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to show that the defendant Daly has acted otherwise than in good faith, in purchasing the manuscript from Wall, but from a consideration of all the proofs submitted on the hearing, it seems that the weight of the evidence is against Mr. Bayliss, or his representative Mr. Wall, acting for the firm of "Simmons & Wall," having any right or title in the manuscript they undertook to convey to Mr. Daly. From what has thus far been disclosed, I must come to the conclusion that no right in respect to the play passed to the defendant Daly.

The defendants further object that the play of "Rose Michel" is an immoral production, and consequently, that if the plaintiffs have any rights in regard to it, that they are not entitled to be protected in them by the interference of a Court of Equity. If this play, or any literary production, is of that character, it is no part of the office of the Court to protect it by injunction or otherwise. The rights of the author are secondary to the rights of the public, to be protected from what is subversive of good morals. But the examination of the original manuscripts fails to show that either version is amenable to this charge.

It is objected by the defendants, that the plaintiffs' title is limited to the French manuscript only, and does not embrace the manuscript of the English version. But both manuscripts are distinctly specified in the bill of sale from Michaelis to Shook, and this transfer seems to have been ratified by Mr. Blum, the author. In the affidavits of Michaelis & Blum, the play is simply designated as "Rose Michel," but is apparent that it was not the intention of the vendor or the purchaser that merely the French version was transferred for representation in the United States, and this interpretation cannot be justly given to the transfer.

Daly has answered, and the other defendants have read an answer as an affidavit, stating that they reserved the right to demur. The purport of the complaint is that the plaintiffs own the manuscripts of the play, and that the defendants are interfering with and prejudicing their rights in various ways. It does not appear that the complaint is demurrable, and in view of the steps taken by the defendants and the provisions of the Code in reference to demurrers, and to applications to strike out and to make pleadings more definite and certain, this objection can hardly be sustained.

The defendant Daly states that he has substantially constructed a new and original play in the place of "Rose Michel.” If that has been done, it is no answer to this application for an injunction. The author and his assignees, be they citizens or aliens, as far as the manuscripts and their rights therein are concerned, are protected by the law, and these rights cannot be impaired or infringed upon, either directly or indirectly. (Palmer v. De Witt, 47 N. Y., 532.)

The injunction is continued during the pendency of the action, with $10 costs of motion to the plaintiffs. Shook et al vs. Daly et al. Sept. 13, 1875.

Eng. L. R.-Queen's Bench.

CRIMINAL LAW.

Two magistrates impowered by statute to try an offense are a court of competent jurisdiction, so that the conviction by them is a bar to a second conviction on the same facts.

Complaint for an unlawful assault; plea, former conviction.

The appellant was convicted, summarily, on the complaint of the Superintendent of Police, under Sec. 78, 5 & 6 It is claimed that the complaint is de- Wm. 4, C. 50, "for that he, being driver murrable for multifariousness and other- of a carriage on a highway, by negligence wise, and that, therefore, the injunction and wilful misconduct, to wit, by striking should not be granted. The defendant a horse ridden by the respondent, caused

hurt and damage to the respondent. " and also the covenant that the grantee And he was convicted, on the complaint will not build the streets, wharves, &c., of the respondent, under Sec. 42, 24 & "or make the lands in conformity with" 25 Vict., C. 100, of an unlawful assault. the said covenants, until permission shall For the defendant it was contended | be obtained from the City. Plaintiff ofthat the conviction in the first trial was a bar to a second conviction on the same facts.

fered to prove that he built a return wharf outside of any street, that he filled in other portions of the land; and also The respondent did not appear. facts tending to show that he had been Held, 1. The first conviction was a bar. injured by the sewerage turned upon. 2. It does not matter that the jurisdic- him. This evidence was rejected, the tion of the justices was conferred by stat- Court construing the deed as restricting ute. They were a court of competent the grantee and assigns from filling up, jurisdiction, and that brings their action within the rule of the common law. Wemyss, applt., v. Hopkins, respt. L. R., 10 Queen's Bench, pp. 378-382. Opinion by Blackburn, Lush and Fields, JJ., May 31, 1875.

or using any portion of the land under water conveyed until authorized by the City.

