems the only way to get rid of the common-law notion of a partnership and make it, what it is really treated as being by merchants and partners themselves, a legal entity. Persons — Breach of Promise — Fraud. — Asa defence to an action for breach of promise, evidence was given that plaintiff had told defendant that she had obtained a divorce from her former husband, but did not mention the fact that he also had obtained a divorce from her on the ground that she had a violent temper and had treated him with such cruelty that his health had been injured. She told defendant, also, that she was a descendant of the finest white families in Charleston, but omitted to state that her mother married a colored barber after the death of her first husband, and that this negro was her reputed father. Held, that these facts constituted a good defence. Van Houten v. Morse, 38 N. E. Rep. 705 (Mass.). The court expressly says that it is not the duty of a woman, before accepting an offer of marriage, to tell all the history of her family and herself, but decides the case on the ground that it was fraud for her to narrate part of such history and suppress the rest, so that plaintiff was deceived as to the kind of woman he was jjromising to marry.