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there is a person in being against whom an action can premises, the mortgagee may pay them, and claim the be brought and the right of action enforced. Held, beuefit of the lien of the mortgage as security for the therefore, that the death of the debtor operates to sus- amount. But his claim must be euforced as a part of pend the statute of limitations until an administrator the mortgage debt, and not by an independent action is appointed. Toby v. Allen, 3 Kans. 399; Hanson v. against the mortagor, as for money paid to his use, or Towle, 19 id. 273. See also Whitney v. State, 52 Miss. under claim of subrogation to the lien of the State or 732; Briggs v. Thomas, 32 Vt. 170; Etter v. Fiun, 12 municipality. Sheldon on Subrogation, $ 9; Jones on Ark. 632. Nelson y. Herkel. Opinion by Horton, C. J. Mortg., $$ 1050, 1184; Johusou v. Payne, 11 Neb. 29;

MALICIOUS PROSECUTION DEFENSE ESTOPPEL- Whittaker v. Wright, 35 Ark. 511; Barthell v. Syrer. QUESTION OF LAW.- (1) Where a party files a complaint son, 54 Iowa, 160; Napton v. Leatou, 71 Mo. 369. Hor. upon which he causes the arrest of another for an rigan v. Wellmuth. Opinion by Hough, C. J. alleged crime, it is no defense to an action for mali. cious prosecution, that the complaiut was technically

MUNICIPAL BONDS--CONFLICT OF DECISION BETWEEN defective; bo long as it was treated by the justice and

STATE AND FEDERAL COURTS.—The fact that counts officer as sufficient, and the defendant was in fact arrested thereon, the party filing it is estopped from

bonds held void by the courts of this State are held questioning its sufficiency. Wicks V. Fentham, 4

valid by the courts of the United States, and therefore

when transferred to a non-resident bolder may be enTerm Rep. 248; Pippet v. Hearn, 1 D. & R. 271; 2 Addison on Torts, $ 881. (2) In an action for malicious

forced against the county, will not authorize the courts prosecution, the question of probable cause is one of

of this State to require a resident holder of such bonds

to deliver them up to be cancelled. “In the case of law for the court. If upon the undisputed facts, there

State Stamper v. Holladay, 72 Mo. 499, this court held was no probable cause, it is the duty of the court to so

tbat bonds thus circumstanced are not nullities in the find, and so instruct the jury. Besson y. Southard,

hands of the holders thereof, and as the holders are 10 N. Y. 240; Stone v. Crocker, 24 Pick. 81; Travis v.

declared by the United States courts to have property Smith, 1 Penn. St. 234; Hill v. Palm, 38 Mo. 13; Wells v. Parsons, 3 Har. (Del.) 505. (3) Where, if all that is be

therein, it is beyond the province of this court to un. lieved or suspected of the defendant be true, he has

dertake to destroy in the hands of citizens of the Uni

ted States that which the courts of the United States committed no crime, there is no probable cause to believe him guilty. (4) A party cannot commit the

declare to be property. This court has exhausted its crime of embezzlement in respect to money which is

jurisdiction in decliving to enforce such bonds as

valid obligations.Dallas County v. Merrill. Opinion legally and absolutely his own, and this notwithstand

Per Curiam. ing he may be at the time in debt, and does not intend to pay his creditors. Parli v. Reed. Opinion by Brewer, J.

DEDICATION_OF STREET TO PUBLIC USE BY ACTS IN STATUTE OF FRAUDS-AGREEMENT NOT TO BE PER- PAISACCEPTANCE-ESTOPPEL.—In a case where, withFORMED IN A YEAR.- Au agreement to pay $650 as out judicial proceeding, or compensation, or solemn soon as it can be earned off from a tract of eigbty form of conveyance, it is sought to establish in pais a acres over and above the amount necessary to divestiture of the citizen's landed property in favor of support the family of the promisor, cannot be pro- the public, the proof ought to be so cogent, persuasive nounced as matter of law reasonably incapable of full and full as to leave no reasonable doubt of the existperformance within a year, when the number in the ence of the owner's intent and consent; and the coupromisor's family is not shown, nor the amount of duct and acts relied on to establish the intent should improvements and conveniences for farming on the be inconsistent aud irreconcilable with any construcpremises, nor the quality of the soil, nor the condi- tion except such consent; nor must there be declaration of the farm other than that at the time about forty tions and acts by the owner inconsistent with the acres were broken, nor the distance from market, nor dedication. Tested by these rules, the evidence in any other fact from which the probable earnings from this case fails to show a dedicatiou. Brinck v. Collier, such a farm can be determined. Larimer v. Kelly, 10 56 Mo. 165; Irwiu v. Dixon, 9 How. 31. To constitute Kans. 298; Stout v. Ennis, 28 id. 706. See also McClel- a dedication of property to public use there must be lan v. Sandford, 26 Wis. 609; Jilson v. Gilbert, id. an acceptance by the public. This may be evidenced 637. Sutphen v. Sutphen. Opinion by Brewer, J. by user for a long period, or by its official recognition

