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id. 438; Talmadge v. Talmadge, 66 Ala. 199; Taney's had levied executions on it, his interest in it would have Appeal, 97 Peun. St. 74; Shaw y. Shaw, 98 Mass. 158. been appraised and set off in payment of his debts, not

Administration where a decedent dies in itinere, at the value of the farm, but at the value of the farm, Hilliard v. Cox, 1 Salk. 37; Somerville v. Somerville, 5 subject to her right of dower, the value of the farm less Ves. 750; Griffith v. Griffith, Sayer, 83; Allen v. Orans, the value of her dower right. Her relinquishment of 2 B. & Ad. 423; Well's case, 15 Jur. 160; White v. Rose, her right might be a good and valuable consideration for 3 Q. B. 493; Grant v. Great Western R. R., T U. C. C. his paying her its value. As against the plaintiff, the P. 438; Fayett Livermore, 62 Me. 229. — JOHN H. validity of the payment, like the validity of his conSTEWART, REPORTER.

veyances of property to other persons, depended upon its being free from fraud. Low v. Carter, 21 N. H.

433; Nims v. Bigelow, 45 id. 343; Lavender v. BlackRELEASE OF DOWER CONSIDERATION FOR stone, 2 Leviuz, 146, 137; Motey v. Sawyer, 38 Me. 68 PROMISE.

74; Bullard v. Briggs, " Pick. 533, 541; Needham v.

Sanger, 17 id. 500, 509; Garlick v. Strong, 3 Paige, 40; NEW HAMPSHIRE SUPREME COURT.*

Doty v. Baker, 11 Hun, 222; Smart v. Haring, 14 id.

276; Quarles v. Lacy, 4 Munf. 251; Elanton v. Taylor, RUNDLETT V. LADD.

Gilmer, 209; Taylor v. Moore, 2 Rand. (Va.) 563; Hale

v. Plummer, 6 Iud. 121; Hallowell v. Simonson, 21 id. A relinquishment of dower by a wife may be a good and 398; Ward v. Crotty, 4 Met. (Ky.) 59; Marshall v valuable consideration for a payment by her husband to

Hutchinson, 5 B. Mon. 298, 307; Woodson v. Pool, 19 her of a sum of money equal to the value of her dower

Mo. 340; Wright v. Stanard, 2 Brock. 311; 2 Kent right. As against his creditors the validity of such payment, like the validity of his conveyances of property to

Com. 174; 2 Story Eq., $ 1372; Atherly Mar. Set. 162; 1 other persons, depends upon its being free from fraud.

Bishop Mar. Womeu, ss 720, 722-725, 758.

Judgment on the verdict. RIT of entry. The land was conveyed September

14, 1859, by the former owner, to the defendant, wbo is the wife of Dauiel W. Ladd. She paid money UNITED STATES SUPREME COURT ABfor it when she received the deed. She received the

STRACT. money from her husband in the summer of 1859.

JANUARY, 1884. Between 1850 and 1858 her husband sold other land, called the Hanson farm, in different parcels, to differ

APPEAL-RULE WHERE RECORD DOES NOT CONTAIN ent persons, When the deeds were made, she refused to sign them uuless a part of the money received for

WHOLE TECIMONY.–Where an appeal was made by

defendants below on the ground of a refusal to admit the farm was paid to her. Her husband promised to pay her a certain sum and she signed the deeds. The

evidence offered, the Appellate Court refused to remoney he paid her, in the summer of 1859, was paid

verse the judgment on the ground that as the record in performance of this promise. At the time he paid

did not contain all the testimony, the court could not

see that defendants were injured by the refusal to her the money, he was indebted to the plaintiff and to other persons. The plaintiff obtained a judgment and

admit the testimony. Held error; the farthest any execution against him, and levied the execution ou

court has gone has been to hold, that when such court the land which had been conveyed to his wife.

