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The plain tendency of these cases however is to ap- PRACTICE-EXCEPTION MUST BE TAKEN AT TRIALply the rule of preponderance of proof in all issues in | The rule is well established and of long standing that civil cases.

an exception to be of any avail must be taken at the A finding for the government against the citizen trial. It may be reduced to form and signed aftermay be followed by deprivation of life or liberty, and ward, but the fact that it was seasonably taken must hence the propriety of the rule that no such finding appear affirmatively in the record by a bill of excepshould be made without the strong and clear proof re- tions duly allowed or otherwise. Phelps v. Mayer, 15 quired by the rule, beyond a reasonable doubt. But How. 160; United States v. Breitling, 20 id. 254; French in a controversy between man and mau, affecting v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U. nothing but a claim, or a defense to damages, and in- S. 555; Hunnioutt v. Peyton, 102 id. 354. United States volving nothing but pecuniary or property interests, Carey. Opinion by Waite, C. J. the reason of the rule wholly fails, and the parties should be on an equality as to the quantum of proof

PROBATE LAW-DEBTS ASSETS AT DECEDENT'S DOrequired to establish any material fact. The tendeucy MICIL-DEBTS DUE FROM UNITED STATES-MANDAof modern decisions in other States is to the view we

MUS--UNITED STATES TREASURER.-(1) The general have here taken. Kane v. Hibernia Ins Co., 10 V room,

rule of law is well settled, that for the purpose of 697 ; Welsh v. Jugenheimer, 56 Iowa, 11; Behrens


founding administration all simple contract debts are Co., 58 id. 26; Blazer v. Ins. Co., 37 Wis. 31; Thayer v. assets at the domicil of the debtor; and that the loBogle, 30 Me. 475; Elliott v. Van Buren, 33 Mich. 51; cality of such a debt for this purpose is not affected by Gordon v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25

a bill of exchange or promissory note having been N. H. 114; Bradis v. Bliss, 35 Vt. 326; Prather v. given for it, because the bill or note does uot alter the Mich. Mut. Life Ins. Co., 7 Rep. 293.

nature of the debt, but is merely evidence of it, and The view we have taken of the question presented

therefore the debt is assets where the debtor lives, in the charge of the court, in the Common Pleas, re

without regard to the place where the instrument is quires a reversal of the judgment of that court, and

found or payable. Yeomans v. Bradshaw, Carth. 373; we therefore take no notice of the error assigned, that

S.C., Comb. 392; Holt, 42; 3 Salk. 70, 164; Abinger, C. the court erred in overruling a motion for a new trial

B. in Attorney-General v. Bouwens, 4 M. & W. 171, on the ground that the verdict was not supported by 191; S. C., 1 Horn & Hurlstone, 319, 324; Parke, B., in sufficient evidence.

Mondel v. Steel, 1 Dowl. (N. S.) 155, 157; Slocum v. Judgment reversed. Sanford, 2 Conn. 533; Chapman v. Fish, 6 Hill, 554;

Owen v. Miller, 10 Ohio State, 136; Piuney v. McGreg

ory, 102 Mass. 186. An administrator is of course UNITED STATES SUPREME COURT AB

obliged to demand payment at the place where the

bill or note is payable; and he may find difficulty, unSTRACT.

less it is payable to bearer, in suing upon it in a place JANUARY 7, 1884.

in which he has not taken out administration. But

payment to the administrator appointed in the State APPEAL-JURISDICTION DEPENDENT ON AMOUNT.- in which the intestate had his domicil at the time of The judgment in this case is for $7,275.16, but it ap- his death, whether made within or without that State. pears affirmatively on the face of the record that of

is good against any administrator appointed elsethis amount $2,669.03 was not disputed below. Held,

where. Wilkins v. Ellett, 9 Wall. 740. (2) Debts due that this court has no jurisdiction. Gray v. Blanch- from the United States are not local assets at the seat ard, 97 U. S. 564; Tintsman v. National Bank, 100 id.

of government only. As was said in Vaughan F. 6; and Hilton v. Dickinson, 108 id. Jenness v. Citi- Northup, 15 Pet. 1, 6, and repeated in Mackey v. Core, zens' Nutional Bank of Rome. Opinion by Waite, 18 How. 100, 105: “The debts due from the goveruC. J.