by the constituted authorities. The user should be MISSOURI SUPREME COURT ABSTRACT.*

such as to indicate that the enjoyment by the public

is exclusive and not subordinate or incidental to the CARRIER-LOSS OF MONEY BY-RIGHT OF CONSIGNOR convenience of the owner. It is not always essential TO SUE.-The plaintiff, having sold land as'agent of to the creatiou of an estoppel that the person should owner and received the purchase-money, delivered the be a party to the record. One who instigates and prolatter to an express company for transportation to the motes litigation for his own benefit by employing owner. It was lost in transit. Held, that the plaintiff counsel or binding himself for the costs and damages, could maintain an action for its recovery. He was the will be bound by the litigation or procedure as much “trustee of an express trust,” within the meaning of as the party to the record. Thus, where a city, at the section 3403, Revised Statutes, 1879. Cothay v. Fen- request of certaiu citizens, instituted legal proceedings pell, 10 B. & C. 671; S. C., 21 E. C. L. 146; Story on to condemu land for a street, the citizens agreeing to Agency, SS 160, 270; Ferris v. Shaw, 72 Mo. 446; Blanch- pay all damages that might be assessed, and afterward ard v. Page, 8 Gray, 261; 1 Perry on Trusts, $ 86; the city declined to pay the damages that were asWebb v. Morgan, 14 Mo. 429; Beattie v. Lett, 28 id. sessed, and in lieu thereof passed an ordinance declar. 596; Simmons v. Belt, 35 id. 461; Nicolay y. Fritschle, ing that the land sought to be condemned “be aban40 id. 67; Harney v. Dutcher, 15 id. 89; Rogers v. Gos- doned by the city.” Held, that the citizens who in. nell, 51 id. 460; Bliss Code Plead., $$ 45, 46. Snider v. stituted the proceedings were concluded from assertAdams Express Co. Opinion by Sherwood, J.

ing a prior dedication of the same land for public use MORTGAGE-PAYMENT OF TAXES BY MORTGAGEE.

as a street. Wright v. Town of Butler, 64 Mo. 165; If the mortgagor fail to pay the taxes on the mortgaged

Strong v. Phenix Ins. Co., 62 id. 295; Stoddard v.

Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 18. *To appear in 77 Missouri Reports.

Landis v. Hamilton. Opinion by Phillips, Com.

MAINE SUPREME JUDICIAL COURT are liable to be worn out and deteriorated by use, ABSTRACT.

amounts to the same thing if the life-estate lasts long DECEMBER 28, 1884.*

enough. Not so as to moneys, and bank or other

stocks that may be expected to yield au income withCONTRACT-TO PURCHASE LAND FROM ONE NOT THEN out waste of the principal. But the rule in this State OWNER-CONDITION PRECEDENT-REASONABLE TIME.-- is that the legatee for life of persoval property is enWhere a party in a written contract for sufficient con

titled to the possession, management and control of it sideration promises to pay another a certain sum of after the settlement of the estate, the court having money, when he shall be able to convey by a good and power to require security in proper cases for the presufficient deed premises of which he then had no title,

servation of the principal, when it is of such a characno action can be maintained upon the promise until ter that the principal ought to be preserved. Starr v. the other party has first obtained a title and tendered McEwen, 69 Me. 335; Sampson v. Randall, 72 id. 109; a good and sufficient deed thereof. This is a condition

Warren v. Webb, 68 id. 133; Fox v. Rumery, id. 121; precedent, and to avail it must be performed, when no Stuart v. Walker, 72 id. 145; Green v. Hewitt, 97 Ill. time is named, within a reasonable time. In such a

113; Cooper v. Pogue, 92 Penn. St. 254; Bradly v.Westcase a reasonable time is such time as is necessary con- cott, 13 Vesey, Jr. 445; Giles v. Little, 104 U. S. 291; veniently to do what the contract requires should be Parsons v. Wiuslow, 6 Mass. 169; Dumey v. Schoeffler, done, and a delay of one year not satisfactorily ex