can see affirmatively that the error worked no injury The plaintiff excepted to the refusal of the court to

to the party appealing, it will be disregarded. This instruct the jury “that a verbal agreement between

court, in Deery v. Cray, 5 Wall. 807, used this lanthe husband and wife, that he would at some future

guage: “Wherever the application of this rule is time pay her for releasing her dower in the Hanson sought, it must appear so clear as to be beyond doubt

that the error did not and could not bave prejudiced farm, was of no legal validity, and created no valid debt from the husband to the wife; aud that he had

the party's rights." Gilmer v. Higley. Opinion by

Miller, J. no lawful right to pay any money to her for such reJease as against any person to whom he owed a debt CORPORATION - RIGHT OF STOCKHOLDERS TO REat the time of said payment.” The question of fraud STRAIN ACTION OF DIRECTORS — ESTOPPEL.— Sbarein the transaction between the defendant and her

holders in a railroad company who made no opposihusband was submitted to the jury, who returned a

tion at the time to a contract by which the company verdiot for the defendant.

acquired the ownership of another railroad, and to the Stickney and Wiggin, for plaintiff.

issue of bonds by the company, held not entitled to in

terfere with the transactions. A stockbolder must Worcester & Gafney, and Heath & Fink, for defend. make a better showing of wrongs which he has sufaut.

fered, and also of efforts to obtain relief against them, FOSTER, J. The exception cannot be sustained.

before a court of equity will interfere and set aside the The dower right in the Hanson farm, which the de

transactions of a railway company or of its directors. fendant released, belonged not to her husband, but to

It is not enough that there may be a doubt as to the her. It could not be couveyed by him, vor taken by

authority of the directors or as to the wishis creditors on execution. Drew v. Munsey, Smith

dom of their proceedings. Grievances, real and (N. H.) 317, 320; Bassett v. Bassett, 10 N. H. 64; Hallo

substantial, must exist, and before an individual well v. Simonson, 21 Ind. 398. Its ralue could be ascer

stockholder can be heard he must show, in the lantaived. Jackson v. Edwards, 7 Paige, 386, 408; Doty

guage of this court, that “ he has exhausted all the v. Baker, 11 Hun, 222, 225; Bartlett v. Van Zandt, 4

means within his reach to obtain, within the corporaSandf. Ch. 396. It does not appear that she received

tion itself, the redress of his grievances or action in more than the value of it. Her husband's creditors,

conformity to his wishes." Hawes v. Oakland, 104 U. being unable to take it for his debts, were not injured

S. 450. Dimpfel v. Ohio & Mississippi Railroad Co. by her receiving a part of the price for which the farm Opinion by Field, J. was sold, equal to the value of what she released. If she had not signed the deeds, the sum she received


tax sale to whom deeds had been executed, and who would not bave been paid by the purchaser of the

was entitled to possession whose title might be quesfarm. If the farm had not been sold, and his creditors

tioned by an adverse claimant for defects in the tax * To appear in 59 New Hampshire Reports.

proceedings and upon other grounds, held entitled to

of the same goods. The legislation of Congress, referred to was designed to exclude any such method of ascertaining the dutiable value of goods. This court in referring to the general policy of the laws for the collection of duties, said in Bartlett v. Kane, 16 How. 263, " the interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion." And referring to section 3 of the act of March 3,1851, which is reproduced in section 2930 of the Revised Statutes, this court declared, in Belcher v. Linn, 24 How. 508, that in the absence of fraud, the decision of the customs officers “is final and conclusire, and their appraisement, in contemplation of law, becomes for the purpose of calculating and assessing the duties due to the United States, the true dutiable value of the importation.” To the same effect see Tappan v. United States, 2 Mason, 393, and Bailey v. Goodrich, 2 Cliff. 600. Hilton v. Merritt. Opinion by Woods, J.

STATUTE — PRACTICAL CONSTRUCTION While it there is ambiguity or doubt a practical construction of a statute by officials acting under it for a long time, would be in the highest degree persuasive, if not absolutely controlling, in its effect, with lauguage clear and precise and with its meaning evident there is no room for construction, and consequently no need of any thing to give it aid. The cases to this effect are numerous. Edwards' Lessee v. Darby, 12 Wheat. 206; United States v. Temple, 105 U. S. 97; Swift Co. v. United States, id. 695; Ruggles v. Illinois, 108 id. United States v. Graham. Oninion by Waite, C. J.



maintain a suit under the Nebraska Statute in the nature of a bill quia timet. Authorities cited: Adams Eq. 202; Pomeroy Eq. Jur., $ 248; Stark v. Starrs, 6 Wall. 409; Curtis v. Sutter, 15 Cal. 257; Shipley v. Rangeley, Daveis, 242; Devonsher v. Newenham, 2 Sch. & Lef. 208; Alexander v. Pendleton, 8 Cranch, 462; Peirson v. Elliott, 6 Pet. 95; Orton v. Smith, 18 How. 263; Clark v. Smith, 13 Pet. 99; Broderick Will Case, 2 Wall. 520. Holtand v. Challen. Opinion by Field, J.