ment of the United States have no locality at the seat BANK-AUTHORITY OF CASHIER TO REPRESENT- of governmeut. The United States, in their sovereign PRESUMPTION FROM COURSE OF BUSINESS.—A banking capacity, have no particular place of domicil, but pos. corporation, whose charter does not otherwise pro- sess, in contemplation of law, an ubiquity throughout vide, may be represented by its cashier in transac- the Union; and the debts due by them are not to be tions outside of his ordinary duties, without his au- treated like the debts of a private debtor, which conthority to do so being in writing, or appearing in the stitute local assets in his own domicil. On the conrecords of the proceedings of the directors. His au- trary, the administrator of a creditor of the governthority may be by parol and collected from circum- ment, duly appointed in the State where he was domistances or implied from the conduct or acquiescence of ciled at the time of his death, has full authority to rethe directors. It may be inferred from the general ceive payment and give a full discharge of the debt manner in which, for a period sufficiently long to es- due to his intestate, in any place where the governtablish a settled course of business, he has been suf- ment may choose to pay it." In Vaughan v. Northup, fered by the directors, without interference or in- an administrator, appointed in Kentucky, of an inquiry, to conduct the affairs of the bank. When dur- habitant of that State, who died there intestate and ing a series of years, or in numerous business transac-childless, received a sum of money from the treasury tions, he has been permitted in his official capacity, of the United States, for military services rendered by and without objection, to pursue a particular course the intestate during the Revolutionary War; and a of conduct, it may be presumed, as between the bank bill in equity, filed against him in the District of Col. and those who in good faith deal with it upon the umbia by the next of kin, for their distributive shares basis of his authority to represent the corporation, that of the money, was dismissed for want of jurisdiction, he has acted in conformity with instructions received because au administrator, appointed in and deriving from those who have the right to control its opera- his authority from one State, was not liable to be sued tions. That which directors ought, by proper dili- elsewhere, in his official character, for assets lawfully gence, to have known as to the general course of the received by him under and in virtue of his original letbank's business, they may be presumed to have known ters of administration. (3) The treasurer of the in any contest between the corporation and those who United States cannot be compelled by writ of mandaare justified by the circumstances in dealing with it mus to pay to an administrator appointed in the Disupon the basis of that course of business. Martin v. trict of Columbia, of an inhabitant of one of the States Webb. Opinion by Harlan, J.

of the Union, the amount of a draft payable to the intestate at the treasury out of an appropriation made the presumptions are in favor of a finding of the trial by Congress, and held by such administrator. Wyman court that the appearance of the attorney at law is v. United States. Opinion by Gray, J.

biuding upon the defendant, yet if the uncontradicted evidence establishes that the attorney appeared for the

defendaut without his knowledge or authority, express UNITED STATES CIRCUIT COURT AB- or implied, and that the defendant never ratified the STRACT. *

act of the attorney, and promptly disavowed it, such

finding is without support. Butcher v. Bank, 2 Kans. CHINESE- CONSTRUCTION OF STATUTE – LAW AP

70; Railway Co. v. Streeter, 8 id. 133; Foremau v.

Carter, 9 id. 674; Hanson v. Wolcott, 19 id. 207; MasPLIES TO RACE. — A Chinese laborer, born on the island of Hong Kong after its cession to Great Britain,

tin v. Gray, id. 458; Shelton v. Tiffin, 47 U. S. 163; is within the provisions of the act of Cougress of May

Critchfield v. Porter, 3 Ohio, 518; Harshey v. Black6, 1882, restricting the immigration of Chinese laborers

marr, 20 Iowa, 61 : Lawrence v. Jarvis, 32 I11. 304; Arnott to the United States. The purpose of the act was to

v. Webb, 1 Dill. 362; Price v. Ward, 1 Dutch. 225; exclude laborers coming from China subject to the

Pennywit v. Foote, 27 Ohio St. 600; Dobbin v. Dupree, stipulations of the treaty of 1880 with that country,

39 Ga. 394; Wiley v. Pratt, 23 Ind. 628. See also and to exclude laborers of the Chinese race coming Wetherby v. Wetherby, 20 Wis. 526; Ferguson v. from any other part of the world. U. S. Circuit Court,

Crawford, 70 N. Y. 253; Clark v. Little, 41 Iowa, 497. California. September 24, 1883. Matter of Ah Lung.

Reynolds v. Fleming. Opinion by Horton, C. J. Opinion by Field, J.


