ESTOPPEL

there is a person in being against whom an action can be brought and the right of action enforced. Held, therefore, that the death of the debtor operates to suspend the statute of limitations until an administrator is appointed. Toby v. Allen, 3 Kans. 399; Hanson v. Towle, 19 id. 273. See also Whitney v. State, 52 Miss. 732; Briggs v. Thomas, 32 Vt. 170; Etter v. Fiun, 12 Ark. 632. Nelson v. Herkel. Opinion by Horton, C. J. MALICIOUS PROSECUTION DEFENSE QUESTION OF LAW.-(1) Where a party files a complaint upon which he causes the arrest of another for an alleged crime, it is no defense to an action for malicious prosecution, that the complaint was technically defective; so long as it was treated by the justice and officer as sufficient, and the defendant was in fact arrested thereon, the party filing it is estopped from questioning its sufficiency. Wicks v. Fentham, 4 Term Rep. 248; Pippet v. Hearn, 1 D. & R. 271; 2 Addison on Torts, § 881. (2) In an action for malicious prosecution, the question of probable cause is one of law for the court. If upon the undisputed facts, there was no probable cause, it is the duty of the court to so find, and so instruct the jury. Besson v. Southard, 10 N. Y. 240; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Penn. St. 234; Hill v. Palm, 38 Mo. 13; Wells v. Parsons, 3 Har. (Del.) 505. (3) Where, if all that is believed or suspected of the defendant be true, he has committed no crime, there is no probable cause to believe him guilty. (4) A party cannot commit the crime of embezzlement in respect to money which is legally and absolutely his own, and this notwithstanding he may be at the time in debt, and does not intend to pay his creditors. Parli v. Reed. Opinion by Brewer, J.

to

STATUTE OF FRAUDS-AGREEMENT NOT TO BE PERFORMED IN A YEAR. An agreement to pay $650 as soon as it can be earned off from a tract of eighty acres over and above the amount necessary support the family of the promisor, cannot be pronounced as matter of law reasonably incapable of full performance within a year, when the number in the promisor's family is not shown, nor the amount of improvements and conveniences for farming on the premises, nor the quality of the soil, nor the condition of the farm other than that at the time about forty acres were broken, nor the distance from market, nor any other fact from which the probable earnings from such a farm can be determined. Larimer v. Kelly, 10 Kans. 298; Stout v. Ennis, 28 id. 706. See also McClellan v. Sandford, 26 Wis. 609; Jilson v. Gilbert, id. 637. Sutphen v. Sutphen. Opinion by Brewer, J.

MISSOURI

SUPREME COURT ABSTRACT.* CARRIER-LOSS OF MONEY BY-RIGHT OF CONSIGNOR TO SUE. The plaintiff, having sold land as agent of the owner and received the purchase-money, delivered the latter to an express company for transportation to the owner. It was lost in transit. Held, that the plaintiff could maintain an action for its recovery. He was the "trustee of an express trust," within the meaning of section 3403, Revised Statutes, 1879. Cothay v. Fennell, 10 B. & C. 671; S. C., 21 E. C. L. 146; Story on Agency, $$ 160, 270; Ferris v. Shaw, 72 Mo. 446; Blanchard v. Page, 8 Gray, 261; 1 Perry on Trusts, § 86; Webb v. Morgan, 14 Mo. 429; Beattie v. Lett, 28 id. 596; Simmons v. Belt, 35 id. 461; Nicolay v. Fritschle, 40 id. 67; Harney v. Dutcher, 15 id. 89; Rogers v. Gosnell, 51 id. 466; Bliss Code Plead., §§ 45, 46. Snider v. Adams Express Co. Opinion by Sherwood, J.

MORTGAGE PAYMENT OF TAXES BY MORTGAGEE.— If the mortgagor fail to pay the taxes on the mortgaged *To appear in 77 Missouri Reports.

premises, the mortgagee may pay them, and claim the benefit of the lien of the mortgage as security for the amount. But his claim must be euforced as a part of the mortgage debt, and not by an independent action against the mortagor, as for money paid to his use, or under claim of subrogation to the lien of the State or municipality. Sheldon on Subrogation, § 9; Jones on Mortg., $$ 1030, 1184; Johuson v. Payne, 11 Neb. 269; Whittaker v. Wright, 35 Ark. 511; Barthell v. Syverson, 54 Iowa, 160; Napton v. Leaton, 71 Mo. 369. Horrigan v. Wellmuth. Opinion by Hough, C. J.

MUNICIPAL BONDS--CONFLICT OF DECISION BETWEEN STATE AND FEDERAL COURTS.-The fact that county bonds held void by the courts of this State are held valid by the courts of the United States, and therefore when transferred to a non-resident holder may be enforced against the county, will not authorize the courts of this State to require a resident holder of such bonds to deliver them up to be cancelled. "In the case of State Stamper v. Holladay, 72 Mo. 499, this court held that bonds thus circumstanced are not nullities in the hands of the holders thereof, and as the holders are declared by the United States courts to have property therein, it is beyond the province of this court to undertake to destroy in the hands of citizens of the United States that which the courts of the United States declare to be property. This court has exhausted its jurisdiction in declining to enforce such bonds as valid obligations." Dallas County v. Merrill. Opinion Per Curiam.