Held, error: That the only covenant in the deed for making land applies exclusively to the building of streets, wharves, &c.; that the deed conferred upon the grantee and his assigns all the rights and privileges of an absolute. owner, except as restricted by the covenants and reservations, that retaining the control of the time and manner of making streets, &c., was not inconsistent with the beneficial enjoyment of the in

New York Court of Appeals. DEED. The restriction in a deed does not affect the absolute right as owner of a fee, but to the extent of the restriction, and all restrictions are to be construed strictly termediate spaces, which belonged to the against the grantor. ownership, and that, therefore, evidence showing that such use and enjoyment had been improperly interfered with

This action was brought to recover damages sustained by plaintiff by the construction by defendants of sewers in so careless and improper a manner that plaintiff's premises were overflowed, and large quantities of earth washed away, and a large portion of a bulkhead, erected by him, carried away and destroyed. The deed under which plaintiff claims title conveyed several pieces of land, under water, by metes and bounds, adjoining certain contemplated streets running to the East River. The spaces occupied by the streets are not conveyed. The deed also contains covenants that the grantee shall within three months after being required make and construct the streets and wharves and bulkheads, "and will also fill in the same with good and sufficient earth, and regulate and pave the same, and lay the sidewalks thereof;"

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Bill for an injunction to restrain de- did not affect defendants' rights prefendants from removing and undermin- viously acquired, and that the defending the support to plaintiff's railway. ants should be compensated for the coal The answer denied the title of defendant, taken.

of the land.

Held, 1. The R. R. Co. had title by its original eatry and appropriation without objection.

and claimed the entire use and possession Complainant replied. Had the R. R. Co. trespassed, the owners of lands, in In 1862 the Mahanoy and Broad Moan-permitting a large expenditure without tain R R. Co. presented its petition, objection, would be estopped from claimpraying for the appointment of viewers, ing the land; that the release did not to assess the damages by the construction affect the easement vested in the R. R. of the road. The viewers were appointed Co., it settled the question of damages, and filed their report. The damages only, and that the lessees had notice of were $570, and the report was confirmed. Situation of the road, and had no authorIn 1869 the owners of the land and the ity to disturb the use of the land acattorney of the R. R. Co. signed and quired by the R. R. Co. filed the following agreement, and an order of Court was made in accordance therewith. "It is hereby agreed that the above suit or proceeding may be discontinued and taken for naught, and the but a discharge of damages by the acts Prothonotary is authorized to discontinue of the R. R. Co. Defendants took their the same of record, and to enter satisfac- lease subject to the easement of the R. tion upon the record of the award of five R. hundred and seventy dollars made by the owners." The land-owners released the R. R. Co. subsequently to defendant's lien, from "all suits, claims, demands and damages whatever for, upon, or by reason of their entry upon the above * land, and the location and construction of the railroads."

*

2. The release was not a conveyance,

Co., and as tenants they were concluded by their lessors' waiver.

3. The Act of 1849, authorizing the removal of railway tracks over mines, is not mandatory.

Decree affirmed with costs, and appeal *dismissed.

Defendants had the ordinary lease to mine coal. There was no demise of the land.

Luerence, Merkle & Co.'s appeal.
Per curiam opinion, June 1, 1875.

EQUITY.

The mining operations of defendants Philadelphia Common Pleas-In Equity. were endangering the support of the land over which the railway ran, and the complainant prayed for a perpetual injunction restraining defendants from undermining the road.

The title and interest of the R. R. Co. became vested in complainant by certain Acts of the Legislature of Pennsylvania.

The Court below decreed the injunction, and on appeal

Defendant argued, That the complainant must show superior title to defendant; that there being no steps taken at law it was a trespasser; that the release

A court of equity cannot reform a deec of settlement in every case where there is no power of revocation reserved.

Bill to reform a deed of settlement, which was a voluntary settlement, but made without a power of revocation. The answer of the parties desired the reformation.

Geo. Lee, complainant, made a deed. of real estate to Jacob Frick, one of de fendants, in trust, for the benefit of his brother, John Lee, for life, and after his death for the benefit of such persons as would be entitled to the estate of John

Lee under the intestate laws of the State New York Supreme Court-Gen'l Term. of Pennsylvania.

The deed was a voluntary gift by the complainant for the purposes set forth,

First Dep't.
EQUITY.

and no power of revocation was inserted A mortgage will be reformed when the

therein.

The complainant, believing that a better and more liberal provision should be made for the wife of the said John Lee, should she survive him (the children being well provided for in the enjoyment of estates in their own right under the bill of their grandfather), by his bill prayed that the deed might be altered and reformed, so that the wife of the said John Lee, should she survive him, might take the rents and profits of the property mentioned during her widowhood, alleging that the conveyancer, in preparing the deed of trust, had, by mistake, omitted to insert the power of revo

cation.