24 Mo. 170. Mansfield v. Mansfield. Opinion by Barplained is an unreasonable time. Saunders v. Curtis.


NEW HAMPSHIRE SUPREME COURT LIQUIDATE DEBT.-The stockholders of a corporation

ABSTRACT. * at a time when the corporate indebtedness was sometbing over four thousand dollars and the assets less DAMAGES-AVERAGING JUDGMENT OF JURORS. - A than two thousand dollars, subscribed an agreement verdict may be sustained, although the damages were promising to pay the treasurer "the sums placed first computed as the average judgment of the jury, if against our names, respectively, for the purpose of afterward they fairly agreed on the amouut. Dodge liquidating the debt against said association,” and all v. Carroll. Opinion by Bingham, J. but one paid their subscriptions and the business of the

EASEMENT-AQUEDUCT RIGHT BY PRESCRIPTIONcorporation was continued for three years. Held,

DISTURBANCE OF.-The form of the cover of a reserthat an action of assumpsit could be maintained on the

voir used in the enjoyment of an aqueduct easement agreement against the delinquent subscriber in the

gained by prescription, is not fixed by the prescripname of the treasurer for the benefit of those who

tion, but may be reasonably changed by the landwere creditors at the time of the subscription.

owner in the improvement of his grounds, no injury Trustees Fryeburg Parsonage Fund v. Ripley, 6 Me.

being done to the aqueduct proprietors. Kittredge v. 442; Amherst Academy v. Cowls, 6 Pick. 427; Collier

Woods, 3 N. H. 503, 505; Conner v. Coffin, 22 id. 538, v. Baptist Education Society, 8 B. Monroe, 68; Troy 541; Needham v. Allison, 24 id. 355, 358; Sawyer v. Academy v. Nelson, 24 Vt 189; Church v. Kendall, 16

Twiss, 26 id. 345; Plumer v. Plumer, 30 id. 558, 568; Am. Law Reg. 546. Haskell v. Oake. Opinion by Bar.

Wadleigh v. Janvrin, 41 id. 503, 514; Brown v. Collins, rows, J.

53 id. 442, 448, 450. There is no presumed grant of a EMINENT DOMAIN-RIGHT OF LESSEE TO SHARE IN right to exercise the easement in an unnecessary and COMPENSATION RECEIVED BY LANDLORD.-The de- unreasonable manner. Washburn Ease. 82. The right fendants were owners of land in Belfast. Plaintiff of the easement owner and the right of the laud-owner was their lessee of a portion thereof under a lease for are not absolute, irrelative, and uncontrolled, but are a term of years. In widening a street, the city took a so limited, each by the other, that there may be a due portion of the land including a part of that leased to and reasonable enjoyment of both Ollcott v. Thompplaintiff. The entire damages for the taking were ac- son. Opinion by Doe, C. J. corded to and collected by defendants, no claim being

TITLE-ASSERTION OF BY FORCE.-If one wrongfully made that a portion of the damages belonged to the

takes the chattel of another from his possession, the lessee. Held, that the plaintiff may recover of the de

latter may retake it, using no more force than is necesfendants, his share of the damages (after deducting

sary for that purpose. State v. Elliot, 11 N. H. 540; his pro ratu share of the expenses incurred by the de

Sterling v. Warden, 51 id.217; S.C.,52 id. 197,203; Blades fendants in prosecuting the claim for damages) in an

v. Higgs, 10 C. B. (N. S.) 713; Mills v. Wooters, 59 Ill. action for money had and received. Ellis v. Welcb, 6

234. Hopkins v. Dickson. Opiuion by Bingham, J. Mass. 246; Parks v. Boston, 15 Pick. 198; Patterson v. Boston, 20 id. 165; Commonwealth v. Great Barring- PAYMENT- APPLICATION OF.-A debtor's applicaton, 6 Mass. 492; Matter of Eleventh Avenue. 81 N. Y. tion of a payment to a particular item of his debt 436, Brown v.Co. Com. 12 Metc. 209. Harris v.Howes. need not be express, but may be inferred from cirOpiniou by Peters, J.

cumstantial evidence of his intention. Caldwell v. WILL-CONSTRUCTION OF-GIFT OF USE-WHEN CON

Wentworth, 14 N. H. 431 ; Carpenter y. Goin, 19 id.