INTEREST-REFUSED FOR LACHES-ACTION FOR EXCESSIVE DUTIES.-Interest refused as damages where there was unreasonable laches in prosecuting a suit for the recovery back of excessive duties paid. Interest is given on money demands as damages for delay in payment, being just compensation to the plaintiff for a default on the part of his debtor. Where it is reserved expressly in the contract, or is implied by the nature of the promise, it becomes part of the debt, and is recoverable as of right; but when it is giveu as damages, it is often matter of discretion. In cases of recoverjes for excessive duties paid under protest, it was beld in Erskine v. Van Arsdale, 15 Wall. 75, that the jury Inight add interest, the plaintiff ordinarily being entitled to it from the time of the illegal exaction. But where interest is recoverable, not as part of the contract, but by way of damages, if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim, it may be properly withheld. Bann v. Dalzell, 3 C. & P. 376; Newell v. Keith, 11 Vt. 214; Adams Express Co. v. Milton, 11 Bush, 49. Redfield v. Ystalyeera Iron Co. Opinion by Matthews, J.

JURISDICTION--FEDERAL QUESTION. Where a finding as to a defense not iuvolving a Federal question is broad enough to maintain the decree, even though a Federal question involved in an other defense was decided wrong, the decree will be affirmed by this court without considering that question or expressing any opinion upon it. Murdock v. Memphis, 20 Wall. 590, sustains this pratice. Jenkins y. Loewenthal. Opinion by Waite, C. J.

MUNICIPAL BONDS INTERNAL IMPROVEMENT WAGON BRIDGE.-A wagon bridge across the Platte rirer is a work of internal improvement, within the meaning of the statute of Nebraska of February 15, 1869; and that statute makes it the duty of county commissioners to levy a tax on the taxable property within a precinct in whose behall bonds have been issued under that statute to aid in constructing such a bridge, sufficient to pay the annual interest on the bonds, and without regard to any limit imposed by, or voted in accordance with chapter 9 of the Nebraska Revised Statutes of 1866. United States v. Commis. sioners of Dodge. Opinion by Gray, J.

PATENT-PROOF UNDER GENERAL DENIAL.–Under a general denial of the patentee's priority of invention, evideuce of prior knowledge and use taken without objection is competent at the final hearing on the question of the validity of the patent. Loom Co. v. Higgins, 105 U. S. 395. Zane v. Soffe. Opinion by Bradley, J.

REVENUE-APPRAISEMENT CUSTOMS-OFFICERS XOT REVIEWABLE BY JURY.-Under the statutes of Congress the appraisement by the custom officers, where duties have been paid under protest, cannot be reviewed by a jury in a suit to recover back duties. If in every suit brought to recover duties paid under protest, the jury were allowed to review the appraisement made by the customs officers, the result would be great uncertainty and inequality in the collection of duties on imports. It is quite possible that no two juries would agree upon the value of different invoices




ATTACHMENT SURETYSHIP-NOTICE.-The release of an attachment is a good consideration for a promise. Notice to a guarantor is unnecessary when the principal debtor is insolvent; also when the undertaking is absolute. Wallace v. Holmes, 2 N. H. 111; Hackett v. Pickering, 5 id. 19; Haynes v. Thom, 28 id. 386; Robinsou v. Gilman, 43 id. 485, 492; Beebe v.Dudley, 26 id. 249; Batchelder v. Weudell, 36 id. 204; March v. Putney, 56 id. 34. Evidence from a servant of a corporation of facts as to its business, communicated to him by anotber servant of the corporation, is in a suit between third parties hearsay, and inadmissible. Dearborn v. Sawyer. Opinion by Smith, J. DECEIT