PAROL-BAILMENT-ESTOPPEL AS TO TITLE. -(1)While SEA-GOING VESSELS. – - The State board of railroad

a written instrument which contains simply an accommissioners has no power to regulate or interfere facie evidence of the fact, and may be contradicted by

knowledgment of payment or delivery is only prima with the transportation of persons or merchandise, by a steamship company, between ports within the State,

oral testimony, yet when in addition to such acknowlif they be in transit to or from other States, or when

edgment it contains an agreement to do any thing in in navigating the ocean the vessel goes beyond a ma

respect to the property delivered, then as to this latter

matter it stands on the basis of any other written conrine league from the shore. This power has been conferred upon Congress, and is exclusive. U.S. Circuit

tract, and cannot be contradicted or varied by parol Court, California. September 17, 1883. Pacific Coast

testimony. (2) The general rule is, that a bailee reSteamship Co. v. Railroad Commissioners of California.

ceiving goods from his bailor cannot set up title in

himself at the time of the bailment, for the purpose of Opinion by Field, J.

defeating a recovery by the bailor. Vosburgh v. HuntREMOVAL OF CAUSE-PRACTICE - GARNISHMENT OF ington, 15 Abb. Pr. 254; Simpson v. Wren, 50 Ill. 222; JUDGMENT.-In cases removed from a State court the Kelly v. Patchell, 5 West Va. 585. Thompson v. WilCircuit Court will not review orders made prior to the liams. Opinion by Brewer, J. removal, if the State court acted within its jurisdic

INJUNCTION-LIABILITY ON UNDERTAKING WHEN tion. It will take the case precisely as it finds it, accepting all prior decrees and orders as adjudications in

SUIT DISCONTINUED.—Where a plaintiff, on commencthe cause. Hence, where the judgment of a Federal

ing a suit and obtaining a temporary injunction, gives

an undertaking to secure to the party injured the court had been garnished and the State court had made an order upholding the proceeding, the Circuit

damages he may sustain if it be finally decided that the Court declined to review the propriety of this order.

injunction ought not to have been granted, and subseIt seems however that the court whose judgment was

quently appears in court and dismisses the action, thus garnished might properly disregard the writ.

without prejudice to a future action, and the court

enters judgment dismissing the action, Duncan v. Gegan, 101 U. S. 810; French v. Hay, 22

such Wall. 231; Brooks v. Farwell, 4 Fed. Rep. 166;

judgment is equivalent to a final decision by the

court that the plaintiff was not entitled to the temWerthein v. Continental Railway & Trust Co., 11 id. 689; Milligan v. Lalance, etc., Co., 17 id. 465; Smith v.

porary order of injunction, and after the judgment Schwed, 11 Rep. 730. U. S. Circuit Court, E. D.

an action lies upon the injunction undertaking. CarMichigan. October 15, 1883. Loomis v. Harrington.

penter v. Wright, 4 Bosw. 655; Cunningham v. White,

45 How. Pr. 486; Dowling v. Polack, 18 Cal. 625; Opinion by Brown, J.

Loomis v. Brown, 16 Bark. 325 ; Sherman v. Central REMOVAL OF CAUSE-EMINENT DOMAIN PROCEED- Mills, 11 How. Pr. 269; Coates v. Coates, 1 Duer, 644. INGS.-A judicial proceeding to appropriate private See also Marbourg v. Smith, 11 Kas. 554; Fox v. Hudproperty to the use of a railway corporation is subject son, 20 id. 247. Mitchell v. Sullivan. Opinion by to the usual incidents of a civil action or suit, includ- Horton, C. J. ing the liability to removal into the Circuit Court. U. S. Circuit Court, Oregon. November 16, 1883. North

PROBATE LAW-ADMINISTRATOR CANNOT COMPROern Pacific Terminal Co. v. Lowenberg. Opinion by


ministrator has no power to compromise any claim, debt or demand belonging to the estate in his hands to

be administered, and accruing in the life-time of the KANSAS SUPREME COURT ABSTRACT.

deceased, so as to bind the estate, without the consent JANUARY TERM, 1883.+

of the Probate Court. Fox v. Van Norman, 11 Kas.