479; Young v. Woodward, 44 id. 250; Bangor B. Corp. VEYS ABSOLUTE ESTATE AND WHEN NOT.-A devise of

v. Whiting, 29 Me. 123; Treadwell v. Moore, 34 id. 112; property personal and real, to the wife of the testator to hold the same so long as she shall remain his widow,

Phillips v. Moses, 65 id. 70; Emery v. Ticbout, 13 Vt. followed by a devise over of the same property to a

15; Rohan v. Hanson, 11 Cush. 44; Richardson v. son and one of the daughters of the testator in unequal

Woodbury, 12 id. 279; Moorehead v. Bavk, 3 Watts &

Serg. 550; Bank v. Moorehead, 5 id. 542; Tayloe v. proportions upon the termination of the estate of the wife therein, gives to the widow an estate for life in

Sandiford, 7 Wheat. 13; Peters V. Anderson, 5 Taunt. such property determinable upon her marriage; and she

596; Waters v. Tompkins, 2 C. M. & R. 723; City D.

Co. v. McLean, L. R., 9 C. P. 692; Chitty v. Naish, ? can convey nothing more by her deed of the realty. A life-estate in personal property the ordinary use of

Dowl. P. C. 511; Brazier v. Bryant, id. 477. Lanton which is its destruction, is of course equivalent to an

v. Rowan. Opinion by Doe, C. J. absolute gift wben the same has been consumed, and EXEMPTION-VENDEE IN FRAUD OF CREDITORS CANthe gift of such life-estate in goods and chattels which NOT CLAIM.-The vendee of chattels sold in fraud of *Appearing in 75 Maine Reports.

*To appear in 59 New Hampshire Reports.


the vendor's creditors cannot set up the vendor's right imparted notice that the amount of the note was to be of exemption from attachment in defense of an action determined by that instrument itself, to which referby the creditors for the recovery of the property. was made. Kellogg v. Frazier, 40 Iowa, 502; Tilton v. Sanborn. Opinion by Allen, J.

Clark v. Hyman, 55 id. 14; Bourne v. Littlefield, 29
Me. 302; Ricketson v. Richardson, 19 Cal. 330; Gill s.

Pinney's Admr., 12 Ohio St. 38; Tousley v. Tousley, IOWA SUPREME COURT 'ABSTRACT.

5 id. 78; Hurd v. Robinson, 11 id. 232; Babcock v. Lisk, DECEMBER 14, 1883.

57 Ill. 3:27; Booth v. Barnum, 9 Conn. 286; Stoughton

v. Pasco, 5 id. 442; S. C., 13 Am. Dec. 72. See also ECCLESIASTICAL LAW-EPISCOPAL CHURCH-SALARY

Michigan Ins. Co. v. Brown, 11 Mich. 266; Webb v.

Stone, 24 N. H. 282. Fetes v. O'Loughlin. Opinion by OF RECTOR CANNOT BE REDUCED BY VESTRY OR

Beck, J. CHURCH.-By the canons of the Episcopal Church in the United States of America, a rector canonically

PARTNERSHIP-INDIVIDUAL DEBT OF PARTNER AND elected and in charge, or an instituted minister, may DEBT DUE FIRM.- A partner has no right to release a not be removed from his parish by the parish or vestry debt due his firm in consideration of the release of his against his will except by the bishop, etc. Held, that

individual indebtedness to the firm debtor. A partwhere plaintiff was elected rector by the vestry of de- per has authority to bind the firm in all matters perfendant, an Episcopal Church incorporated and con- taining to the partnership business. But it is not nected with the Episcopal Church of the United properly partnership business to release indebtedness States, his salary agreed upon could not be reduced by due to it in consideration of the release of indebtedthe vestry or the church. It was not competent for ness due to its debtor from one of its members. The the vestry of the parish, in violation of the canons of precise question arose in McNair v. Platt, 46 IU. 211. the church, to dissolve the pastoral relation, against In that case the court said: “The rule is firmly esthe plaintiff's will. These canons became just as much tablished, and not to be controverted, that where a a part of the contract of employment of plaintiff, as if member of a copartnership is indebted to a person they had been specifically referred to or written out in owing the firm, he cannot apply the indebtedness due full therein. The salary upon which the plaintiff was to the firm for the purpose of cancelling his indebtedemployed constitutes an essential part of the contract. ness, nor can he apply the funds or property of the If the defendant could be permitted to reduce the firm for such purpose without the consent of his coplaintiff's salary without his consent, it could force partner, or at least his subsequent ratification;" cithim to agree to a dissolution of the pastoral relation,

ing Brewster v. Mott, 4 Scam. 378, and Hilliard v. and thus accomplish, indirectly, what they could not Walker, 11 Ill. 644. See also Weed v. Richardson, 2 do directly. The right to the salary stipulated at the Dev. & B. Law, 535; Pierce v. Pass, 1 Port. (Ala.) 232; time the plaintiff accepted the position of rector, is a Caldwell v. Scott, 54 N. H. 413; Todd v. Lorah, 75 valuable property right secured to the plaintiff by Penn. St. 155; Everingham v. Ensworth, 7 Wend. 329; contract. One party to the contract cannot ignore its