ACTIONABLE FALSE REPRESENTATIONSALE Of LAND.-Whether a false representation made by the vendor in a material matter, in a sale of lavd, is actionable, depends upon whether it relates to a matter concerning which both parties have not equal means of knowledge, and whether it is an expression of opinion or an affirmation of a fact. Hoitt v. Holcomb, 32 N. H. 185, 205 ; Irving v. Thomas, 18 Me. 418; Page v. Parker, 40 N. H. 47, 71; Lawton v. Kittredge, 30 id. 500, 508; Morse v. Shaw, 124 Mass. 59; Simar Canaday, 53 N. Y. 298; Morrill v. Wallace, 9 N. H. 111, 115. False representa tions made by a vendor in the sale of land, relating to the quality and productiveness of the soil, its capacity to produce crops or to support cattle, calculated and intended to deceive the vendee, and having that effect, are actionable. Coon v. Atwell, 46 N. H. 510; Martin v. Jordan, 60 Me. 531. Messer v. Smyth. Opinion by Clark, J.


*To appear in 59 New Hampshire Reports




-- NOT



deed, equally explicit and unambiguous, that descrip- lowing them, on this question of damages to the retion must control which best expresses the intention maining estate after the carving of a right of way for of the parties, as manifested by the whole instrument. a railroad out of it. In Shattuck v. Stoneham Branch A deed is to be construed according to the intention R. Co., 6 Allen, 115, the court bases its decision partly of the parties as manifested by the entire instrument, on some time-honored usage of that Commonwealth, although such construction may not comport with the and partly on “necessity and obvious propriety.” On language of a particular part of it. Allen v. Holton, the other hand, the courts of Ohio, Indiana, Iowa, and 20 Pick. 458, 463; Worthington v. Hyler, 4 Mass. 196; other States have adhered to that which is confessedly White v. Gay, 9 N. H. 126; Johnson v. Simpson, 36 id. the general rule, and the safe one, of confining the 91; Lane v. Thompson, 43 id, 320, 324; Richardson v. testimony of witnesses to facts, including values, and Palmer, 38 id. 212. If there is an explicit and unam- leave it to the jury to find the measure of damages biguous grant of a thing, any exception or reservation from all the facts proved. Atlantic & G. W. R. Co. . which is manifestly contradictory will be rejected. Campbell, 4 Ohio St. 583; Cleveland & P. R. Co. v. Rutherford v. Tracy, 48 Mo. 325; S. C., 8 Am. Rep. 104; Ball, 5 id. 568; Morehouse v. Mathews, 2 N. Y. 514; Herrick v. Hopkins, 23 Me. 217; Pike v. Munroe, 36 Dunham y. Simmons, 3 Hill, 609; Paige v. Hazard, 5 id. id. 309; Ela v. Card, 2 N. H. 175. Driscoll v. Green. 603; Troy & Boston R. Co. v. Northern Turupike Co., Opinion by Clark, J.

16 Barb. 100; Lincoln v. Saratoga & Schen. R. Co., 23

Wend. 425; Montgomery & W. P. R. Co. v. Varner, 19 EXEMPTION


Ala. 185; Alabama & F. R. Co. v. Burkett, 42 id. 83; ABSENCE FROM STATE-EXEMPT TOOLS.-Mere tem

Evansville, I. & C. S. R. Co. v. Fitzpatrick, 10 Ind. porary absence from the State does not deprive a

120; Baltimore, P. & C. R. Co. v. Johnson, 59 id. 480; debtor of the benefit of the exemption laws. Wilkin

Same v. Stoner, id. 579; Chicago & A. R. Co. v. S. & son v. Alley, 45 N. H. 551; Caswell v. Keith, 12 Gray, N. W. R. Co., 67 III. 142; Harrison v. Iowa Midland R. 351; Pierce v. Gray, 7 id. 69; Webster v. Orne, 45 Vt. Co., 36 Iowa, 323 ; Prosser v. Wapello Co., 18 id. 40. Whether chattels are exempt from attachment as