214; Reitzell v. Miller, 25 III. 68; Clark v. Hogel, 54 id. ATTORNEY - WHEN APPEARANCE BY, NOT BINDING 227 ; Stagg v. Lennefiser, 50 Mo. 341; Cape Girardeau ON CLIENT-ESTOPPEL.—The appearance in an action County v. Harbison, 58 id. 90; Parham v. Stith, 56 by an attorney at law for a defendant whom he pro- Miss. 465. Ætna Life Insurance Co. v. Swayze. Opinfesses to represent is presumed to be authorized until ion by Horton, C. J. the contrary is shown, and it devolves upon the de

MORTGAGE-PRIORITY AS BETWEEN RECORDED AND fendant impeaching this authority to show by positive

UNRECORDED-BURDEN OF PROOF.--One who seeks to proof that such appearance is invalid; and while all

have priority given to an unrecorded over a later and * Appearing in 18 Federal Reporter.

recorded mortgage, has the burden of proof, and must + Appearing in 30 Kansas Reports.

affirmatively show actual notice. A purchaser of a re


corded mortgage, whether given to secure a negotiable cases, before any wrong can be imputed to the party or non-negotiable note, who purchases without actual in possession in good faith, and before he can be subnotice of a prior unrecorded mortgage, obtains priorityjected to the expenses of a suit, he must be requested over such unrecorded mortgage; and this, notwith- to give up the property and refuse so to do. Campbell standing the party from whom he purchased the sec- v. Quackenbush, 33 Mich. 288; Morris v. Danielson, 3 ond mortgage had notice of the prior mortgage. The Hill, 168. A demand aud refusal are circumstances fact that an unrecorded mortgage is for the purchase. only tending to show a wrongful detention. Hill v. money, gives it no priority over a later recorded mort- Covell, 1 N. Y. 522; Buckland v. Barton, 2 H. BI. 136; gage. Mott v. Clark, 9 Penu.' St. 399, § 262; Choteau Baldwin v. Cole, 6 Mod. 212; McCombie v. Davies, 6 v. Jones, 11 Ill. 300; Lightner v. Mooney, 10 Watts, East, 538; Hoare v. Parker, 2 T. R. 376. But unless 407. Jackson v. Reid. Opinion by Brewer, J.

the plaintiff is entitled to have his demand complied with at the time it was made, it can lay no foundation

for the action or change the character of the defend. MICHIGAN SUPREME COURT ABSTRACT. ant's possession. Kelsey y. Griswold, 6 Barb. 436.

Adams v. Wood. Opinion by Sherwood, J. DEED OF REAL ESTATE CANNOT BE RESCINDED FOR [Decided Oct. 10, 1883.] PARTIAL FAILURE OF CONSIDERATION.-When there is a conveyance of land with a warranty, and there is a mistake which does not go to the entire cousidera

MASSACHUSETTS SUPREME JUDICIAL tion of the purchase, the purchaser is not at liberty to

COURT ABSTRACT. rescind because of it. Buckles v. Northern Bank, 63

SEPTEMBER, 1883. Ill. 278; Templeton v. Jackson, 13 Mo. 78. Therefore an action to rescind is not maintainable. The general rule is that the action of assumpsit will not lie to try

CARRIER-SALE OF GOODS TO SWINDLER TO BE SENT the title to land. Hogsett v. Ellis, 17 Mich. 351; Cod

BY-CARRIER DELIVERING TO SWINDLER NOT LIABLE v. Jenkins, 14 Mass. 93; Boston v. Binney, 11

-A swindler representing himself to be Edward Pope, Pick. 1; Baker v. Howell, 6 Serg. & R. 481; King v.

a reputable merchant at Dayton, Ohio, purchased Mason, 42 III. 225; Marshall v. Hopkins, 15 East. 309;

goods from plaintiffs in Boston, on credit, to be Newsome v. Graham, 10 Barn. & C. 234. If the sup

shipped to Dayton to Edward Pope. The goods were posed conveyance had been altogether void by reason

shipped as directed by plaintiffs who believed the of there having been no such land (D'Utricht v. Mel

swindler to be the one he represented himself to be by cher, 1 Dall. 428), or because the instrument itself was

the defendant carrier, and was delivered by it at Day. a mere nullity (Tollenson v. Gunderson, 1 Wis. 113), or

ton to the swindler. Held, that the carrier was not because the deed was given to carry into effect an exe

liable to plaintiffs for the goods. The fact that the sel. cution sale which was void (Putnam v. Westcott, 19

ler was induced to sell by fraud of the buyer makes Johns. 73), or if the trade had been brought about by

the sale voidable, but not void. He could not hare fraud, and the vendee had rescinded it on that ground,

supposed he was selling to any other person; his intenas he lawfully might (Early v. Garrett, 9 Barn. & C.