Dob v. Halsey, 16 Johns. 34; Viles v. Bangs, 36 Wis. provisions or violate them with impunity. The civil

135. Thomas v. Stetson. Opinion by Adams, J. courts will not revise the decisions of churches or re- PRACTICE-RETURN MUST BE ANNEXED TO ATTACHligious associations upon ecclesiastical matters, but MENT.— Where there is no return indorsed on or anthey will interfere with such associations when rights nexed to a writ of attachment by the officer, the atof property or civil rights are involved. Chase v. tacbment must be discharged. The writ and return Cheney, 58 Ill. 509; O'Hara v. Stack, 90 Penn. St. 477; constitute essentially one record and must go together. Avery v. Inhab. of Tyringham, 3 Mass. 159; Sheldon Dickson r. Peppers, 7 Ired. Law, 429; McCrory v. v. Congregational Parish, 24 Pick. 281; Lynd v. Men- Chaffin, 1 Swan, 307; Union Bank v. Barnes, 10 zies, 33 N. J. Law, 162; Batterson v. Thompson, 8 Humph. 244. Filing the writ with no indorsement of Phila. 251. Bird v. St. Mark's Church of Waterloo. the proceedings is no return, but a return may be Opinion by Day, C. J.

made by leave of court upon payment of costs. Hall HOMESTEAD-WHEN APPROPRIATED FOR RAILROAD v. Ayer, 19 How. Pr. 91; Nelson v. Brown, 23 Mo. 13. MONEY FOR, EXEMPT.--Where a railroad company ap

If the officer fail to make a return the court may propriated a homestead for its right of way, held, that

doubtless direct him to do so. If he refuse, or make the damages paid for such homestead was exempt

a false return, he becomes liable to the party injured. from execution, and that this was so, although a por

Under the statute and adjudications, without a retion of the homestead was not taken. A clear distinc- turn an essential record is wanting, and the court has tion exists between the proceeds of exempt property,

before it no proper evidence upon which it can base exempt from attachment when such property has been any proceedings against specific property or credits. sold by the debtor, and when it has been sold by pro

Rock v. Singmaster. Opinion by Adams, J. ceedings against his will and changed into money. Where such property is converted into a mere right of action by a proceeding wholly in invitum, such right MINNESOTA SUPREME COURT ABSTRACT. of action and the money collected are also exempt from attachment, the same as the property itself. ATTACHMENT

OFFICER Stebbins v. Pealer, 29 Vt. 289; Keyes v. Rines, 37 id.

PROPERTY OF THIRD PERSON-FRAUDULENT CONVEY263; Mitchell v. Milhoan, 11 Kans. 617; Houghton v.

BOND NOT SIGNED BY PRINCIPALLee, 50 Cal. 101; (ooney v. Cooney, 65 Barb. 524. Sub

(1) It is well established that where an officer, in stantially the same rule is held in Tillotson v. Wolcott,

order to justify a seizure of goods under an attach48 N. Y. 188. Kaiser v. Seaton. Opinion by Adams, J.

ment, attacks the plaintiff's title on the ground that MORTGAGE-SUFFICIENCY OF IDENTIFICATION OF it is acquired by a conveyance from the defendant in NOTE IN.-Where a note secured by a mortgage was

the writ, which was fraudulent and void as to creditherein referred to by its date, the name of the maker, tors, he must show not only the indebtedness in favor the day of its maturity, and the rate of interest pro- of the plaintiff in the writ, and the writ itself, but the vided for, and the time it becomes payable, hield, preliminary proeeedings which authorized the issuing that such reference was sufficient to identify the note

of it. Nobles v. Holmes, 5 Hill, 194; Van Etten F. and authorize it to be read in order to determine the Hurst, 6 id. 311; Matthews v. Densmore, 43 Mich. 461; terms of the mortgage. The record of the mortgage Thornburgh v. Hand, 7 Cal. 654; 2 Phil. Ev. Cow. &