327; Henry v. Dubuque, etc., R. Co., 2 id. 288; Dalzell tools of the debtor's occupatiou is a mixed question of

v. City of Davenport, 12 id. 437; City of Parsons v. law and fact, to be determined upon consideration of Lindsay, 26 Kau. 430. Burlington & Missouri River the debtor's einployment, and the nature, character, Railroad Co. v. Beebe. Opinion by Cobb, J. and use of the chattels claimed as exempt. A team, [Decided Oct. 9, 1883.] wagon, sled, and harness of a person engaged in the business of teaming are exempt. They are as much

MORTGAGE-SECURING NOTE, TRANSFERRED WITH tools of his occupation as the plow, cart-wheels, and NOTE BY MERE DELIVERY.-A uote payable to order chains of a farmer (Wilkinson r. Alley, 45 N. H. 551);

was indorsed by the payee, and with a mortgage sea fisherman's net and boat (Sammis v. Smith, 1 N. Y. curing it delivered to the indorsee. Held, that this 444); a music teacher's piano (Amend v. Murphy, 69 transferred title to the mortgage. A mortgage of real I11. 337); a musician's cornet (Baker v.Willis, 123 Mass.estate may be assigned orally by mere delivery, for a 194); a printer's press, cases, and types (Patten v. valuable consideration; and the same rule applies to Smith, 4 Conn. 450); or mechanics' tools used by a any chose in action. Ford v. Stuart, 19 Johus. 342; farmer in repairing his farming implements (Garrett v. Briggs v. Dorr, id. 95; Dawson v. Cole, 16 Johns. 51; Patchin, 29 Vt. 248). Rice v. Wadsworth. Opinion by Runyan v. Mersereau, 11 id. 534. The rule in such Clark, J.

cases is stated by a late writer as follows: “Jf no

writing passed, the assignment of a debt may be NEBRASKA SUPREME COURT ABSTRACT. | unperformed, to give a written transfer. It is suffi

proved by parol, even though there was an agreement,

cient proof of a parol assignment that some evidence AGENCY-SALE OF LAND BY AGENT STATUTE OF of the debt, such as a bond or mortgage, or a transFRAUDS. - It is not necessary, under the Statute of cript of a judgment, or a note, for the debt, or a part Fraud where an agent is intrusted with the sale of of it, was delivered by the assignor to the assignee, land, that he should sign the name of his principal. with intent to transfer the title to the demand." Abb. If he signs his owu name, parol evideuce is admissible Tr. Ev. 2; Hooker v. Eagle Bank, 30 N. Y. 83; Doreto show the agency and charge the principal on the mus v. Williams, 4 Hun, 458; 12 Am. Law Reg. 61. The contract. Dykers v. Townsend, 24 N. Y.57; Manufg. assignment of a negotiable promissory note, secured Co. v. Goddard, 14 How. 447-455; Curtis v. Blair, 26 by mortgage, carries with it the security. Webb v. Miss. 309-324; Williams v. Woods, 16 Md. 220; McCon. Hoselton, 4 Neb. 308, and cases cited. And in Daniel nell v. Brillbart, 17 III. 354; Johnson v. Dodge, id. 433; Neg. Iust. 557, it is said: “The assignment of a debt, Williams v. Bacon, 2 Gray, 387; Merritt v. Clason, 12 by whatever form of transfer, carries with it any bill Johns, 102; 2 Smith Lead. Cas. (6th ed.) 316. McWill- or note by which it is secured; and the converse of the iams v. Lawless. Opinion by Maxwell, J.

proposition is equally true, that the transfer by in[Decided Nov. 13, 1883.]

dorsement or assignment of a bill or note carries with

it all securities for its payment, whether a mortgage EMINENT DOMAIN-EXPERT EVIDENCE AS TO THE USE.—While courts have held that in right of way well, J.