tion was to sell to the person present and identified by 928; Vining v. Leeman, 45 Ill. 246; Warren v. Tyler, 81

sight and hearing; it does not defeat the sale because id. 15; Masson v. Bovet, 1 Denio, 69), the right to re

the buyer assumed a false name or practiced any other claim the money in this form of action might be ad

deceit to induce the vendor to sell. Cundy v. Lind. mitted. Leal v. Terbush. Opinion by Cooley, J.

say, L. R., 3 App. Cas. 459. The sale was voidable by

the plaintiffs, but the defendant had no duty to inquire [Decided Dec. 20, 1883.]

into its validity. The person who bought them, and PARTNERSHIP-PARTNER OR ASSIGNEE CANNOT SUE who called himself Edward Pope, owned the goods, FIRM ON FIRM NOTE.—Where there is a note given by and upon their arrival in Dayton, had the right to dethe firm to one of its members, the payee cannot bring mand them of the carrier. In delivering them to him, suit at law. He cannot sue himself (Chitty Cont. 289; the carrier was guilty of no fault or negligence. It deColly. Partn. 642; 2 Lindl. Parto. 1030; Eastman v. livered them to the person who bought and owned Wright, 6 Pick. 320; Burley v. Harris, 8 N. H. 235; them, who went by the name of Edward Pope and Griffith v. Chew, 8 Serg. & R. 30; Portland Bank v. thus answered the direction upon the packages, and Hyde, 2 Fairf. 196; Mainwaring v. Newman, 2 Bos. & who was the person to whom the plaintiffs sent them. P. 124; 6 Taunt. 597; Hammond v. Teague, 6 Bing. 197); Dunbar v. Boston & Providence R. Co., 110 Mass. 26. neither can his assignee bring suit. Learned v. Ayres, Edmunds v. Merchants' Despatch Transportation Co 41 Mich. 677. Davis v.Merrill. Opinion by Sherwood, J. Opinion by Morton, C. J. [Decided Oct. 17, 1883.]

FIRE INSURANCE-CHANGE OF TITLE TO LAND ON REPLEVIN - WHEN ALLOWABLE — WHEN DEMAND WHICH INJURED BUILDINGS STAND-DAMAGES WHEN NECESSARY.-When the original taking of personal BUILDINGS BURNED WERE TO BE REMOVED.-Plaintiff property is felonious, no matter in whose hands the company had held a policy with defendant insurance property may be subsequently found, the owner is en- company upon buildings owned by it situated upon titled to his writ of replevin without demand, because land to which it had also title. It sold the land but no person can acquire a rightful possession through a retained the ownership of the building with the right felonious taking. Trudo v. Anderson, 10 Mich. 357 ; to remove the same before a specified time. It then Ballou v. O'Brien, 20 id. 304; Seaver v. Dingly, 4 procured a policy with defendant upon the buildings, Greenl. 306; Wells Repl., § 347; Barrett v. Warren, 3 making no misrepresentations nor concealing any Hill, 348; Ayres v. Hewitt, 19 Me. 281. And the same thing as to the title, but not disclosing the title to the is true when the original taking is a trespass, so long land. Before the time for removing the buildings exas the trespass remains unsatisfied and the owner is pired they were burned. Held, that the policy was not in some way estopped from asserting the wrong. valid. The defendant saw fit to issue this policy with. Jackson v. Dean, 1 Doug. 519; Baker v. Fales, 16 Mass. out any specific inquiries of the plaintiff as to the title 46; Wells Repl., $ 54; Riley v. Boston Water-power Co., to the land and without any representations by the 11 Cush. 11; Galvin v. Bacon, 11 Me. 28. A different plaintiff on this point. It was its owu carelessness, rule prevails when the taking, though wrongful, arises and it cannot avoid the policy without proving intenout of contract relations with the rightful owner, and tional misrepresentation or concealment on the plaintis claimed to be in pursuance thereof. In all such iff's part. An innocent failure to communicate facts about which the plaintiff was not asked will not have plaintiff is not thereby deprived of his right of action. this effect. Commonwealth v. Hide & Leather Ins. His damages are special and peculiar and not sustained Co., 112 Mass. 136; Fowle v. Springfield Ins. Co., 122 id. in common with the public. Wesson v. Washburn 191; Welsh v. Philadelphia Ins. Co., 127 id. 383. Held Iron Co. 13 Allen, 95; Brayton v. Fall River, 113 Mass. also, that the measure of damages that plaintiff was 218. Mears v. Dole. Opinion by Colburn, J. entitled to recover was the actual intrinsio cash value of the property destroyed, and such a sum as it would have cost at the time of the fire to have replaced and MAINE SUPREME JUDICIAL COURT restored the property to the condition in which it was