Hill's Notes (5th Am. ed.) 366; Braley v. Byrnes, 20 48 Mo. 250; Clark v. Estate of Conree, 38 Vt. 475; Russ Minn. 435. (2) In an action to recover the value of v. Steele, 40 id. 315. Where the incumbrance is an personal property wrongfully takeu from the plaint- unexpired term or lease, the general rule, at least in iff, the defendant may, when, at least, he has acted iu the absence of any special circumstances, is that the good faith, show in mitigation of damages that the measure of damages will be the fair rental value of the property had been, by legal process, in favor of a third land to the expiration of the term. The underlying person, and against the plaintiff, lawfully taken from principle is that the damages should be estimated acthe defeudant and sold, and thus legally applied to cording to the real injury arising from the existence discharge an obligation of the plaintiff. Higgins v. of the incumbrance, which, in the case supposed, is Whitney, 24 Weud. 379; Sherry v. Schuyler, 2 Hill. presumably and ordinarily the value of the use of the 204: Ball v. Liney, 38 N. Y. 6; Irish v. Cloyes, 8 Vt. premises for the time during which the vendee has 30; Curtis v. Ward, 20 Conn. 204; Kaley v. Shed, 10 been deprived of such use. Rawle, Cov. 291, 292; Meto. 317; Howard v. Cooper, 45 N. H. 339; Hopple v. Rickert v. Snyder, 9 Wend. 423; Batchelder v. Sturgis, Higbee, 23 N. J. Law, 342; Colton v. Read, 2 Wis. 458; 3 Cush. 205; Porter v. Bradley, 7 R. I. 542. Fritz v. Bates v. Courtwright, 36 Ill. 518. Or the officer may Pusey. Opinion by Mitchell, J. show in mitigation that the property belonged to [Decided Jan. 10, 1884.] another tban the plaintiff, and that it had been law

SLANDER-EVIDENCE-POPULAR MEANING OF WORD fully taken from him (the defendant) and disposed of,

IN FOREIGN LANGUAGE.-- In an action for slauder, upon legal process against the owner, in favor of one

held, that the popular meaning in which a German who had a right, as against both the owner and the

word was used could be shown, as could also the meanplaintiff, to have the property so appropriated. (Squire

ing of a gesture. When the slanderous words contain v. Hollenback, 9 Pick. 551; Perry v. Chandler, 2 Cush.

a word or phrase in a foreign language, which has, in 337; Hanson v. Herrick, 100 Mass. 323; Stewart v. Martin, 16 Vt. 397. (3) A statute requiring a bond language, a meaning somewhat different from the defi

common parlance among the people who speak that with sureties, is complied with if there are sureties

nition by lexicographers, and commonly understood though there was not a principal obligor. Keene v.

by them in common speech, it is competent to prove Deardon, 8 East. 298; Dixon v. Dixon, 2 Bos. & Pul.

that fact. Townsh. Sland., $ 334; Wachter v. Quenzer, 413; Taylor v. Ricards, 9 Ark.378; Barnett v. Warren,

29 N. Y. 547. This is but an application of the general Circ. Ct. Hardin, 180; Thorn v. Savage, 1 Blackf. 51;

rule that words are to be construed in the sense in People v. Judges Com. Pl., 5 Cow. 34; Chandler v.

which the hearers would naturally understand them. Smith, 14 Mass. 313. Howard v. Manderfield. Opinion

The general rule, doubtless, is that the jury and not by Dickinson, J.

the witness are to determine the meaning and applica[Decided Dec. 29, 1883.)

tion of the words. But where, as is often the case, the COVENANT — AGAINST INCUMBRANCE AND QUIET slanderous charge is not made in direct terms, but ENJOYMENT - BREACH OF — EVICTION — DAMAGES.- by equivocal expressions, insinuations, gestures, or An outstanding contract between the vendor and a even tones of the voice, which often have a potent third person giving the latter the right to cultivate the

meaning incapable of description, it is competent for land sold for a share in the crops during the coming witnesses who heard and saw them to state what they season, is an incumbrance constituting a breach of a understood (by them, and to whom they understood covenant against incumbrances, and the inability of them to be applied. Leonard v. Allen, 11 Cush. 241; the vendee to obtain possession during the season be- Smith v. Miles, 15 Vt. 245; Barton v. Holmes, 16 Iowa, cause of the contract constitutes a breach of a cove- 252; Townsh. Sland., § 384. Blakeman v. Blakeman. nant of quiet enjoyment. An incumbrance, within