A

mortgagee has no other property in the vicinity, and when the lot is properly described in a deed for it, to which deed reference is made in the mortgage. mortgage, though not recorded, has precedence of a deed delivered afterwards. Action to reform and foreclose a mort

gage upon a piece of land in Seventy-ninth street, in the City of New York, described in the mortgage as commencing 585 feet easterly of easterly side of Fourth avenue. It was further stated to be part of the same premises conveyed to G. F. Webster by deed, recorded in the office of the Register of the County of New York, Liber 902, page 242. In the deed to Webster the description was exactly similar, except the point of beginning was stated to be 385 feet, instead of 585 feet easterly from the

It was not claimed that any instruction to insert such power had been given to him. Held, There was neither mistake nor easterly side of Fourth avenue, as given accident in any legal sense here. in the mortgage. The mortgagor claimed to own no other land on Seventy-ninth street.

Where the main purpose of the settlement, from a change in the circumstances of the parties, is in danger of being defeated, the omission to insert a power of revocation may be held to be prima facie evidence of mistake, but then it is only one circumstance liable to be overcome by others. Standing alone, as in this case, it is insufficient. The interest which minor children take under the settlement could not be divested without consent, and this neither they nor their guardian can give.

It appeared, further, that a deed was executed to a third party, but never delivered, and not recorded until three days after the mortgage, made subsequent thereto, was recorded.

Held, 1. That the circumstance accompanying the reference in the mortgage to the deed was a reasonable presumption that it was intended to mortgage

the lot described in the deed.

It is not denied that the grantor in 2. That the mortgage has priority over this case intended to divest himself irre- the deed, and is protected by the Revocably of his whole estate in this prop-cording Act, even if the deed had been erty. delivered before the mortgage was in

This is not a case we have any power fact recorded. to remedy.

Lee v. Frick, Trustee, etc., et al.
Opinion by Mitchell, J.

Sept. 23, 1875.

Brown v. Geery et al.

Opinion by Daniels, J.; Davis, P. J.,

and Brady concurring.

August 24, 1875.

Supreme Court of Pennsylvania.

EVIDENCE.

A certificate of the acknowledgment of a deed is a judicial act, and is conclusive of the facts, except where there is fraud or duress.

Scire facias upon a mortgage, given by Glasgow and his wife, of the wife's estate, to plaintiff and others. Plea, payment; and for Mrs. Glasgow, non est factum, coverture, and that she did not acknowledge said indenture or mortgage as required by the 2d Section of the Act of February 28, 1870, and the supplements thereto.

To impeach the Justice's certificate of the acknowledgment, it was shown that Mrs. Glasgow signed the mortgage voluntarily; that she knew its contents, but that it was not read to her.

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Plaintiff claimed that the evidence as to the acknowledgment should have gone to the jury; that the certificate was a judicial act, and in the absence of fraud

or collusion must have full faith and

credit, and that knowledge in the wife was the necessary thing-the means were indifferent.

Defendant insisted that the statute must be strictly followed, and that Mrs. Glasgow could show that she did not know the contents of the mortgage, though she had told the justice that she did know.

Judgment reversed, etc.
Heeter et al v. Glasgow et al.
Opinion by Paxson, J.
April, 1875.

Party in interest may use his books to refresh his memory. May use a book in which is entered daily, from memorandums taken, the items of charge and credit. His books, and such a book, may be given in evidence to corroborate his testimony.

Assumpsit to recover wages. Plea, general issue.

Plaintiff testified that he kept his accounts of labor " on paper mostly," and that he made the entries on his daybook from the paper, daily. During his absence from home the accounts were kept by his wife, or by his clerk. The book was offered in evidence, and admitted, under exception.

The defendant urged that plaintiff could refresh his memory from the book; that it was not a book of original entry, and that it was not competent to show the payment of money if it were such a book.

Held, 1. That the competency of parties to a suit to be witnesses, put them in the same condition as strangers.

2. That plaintiff could use the book to refresh his memory.

3. He could use it to corroborate his

testimony.

Nichols v. Haynes. Per Curiam opinion. March 24, 1875.

New York Supreme Court-Gen'l Term. First Dep't.

Held, 1. That the certificate of the It is competent to show, in a suit for rent magistrate should have gone to the jury.

2. That the certificate is a judicial act, and is conclusive of the facts certified to, in the absence of fraud or duress. This is well settled.

due, that the tenant was deprived of the light from a skylight, to which he was entitled under the lease. Complaint for rent due. Answer Eviction.

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