ABSTRACT. * before, without regard to the fact that it was to be re moved at the time specified. It is not in adjusting a BOUNDARY-UPON CHANNEL OF RIVER.- When the loss that the true rule of indemnity is to ascertain what channel of a river is named as the boundary between the actual loss to the plaintiff is, or in other words, to two towns, the line is the thread of the channel. what extent he has suffered by the fire. It ofteu hap- When the line runs "to the road thence by the road," pens that the insured may gain an advantage by the the grant is the center of the road, even though the fire, by reason of some collateral contracts or relations measurement of distances would extend only to the with other parties. King v. State Ins. Co., 7 Cush. 1; side of the road. Oxton v. Groves, 68 Me. 371. A Suffolk Ins. Co. v. Boyden, 9 Allen, 123; Foster v. grant of land bounded on a highway carries the fee in Equitable Ins. Co., 2 Gray, 216. So the market value the highway to the center, unless the terms of the conof the property burned is not always a fair rule of ad.

veyance unequivocally exclude such construction. justment. Washington Mills and Emery Co v. Wey- Low v. Tibbetts, 72 Me. 92. Nothing short of an exmouth & Braintree Mutual Fire Insurance Co. Opin- press intention to exclude the soil of the highway will iou by Morton, C. J.

have such effect. Salter v. Jonas, 10 Vroom, 469; Paul LANDLORD AND TENANT — LANDLORD NOT LIABLE

v. Carver, 26 Penn. 223. In case of fresh-water streams, TO TENANT FOR PERSONAL INJURY FROM DEFECT IN when such stream is the boundary, the deed passes the PREMISES LEASED. — A landlord held not liable fee to its center. The words “to the stream, thence for personal injuries to a tenant caused by up or down the river,” in a deed pass a title to the a defective stairway

in the rented house. thread of the stream. Rice v. Monroe, 36 Me. 309. There is no warranty implied in the letting The general rule is, that when the river is the boundary of an unfurnished house or tenement that it is the grantee takes usque filum aquæ, unless the river be reasonably fit for use. Dutton v. Gerrish, 9 Cush. 89; expressly excluded from the grant by the terms of the Foster v. Peyser, id. 292. Buildings are let in all sorts deed. Luce v. Carley, 24 Wend. 451. When the river of condition, and the law is unusually strict in ex

is a boundary, the thread of the stream is the dividing empting the landlord from liability for injuries aris- line. When the channel is the boundary, the thread ing from defects when there is no warranty and no

of the channel constitutes the boundary. Cold actual deceit. Tenants often make slight changes in Spring Iron Works v. Tolland, 4 Cush. 492. Inhabitthe premises for their own convenienience, the effect of ants of Warren v. Inhabitants of Thomastown. Opinwhich the landlord cannot, without examination, ion by Appleton, C. J. know. If a succeeding tenant 18 permited to examine [Decided July 5, 1883.) the premises, the rule of caveat emptor applies. Bowe

MORTGAGE-INTEREST AND ASSIGNMENT.-When a v. Hunking. Opinion by Field, J.

mortgage has been assigned and the assignee enters NEGLIGENCE-REMOVAL OF SOIL BY LAND OWNER

into possession, he cannot claim that interest should LETTING IN SEA TO NEIGHBOR'S LAND.-A land owner

be added to the mortgage debt, and that sum constitook away gravel from his owu land near the sea

tute a new principal upon which interest is to be cast. whereby the sea was let in to his neighbor's land and Lewis v. Small. Opinion by Appleton, C. J. undermined it. Held, that he was liable to his neigh- [Decided June 27, 1883.] bor for the injury thus done. A person has no right

PRESCRIPTION—TO FLOW WATER-WHAT ESSENTIAL to carry away the gravel or other material of his land

TO ACQUIRE.-In order to acquire by prescription a if the consequence would be to turn a watercourse or let in the sea so as to inundate or injure the land of right to flow lands without the payment of damages

therefor the land must have been flowed for some porhis neighbor. Commonwealth v. Alger, 7 Cush. 86.