Opinion by Mitchell, the meaning of the covenant against incumbrances, [Decided Jan. 14, 1884.] includes any right or interest in the land which may

WARRANTY subsist in third persons to the diminution of the value

ON SALE OF PERSONAL PROPERTY.of the land, but consistent with the passing of the fee

To constitute a warranty in law, neither the word by the conveyance. Rawle, Cov. 94, 95; 2 Greenl. Ev. warranty," nor any equivalent word, is indispensa$ 242; Bouv. Law. Dict. tit. “Incumbrance; " Pres

ble. A clear and positive affirmation or representacott v. Trueman, 4 Mass. 630. Hence an outstanding

tion of the quality of a thing sold, when made by a lease is an incumbrance. Grice v. Scarborough, 2

seller as a part of a contract of sale, and relied upon Spear, 649; Batchelder v. Sturgis, 3 Cush. 201; Porter

by the purchaser, is a warranty. Hawkins v. PemF. Bradley, 7 R. I. 538. It is generally stated that “an

berton, 51 N. Y. 198; Zimmerman v. Marrow, 28 Minn. eviction is necessary to a breach of the covenants for 367 ; Forkelson v. Jurgenson, 28 id. 383; Benj. Sales, quiet enjoyment or of warranty." And no doubt the

$ 929. Warder v. Bowen. Opinion by Berry, J. original and technical meaning attached to the word

[Decided Dec. 28, 1883.] " eviction" was an expulsion by the assertion of a paramount title and by process of law. But the idea

RECENT ENGLISH DECISIONS. that the ouster must be process of law has been long since abandoned. The rule now is that these cove- CARRIER - LIABILITY FOR LOSS BY ISSUE OF TWO nants are broken whenever there has been an involun- ADVICE NOTES FOR SAME CONSIGNMENT-HOLDERS FOR tary loss of possession by reason of the hostile asser- VALUE. — The Great Eastern Railway Company sent tion of an irresistible title. Moreover, the eviction to B. and Co., who were consignees for certain wheat, may be constructive. Constructive eviction is deemed an advice note stating that the wheat had arrived, and to be caused by the inability of the purchaser to was held to B. and Co.'s order. The note contained obtain possession by reason of the paramount title. no entry of weight or charges for carriage, but across . When at the time of the conveyance he finds the the spaces for these was written "account to follow." premises in possession of one claiming under para

At the foot of the note was a delivery form to be mount title, the covenants for quiet possession or of signed by consignees, “ Please deliver to warranty will be held broken without any other act bearer.” B. and Co. indorsed this document, and on the part of either the grantee or the claimant, for

handed it to S. and Co., and the railway company the latter can do no more toward the assertion of his agreed to hold the wheat to the order of S. and Co. title, and as to the former the law will compel no one to Afterward B. and Co. obtained an advance from the commit a trespass in order to establish a lawful right plaintiffs upon the security of a delivery order for the in another action. Rawle, Cov. 154; Murphy v. Price, wheat signed by S. and Co. The plaintiffs lodged this


order with the railway company, who accepted it. lawyer who makes a specialty of collecting criminal Subsequently to this the railway company sent trials. Every reference in Burrill clearly indicates that another advice note to B. and Co., which differed the pamphlet is simply a narrative of the facts or from the first in some particulars, and across the top report of the evidence in this murder trial. of which was written “charges only," but which was It is therefore at par with ephemeral publications upon the same printed form as the first. The two which in their time were hawked or sold in the street advice notes in reality related to the same consignment as reports of the trials of Walworth, McFarland, of wheat. B. and Co. obtained a second advance from Stokes, Monroe Edwards and Rozenweig. the plaintiff's upon the security of the second advice A pamphleteer of the day, would entitle it “ Sinful note by fraudulently representing that it related to Desires; an Account of the wicked Career of a Clergyanother consignment of wheat. B. and Co. thereupon man." If the law of the land is only to be ascertained sigued the delivery form on the second note, and from such sources, perhaps it would be as well that the filled in the plaintiffs' names, and handed it to them, law be permitted to remain unrevealed. and they lodged it with the railway company, who The question of evidence in the Caravan case was no accepted this order also. In an action by the plaint-doubt the same as in the Spooner case cited by Buriffs against the railway company for the amount lost rill from Chandler's Trials. Both references are made by them on the second advance to B. and Co., held, by by Burrill in the same connection, and this is there the Court of Appeals (affirming the judgment of Pol-fore a reasonable presumption. Even were these relock, B.), that the railway company having cords of evidence valuable for coart purposes, they guilty of culpable negligence, and such negligence hav- would still be superfluous, as the books are full of auiug been the proximate cause of the plaintiffs' loss, thorities regarding the admissibility in like cases of the defendants were estopped from alleging that the the defendant's declaration of intent and threats. two advice notes related to the same consignment Witsess, Wharton, Bishop, Greenleaf, Archbold, Benof wheat; and that the plaintiffs were therefore en- nett and Heard, Horrigan and Thompson, Starkie, titled to recover. Held, also, that although the advice | Hawley, Taylor, Russell, Hume, Roscoe, Robinson, notes were not negotiable instruments, yet from the etc. form in which they were drawn, and the mode in These authorities are equally complete in elucidawhich the defendants dealt with them, they could not tion of the following and kindred topics, as to whether be takeu to be in the nature of mere invoices of the the expressions of mental and bodily feelings are hear. goods. Court of Appeals, June 18, 1883. Coventry v. say- the admissibility of the declarations of a party Great Eastern R. Co. Opinions by Brett, M. R., and whenever the condition of his mind is at issue and the Lindley and Fry, L. JJ. (49 L. T. Rep. (N. 8.] 641.) declarations tend to throw light upon such condition