or otherwise." Kuhns y. Bankes. Opinion by Maxcases it is proper to take the opinion of witnesses (shown to be possessed of sufficient knowledge on the [Decided Nov. 14, 1883.] subject (upon the value of the premises before and MORTGAGE - SECURING NEGOTIABLE NOTE PASSES after the taking, but few have gone the length of hold- FREED FROM EQUITIES WITH NOTE.—A bona fide puring that the witness may also give his opinion as to the chaser for value of a negotiable promissory note, seamount of damage to the remaining estate caused by cured by mortgage, before maturity, and without the taking. It cannot be denied that as a general notice, takes the mortgage as he does the note, disrule witnesses must testify to facts only. There are charged of all equities which may exist between the exceptions to this rule, one of which is where persons, original parties. Webb v. Hoselton, 4 Neb. 308; Carprofessionally acquainted with the science or practice penter v. Longan, 16 Wall. 271; Pierce v. Faunce, 47 in question, are called upon to testify on questions of Me. 507; Potts v. Blackwell, 4 Jones Eq. 58; Fisher v. science, skill, trade, and others of a like kind. Another Otis, 3 Chand. 78; Reeves v. Scully, Walk. Ch. 248. exception is found in the decisions of some of the Cheney v. Cooper. Opiuion by Maxwell, J. courts, notably those of Massachusetts, and courts fol. [Decided July 17, 1883.]


prisoner never returned the 9s. 6d. which the barmaid

gave him in the first instance. The barmaid never inMORTGAGE-INTERFERENCE BY COURT WITH MORT

tended to part with her master's money except for GAGEE'S POWER OF SALE--SOLICITOR-MORTGAGEE. —

full consideration. The prisoner having been conAlthough the court will not, except in a very strong

victed on an indictment for larceny of the money, the case, interfere at the suit of a mortgagor to restrain an court sustained the conviction. Crown Cases Reordinary mortgagee from exercising his power of sale, served, Nov. 21, 1883. Regina v. Hollis. Opinion by except on the terms of the mortgagor paying into | Lord Coleridge, C. J. (49 L. T. Rep. 572.) court what the mortgagee swears is due on the mortgage; where a solicitor acting for a client buys up securities given by the client, he is not entitled to sell

OBITUARY. until he has rendered to the client an account of what is due in respect of the advances made by him. The

SIR JOHN BYLES. plaintiff, a lady, having given mortgages to several per. The famous author of " Byles on Bills," and one of tbat the best way to settle her affairs would be for the in 1801, died on the 3rd ult. The following is from the defendant to buy up and consolidate the mortgages.

London Law Journal : The plaintiff consenting, the defendant bought up tbe mortgages for a less sum than the total amount se

The career of Sir John Byles was that of a most cured, and took transfers to .himself. After the de- successful advocate at the bar, and a very learned law. fendant had ceased to be the plaintiff's solicitor, her yer as barrister and judge in one branch of legal study. solicitors applied to him for information as to the

"Byles on Bills" for accuracy and clearness amount of his claim. In reply the defendant stated is among the best law books in the English that the amount due for principal, interest, and costs language. Lawyers and judges have for years was between 3,5001. and 4,0001., and that he was willing turned to it for information with absolute confidence. to take 2,0001. if paid at once, but declined to give It is not too much to say that without it the codificafurther information unless an undertaking to pay his tion of the law of bills of exchange would have been costs was given. He also threateued to sell the mort- impossible. Sir John Byles took an interest in this gaged property, unless the 2,0001. was paid at a short book up to a very few weeks of his death. A question date. Held, that the plaintiff was entitled to an in

whether its copyright had not been infringed was rejanction restraining the sale until after a proper ac

ferred to him to decide whether any and what proceedcount had been given of the amount due in respect of ings should be taken. We believe the matter was the defendant's advances, on the terms of the plaintiff amicably arranged, but the incident is curious as show. paying into court a sum sufficient to cover the amount

ing that one of his last acts was in vindication of the probably due. Ct. of Ap., July 17, 1883. MacLeod v.

book which in the future will be his chief title to fame. Jones. Opinions by Brett, M. R., and Cotton and

Sir John was thirty years of age before he was called Bowen, L. JJ. (49 L. T. Rep. [N. S.) 321.)

to the bar, and up to that he had been in business.