tion of each year for twenty consecutive years, doing The defendant by his excavations for his own pur damage to it to some appreciable extent. It was held poses brought the sea upon his land where it would not in Tinkham v. Arnold, 3 Me. 120, that an original have been but for the excavations, and as a conse

graut cannot be presumed from lapse of time, and prequence it has escaped and acted upon the plaintiff's scriptive rights cannot be acquired in the manner set land so as to cause damages, and for these he must be

forth. In Hathorn v. Stinson, 10 Me. 224, 239, the held responsible. Fletcher v. Rylands, L. R., 1 Ex. 265, 279; L. R., 3 H. L. Cas. 330, 339; Wilson y. New ing of lauds for the support of mills for long periods

court queries, but does not decide, whether the flow Bedford, 108 Mass. 261. While the sea is regarded as a

may not under some circumstances afford presumpcommon enemy, and it is a rule that each man may de- tive evidence, if not of grant, at least of license, so as fend bimself against its encroachments as best he can,

to bar the claim for damages; but when the same case even if thereby it washes against his neighbor's land,

was again before the court, 12 Me. 183, it was held that the rule has no application to the case at bar. The de

such license cannot be presumed unless some injury to fendant was not protecting himself against the com

the land was caused by the flowing. In Seidensparger mon enemy; he voluntarily introduced the enemy

v. Spear, 17 Me. 123, 128, the decision in Tinkham v. upon his land and allowed it to escape from there to

Arnold seems to have been followed, the court hold. the plaintiff's injury. A claim that no action can be maintained against defendant at the suit of an indivi- ing that there was no presumptive evidence of a grant

“when by law such grant was not necessary and when dual, bat that the remedy is by indictment, held not

the conduct of all concerned was explainable on legal tenable. Whatever rights the Commonwealth may ground without such presumption." But at this time, have in tide waters or the sea shore, it has never attempted, by any legislative acts, to do more than pro- 23 Pick. 141, was delivered, opposed to that in Tink

in Massachusetts, the opinion in Williams v. Nelson, tect navigation by preserving the integrity of the harbor; and if the defendant is liable to indictment, the

*Appearing in 75 Maine Reports.



ham v. Arnold, and holding that the exercise by a mill county should execute the power of sale conferred owner of the right to maintain a dam and flow the upon the trustee. (2) That any statement by “the lands of others for twenty years without damages said trustee" in the deed to be executed by him in paid or claimed was evidence of the right to flow with pursuance of a sale, as to the non-payment of the note, out paying damages and would bar the claim for them. the advertisement, sale, etc., should be prima facie In Nelson v. Butterfield, 21 Me. 220, 227, all these cases evidence of the fact. Held (1), that the death of the were elaborately reviewed, and in some degree recon- grantor did not revoke the power of the sheriff to ciled by adopting precisely the rule given. It has been sell. (2) That when the contingency arose in which repeatedly affirmed. Wood v. Kelley, 30 Me. 47; Un- | the sheriff was authorized to act, he became pro hac derwood v. North Wayne Scythe Co., 41 id. 291; Man-vice the trustee, and such recitals in a deed executed sur v. Blake, 62 id. 38. City of Augusta v. Moulton. | by him were to be received as prima facie evidence. Opinion by Symonds, J.

Citing Gaines v. Allen, 58 Mo. 537; Beatie v. Butler, 21 [Decided June 27, 1883.)

id. 313; MoKnight v. Wimer, 38 id. 133; distinguishing Hunt v. Rousmanier, 8 Wheat. 178. White v. Stephens.


-The general rule is that for a breach of covenant of CONFLICT OF LAW-GUARDIAN'S BOND AND VALID

seisin and warranty, the measure of damages is OF-COLLATERAL SECURITY-SATISFACTION

But where

the purchase-money with interest. BOND.--(1) A bond given in a Probate Court of this

the convenantee has had possession and use of the State, in conformity with a law of another State, by a

premises he can recover no interest for any period guardian in this state of a ward resident here, in order prior to his eviction without proof that he has reto obtain possession of property of his ward located in sponded to his evictor for mesne profits, and then only the other State, is a valid bond, and an action may be for such period as he shall have so responded, which maintained on it for property received in virtue of it.

under our statute of ejectment (R. S. 1879, S 2252), can The requirement of such a bond by the law of the

in no case be longer than five years. Sedgw. on Dam. other State, and obtaining the money under it, con

176, 347; McGary v. Hastings, 39 Cal. 360; S. C., 2 Am. stituted a good and valuable consideration to support Rep. 456; Frazier v. Supervisors, 73 111. 282; Collius v. the undertaking, and an action for its breach. Mer- Thayer, id. 138; Spring v. Chase, 22 Mo. 510; Lawless rick v. Trustees of Bank, 8 Gill (Md.), 61; Hammond

v. Collier, 19 id. 485; Rich v. Johnson, 2 Pin. (Wis.) 88; v. Henssey, 51 N. H. 40; Cook v. Bradley, Conn. 57;

Hartford, etc., Co. v. Miller, 41 Conn. 130; Dickson v. Gathwright v. Callaway Co., 10 Mo. 663; Barnes v.