the expediency of admitting evidence which goes to

show the state of feelings of the parties toward each CORRESPONDENCE.

other at the time of the act committed-the relerancy

of all facts which tend to prove a real motive of the WHAT IS A “MORGEN"?

defendant in killing the deceased, whether such eri. Editor of the Albany Law Journal :

dence be offered by the prosecution or the defenseMany deeds of Mohawk Valley lands, dated prior to threats by the deceased when the evidence is farorthe revolution, give quantities in morgens. The mod- able to the slayer - defendant's declarations and ern German morgen varies in quantity from a half threats and of declarations generally and the circumacre to one and a half acres. Can some reader of the stances under which they are admissible as evidence JOURNAL tell me how many acres a Mobawk Valley in trials for murder. morgen contained ?

The hindrances to the free exercise of will and deterI bave an impression that the problem is solved mination,constraint of personal action by force or fear, in one of the early State reports, but cannot find the the various kinds of duress and as to what constitutes

duress at law, the application of the rule of duress B.

per minas, the legal limitations of fear in actions, civil

and criminal may be found exhaustively, lucidly and AUTHORITIES ON DURESS.

most skillfully discussed by many of the most noted

American and English law writers in the following Editor of the Albany Law Journal:

references, which are taken from the annotated cataMy attention has been called to the communication logue of the New York Law Institute Library of 1884, in your last issue of Judge Guepp of this city. There and which I trust you can spare the space to print, as must be some mistake in the matter if the Institute they may be of interest and use to the profession: library be the ove referred to in the letter. A copy What is and what is not duress—who may take adof Chandler's American Criminal Trials has been the vantage of duress-effect of duress. A. C. Freeman property of the Law Institute for nearly forty years. Note of Cases, 26 Am. Dec. (1881) 374-378.

The reference in Burrill to Chambers' Trials, is to What constitutes compulsory payment-compalsion the expression of a threat against the deceased by one must be illegal, unjust or oppressive-must exist of the parties indicted.

when-must proceed from the party receiving pagThe Carawan case is a pamphlet copy of the evidence ment-must consist of actual or threatened exercise in a murder trial, which took place over thirty years of power over person or property-compulsion of legal ago in an inferior court of North Carolina. As the process--commencement of suit or threat thereof, not court exercises appellate jurisdiction only over the compulsion-duress of actual or threatened imprisondecisions of its own clerks and justices of the peace, it ment-menaces-duress of goods-duress of realtyis not surprising that as yet no reports of its decisions duress as to third person-necessity, sufficiency and are in print.

utility of process-recovery of illegal taxes paid under Chandler's Criminal Trials was prepared for popular compulsion-as to money paid for redemption of laud, reading. It is an abridged narratire of trials divested eto.-license fees-illegal fees exacted colore officiiof the technicalities of legal proceedings. Its use in illegal distress — money wrongfully demanded 28 court would be as novel as that of a copy of Spioer's rent-excessive freight exacted by carriers-other esJudicial Dramas, Cowley's Famous Divorces, or amples of involuntary payments. A. C. Freeman, Burke's Romance of the Forum. The Carawan pam- Note of Cases, 45 Am. Dec. (1883) 153-171. phlet may be found very likely in the library of every Civil duress and undue influence. 1 Ky. Law Ree


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