His business experiences, perhaps, suggested to him SURETYSHIP-DISCHARGE OF SURETY BY DEALINGS the production of a book on one of the most important WITH PRINCIPAL. -The rule that a surety is discharged branches of commercial law. The success of the book by the creditor dealing with the principal, or with a still further determined the bent of his legal studies co-surety, in a manner at variance with the contract, and practice. He became a good commercial lawyer, does not apply to the case of co-soreties who have con- but he never gained any great reputation in other tracted severally. The appellant agreed to guarantee branches of the law. His mind wanted that breadth advances made by the respondent bank to one K.to the and clearsightedness which are essential to the intelamount of 1,0001.; M. had previvusly guaranteed ad. lectual equipment of a great lawyer, who is to lay vances to K. to the amount of 6001. The bank after-down propositions of universal application. He will ward released M. from his liability in consideration of never take the place filled by James, Willes or Jessel, a new guaranty given by him. Held, that such release but will always be known as Byles on Bills, a result to constituted no defense in an action by the bank against which the “artful aid ” of alliteration conduces. the appellant on his guaranty, it not being averred that "Many are the stories told of Sir John Byles when at his right of contribution against M., if any, was injur. the bar and on the bench. His horse figures in several iously affected. Privy Council, July 11, 1883. Ward v. of them. When he was at the bar he had a horse, or National Bank of New Zcaland. (49 L. T. Rep. (N. | rather a pony, which used to arrive at King's Bench S.) 315.)

Walk every afternoon at three o'clock. Whatever his

engagements, Mr. Byles would manage by hook or by AGENCY-WHEN AGENT TO SELL MAY WARRANT. A servant intrusted by his master with the sale of a

crook to take a ride, generally to the Regent's Park horse at a fair may have an implied authority to give and back, on this animal, the sorry appearance of

which was the amusement of the Temple. This horse, a warranty to the purchaser. Brady v. Todd, 9 C. B. (N. S.) 592, commented on and distinguished. Q. B.

it is said, was sometimes called “Bill” to give opporDiv., December 4, 1883. Brooks v. Hassell. Opinions Bills;” but if tradition is to be believed, this was not

tunity for the combination “there goes Byles on by Lord Coleridge, C. J., and Stephen, J. (49 L. T.

the name by which its master knew it. He, or he and Rep. [N. S.) 569.)

his clerk between them, called the horse “Business ; CRIMINAL LAW - CONSTRUCTION -LARCENY.-The and when a too curious client asked where the Serjeant prisoner and another person went to an inn. The was, the clerk answered with a clear conscience that prisoner asked the barmaid for whisky. He put down he was “out on Business.” When on the bench, Mr. half a sovereign, and received 9s. 6d. in silver in Justice Byles' taste in horseflesh does not seem to have change. He then asked for the half-sovereign back, improved. It is related of him that in an argument saying he thought he had change. She gave it back. upon section 17 of the Statute of Frauds he put to the His companion then asked for a cigar. She served counsel arguing a case, by way of illustration. him with it. The prisoner then put down 10s. in sil- | pose Mr. So and So," he said, “ that I were to agree to ver and a half-sovereign, asking the barmaid to give sell you iny horse, do you mean to say that I could not him a sovereign for it, which she did. His compan- recover the price unless," and so on. The illustration ion kept on engaging the barmaid's attention. The was so pointed that there was no way out of it but to



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say, “My lord, the section applies only to things of the name is not connected with many great decisions, but value of 101.," a retort which all who had ever seen he took part in the case of Chorlton v. Lings, in which the horse thoroughly appreciated. Instances of his it was decided that women did not obtaiu Parliamenastuteness in advocacy were numerous. His mode of tary votes by the representation of the people act, winning cases was not by carrying juries with him by 1867, in virtue of the new franchise conferred on a storm of eloquence, or cross-examining witnesses every man." His judgment is an example of his out of court, but by discovering the weak point in his rather quaint and old-fashioned judicial style. “No adversary's case and tripping him up, or by the nice doubt," he says, the word "man” in a scientific conduct of such resources as his own case possessed. treatise on zoology or fossil organic remains would inOn one occasion he was retained for the defendant clude men, women and children as constituting the with Mr., afterward Mr. Justice, Willes, whom he led highest order of vertebrate animals. It is also used in at the bar, but who was afterward his senior in the an abstract and general sense in philosophical or reCourt of Common Pleas, in a case of some complica- ligious disquisitions. But in almost every other contion tried before Chief Justice Jervis. At the end of nection the word “man" is used in contradistinction the day (Saturday), Mr. Byles submitted that there woman.