Desire, 23 Mo. 167; Flint v. Steadman, 36 Vt. 211. Webster, 16 id. 258; Henoch v. Chaney, 61 id. 129.

Hutchins v. Roundtree. Opinion by Philips, Comr. Such a bond as this, given for a lawful purpose, even though not in form is obligatory. United States v.

NEW HAMPSHIRE SUPREME COURT Bradley, 10 Pet. 343. The validity of such a bond is not affected by the fact that it contains a condition not

ABSTRACT. * required by the law of this State. Rings v. Gibbs, 26 Wend. 510; Triplet v. Gray, 7 Yerg. 17 ; Nunn'v. Good

ARBITRATION — WITHDRAWAL OF ARBITRATOR.lett, 5 Eng. 89; Pratt v. Wright, 13 Gratt. (Va.) 175; Under a submission authorizing an award by a maFlint v. Young, 70 Mo. 221. Such a bond is not essen

jority, it is no ground for setting aside an award that tially collateral or auxiliary to the ordinary guardian's

one of the arbitrators withdrew after the hearing was bond; the ward may resort to either, certainly to the concluded, and refused to join in the award. Plumformer when the makers of the latter are insolvent so mer v. Sanders, 55 N. H. 23; Carpenter v. Wood, 1 that resort thereto would be unavailing. Haskell v.

Met. 409; Maynard v. Frederick, 7 Cush. 247; CumFarrar, 56 Mo. 497 ; State ex rel. Riggs v. Colman, 73 id.

berland v. North Yarmouth, 4 Greenl. 459. Dodge v. 684; State ex rel. v. Steele, 21 Ind. 207; Wood v. Will. Brennan. Opinion by Clark, J. iams, 61 Mo. 63; State v. Drury, 36 id. 281. (2) A con

EVIDENCE--IN ACTION FOR FRAUD-OTHER SIMILAR dition in such a bond to “ account for” the money re

TRANSACTIONS.-As tending to impeach a conveyance ceived in the other State is not satisfied by the guardian charging himself therewith in his settlement, nor

on the ground of fraud, it is competent to show that

in other transactions about the same time the grantee by any thing short of payment. State ex cel. Riggs v.

aided and advised the grantors in preventing their Colman, 73 Mo. 684. State of Missouri v. Williams.

creditors from availing themselves of their legal reme. Opinion by Philips, Comr.

dies. Whittier u. Varney, 10 N. H. 291; Lee v. INFANT-NOT LIABLE

Lamprey, 43 id. 13: Pomeroy v. Bailey, id. 118, 125. All the adult heirs at law to a tract of land affected by Adams v. Kenney. Opiniou by Clark, J. a will, united in employing attorneys to prosecute a


GRASS — ATTACHsuit to set the will aside, agreeing that in case of success, as compensation for their services, the attorneys selves, without the labor of man, though improved by

MENT.—(1) Things which proceed annually of themshould receive one-half of the land. Through the exertions of the attorneys the will was set aside. Held, it, are not emblements. (2) Standing grass is not that a minor heir, although benefitted by the result

open to attachment on mesne process or execution. 3 equally with the others, was not bound either at law

Kent. Com. 401; 4 id. 73; Green v. Armstrong, 1 Den. or in equity to contribute to the payment of the fee.

550; Cudworth v. Scott, 41 N. H. 456; Penhallow v. Bickwell v. Bickwell, 111 Mass. 265; Tupper v. Cald-Dwight, 7 Mass. 34; Miller v. Baker, 1 Met. 27. Rogers well, 12 Met. 559; Winsor v. Savage, 9 id. 346. Dillon

v. Elliott. Opinion by Stanley, J. v. Bowles. Opinion by Ray, J.


ESTOPPEL.—(1) Where, in a bill in equity, there has been TEE-RECITAL.-A deed of trust given to secure a note a hearing on the merits, and a decree dismissing it, provided, among other things. (1) that in case of the such decree will not ordinarily be without prejudice. absence, death, etc., of the trustee, the sheriff of the Hollister v. Barkley, 11 N. H. 501, 508; King v. Chase, *To appear in 77 Missouri Reports.

*To appear in 59 New Hampshire Reports.




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