* Women for centuries have alwas no case, and the judge rose to give his decision ways been considered legally incapable of voting for next week. In the interva: Willes asked Byles why he members of Parliament, as much so as of being themdid not take a particular point which both had agreed selves elected to serve as members. In addition to all in consultation to be fatal to the plaintiff's case. I which, we have the unanimous decision of the Scotch left that to the chief justice," said Byles; “I led up judges. And I trust their unanimous decision and to it, and walked round it, so that he cannot miss it, our unanimous decision will forever exercise and lay but if I had taken it he would have decided against this ghost of a doubt, which ought never to have made us at once.” Aud so it proved, for on Monday morn- its appearance." The following anecdote is also ing the chief justice gave an elaborate judgment over- floating around: “A learned counsel on one occasion ruling all the points taken, but nonsuiting the plaint- was pleading a cause before Sir John Byles and made iff on a ground which he said he was astonished to find a quotation from a work, 'which,' said he, 'I hold in had not been taken by either of the very learned coun- my hand, and is commonly called “Byles on Bills.' sel for the defendant, but which in his opinion was Sir John Byles: Does the learned author give any auconclusive. In another case Byles was for the plaint- thority for that statement? Counsel, referriug to the iff, and Edwin James for the defendant, in an action work: No, my lord, I cannot find that he does. Sir on a bond tried before Chief Justice Tindal. Byles John Byles : Ah! then do not trust him; I know him was a long time in opening his case and examining his well." witnesses, until the chief justice became restless. Still more restless was Edwin James, who wanted to go elsewhere. Byles, seeing his impatience, whispered

NOT ALL A DREAM. to him, “give me judgment for the principal, and I will let you off the interest." Accordingly a verdict was taken for the plaintiff for the amount of the bond

A lawyer by his well-worn desk without interest. Afterward Edwin James asked

Sat silent and alone, Byles why he had foregone the interest? “You need

The fire athwart the office hearth, only have put in the bond,” said he, “and you would

In fitful flashes shone. have had both.” “That was just the difficulty," said Byles, "the bond was not in court.” In those days

The night was dark, the pelting storm adjournments were not so easily granted as now, and

Beat 'gainst the window pane; in any case the costs of the day would have exceeded

Before him lay his latest brief, the interest. A reputation for successes like these

Each point and ref'rence plain. made Byles a formidable adversary. On one occasion

On broken chairs, huge piles of books at Norwich he had for an opponent a counsel whose

An ample fortress made; strong point was advocacy rather than law. Byles, who was for the defendant, went into the court be

His trusty pen, all charged with ink,

Withiu his reach was laid. fore the judge sat, and in the presence of his opponent he called to his clerk, “What time does the midday

A sput'ring candle burning dim train leave for London?” “Half-past twelve, sir."

Could ne'er dispel the gloom, "Then mind you have everything ready; and meet me

That like a pall in dusky folds in good time at my lodgings.” “But, Serjeant,” said

O'er hung the silent room. the plaintiff's counsel, “this is a long case; it will last at least all day." "A long case!” said Byles; “it will The bell tolls out the hour of twelve, not last loug; you are going to be non-suited." The

The watchman cries, “all's well.” advocate, who stood much in awe of his opponent's His ear seems deaf to earthly sounds, legal skill and knowledge, spoke to his client. The re- They ne'er can break the spell. sult was that the case was settled for a moderate sum, and Mr. Byles caught his train.

Tired nature may have yielded sway Mr.: Justice Byles was a strong Tory, and he had a To sleep's enchanting thrall, horror of Judicature Acts, the fusion of law and equity, While busy fancy roams elate and other modern innovations which were floating in Thro' mem'ry's pictured ball. the air in 1873. He declared that he would not remain an hour longer on the bench than his fifteen years. Ou He sees perchance his dear old home the first day of Hilary Term, 1858, he took his seat on The fount of purest joys, bench of the Court of Common Pleas, and on the first Lives o'er again bis halcyon days, day of Hilary, 1873, his resignation arrived. The With romping girls and boys. moment was inconvenient for the appointment of a new judge, but the judge could not resign before, and A hoidenish youth away at school, he would not wait a moment. Of his career on the In hot pursuit of knowledge, bench it is enough to say that he was acute, courteous, He solves the problem of his life, and upright, as he was kindly in private life. His And graduates from college.

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