DEDICATION-OF STREET TO PUBLIC USE BY ACTS IN PAIS-ACCEPTANCE ESTOPPEL.-In a case where, without judicial proceeding, or compensation, or solemn form of conveyance, it is sought to establish in pais a divestiture of the citizen's landed property in favor of the public, the proof ought to be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner's intent and consent; and the couduct and acts relied on to establish the intent should be inconsistent and irreconcilable with any construction except such consent; nor must there be declarations and acts by the owner inconsistent with the dedication. Tested by these rules, the evidence in this case fails to show a dedication. Brinck v. Collier, 56 Mo. 165; Irwin v. Dixon, 9 How. 31. To constitute a dedication of property to public use there must be an acceptance by the public. This may be evidenced by user for a long period, or by its official recognition by the constituted authorities. The user should be such as to indicate that the enjoyment by the public is exclusive and not subordinate or incidental to the convenience of the owner. It is not always essential to the creation of an estoppel that the person should be a party to the record. One who instigates and promotes litigation for his own benefit by employing counsel or binding himself for the costs and damages, will be bound by the litigation or procedure as much as the party to the record. Thus, where a city, at the request of certain citizens, instituted legal proceedings to condemn land for a street, the citizens agreeing to pay all damages that might be assessed, and afterward the city declined to pay the damages that were assessed, and in lieu thereof passed an ordinance declaring that the land sought to be condemned "be abandoned by the city." Held, that the citizens who instituted the proceedings were concluded from asserting a prior dedication of the same land for public use as a street. Wright v. Town of Butler, 64 Mo. 165; Strong v. Phoenix Ins. Co., 62 id. 295; Stoddard v. Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 18. Landis v. Hamilton. Opinion by Phillips, Com.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.

DECEMBER 28, 1884.*

CONTRACT-TO PURCHASE LAND FROM ONE NOT THEN OWNER-CONDITION PRECEDENT-REASONABLE TIME.-

Where a party in a written contract for sufficient consideration promises to pay another a certain sum of money, when he shall be able to convey by a good and sufficient deed premises of which he then had no title, no action can be maintained upon the promise until the other party has first obtained a title and tendered a good and sufficient deed thereof. This is a condition precedent, and to avail it must be performed, when no time is named, within a reasonable time. In such a case a reasonable time is such time as is necessary conveniently to do what the contract requires should be done, and a delay of one year not satisfactorily explained is an unreasonable time. Saunders v. Curtis. Opinion by Danforth, J.

CORPORATION-AGREEMENT BY STOCKHOLDERS TO LIQUIDATE DEBT. -The stockholders of a corporation at a time when the corporate indebtedness was something over four thousand dollars and the assets less than two thousand dollars, subscribed an agreement promising to pay the treasurer "the sums placed against our names, respectively, for the purpose of liquidating the debt against said association," and all but one paid their subscriptions and the business of the corporation was continued for three years. Held, that an action of assumpsit could be maintained on the agreement against the delinquent subscriber in the name of the treasurer for the benefit of those who were creditors at the time of the subscription. Trustees Fryeburg Parsonage Fund v. Ripley, 6 Me. 442; Amherst Academy v. Cowls, 6 Pick. 427; Collier v. Baptist Education Society, 8 B. Monroe, 68; Troy Academy v. Nelson, 24 Vt 189; Church v. Kendall, 16 Am. Law Reg. 546. Haskell v. Oake. Opinion by Barrows, J.

EMINENT DOMAIN-RIGHT OF LESSEE TO SHARE IN COMPENSATION RECEIVED BY LANDLORD.-The defendants were owners of land in Belfast. Plaintiff was their lessee of a portion thereof under a lease for a term of years. In widening a street, the city took a portion of the land including a part of that leased to plaintiff. The entire damages for the taking were accorded to and collected by defendants, no claim being made that a portion of the damages belonged to the lessee. Held, that the plaintiff may recover of the defendants, his share of the damages (after deducting his pro rata share of the expenses incurred by the defendants in prosecuting the claim for damages) in an action for money had and received. Ellis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. 198; Patterson v. Boston, 20 id. 165; Commonwealth v. Great Barrington, 6 Mass. 492; Matter of Eleventh Avenue. 81 N. Y. 436, Brown v. Co. Com. 12 Metc. 209. Harris v.Howes. Opinion by Peters, J.

WILL-CONSTRUCTION OF GIFT OF USE-WHEN CONVEYS ABSOLUTE ESTATE AND WHEN NOT.-A devise of property personal and real, to the wife of the testator to hold the same so long as she shall remain his widow, followed by a devise over of the same property to a

are liable to be worn out and deteriorated by use, amounts to the same thing if the life-estate lasts long enough. Not so as to moneys, and bank or other stocks that may be expected to yield an income without waste of the principal. But the rule in this State is that the legatee for life of personal property is entitled to the possession, management and control of it after the settlement of the estate, the court having power to require security in proper cases for the preservation of the principal, when it is of such a character that the principal ought to be preserved. Starr v. McEwen, 69 Me. 335; Sampson v. Randall, 72 id. 109; Warren v. Webb, 68 id. 133; Fox v. Rumery, id. 121; Stuart v. Walker, 72 id. 145; Green v. Hewitt, 97 Ill. 113; Cooper v. Pogue, 92 Penn. St. 254; Bradly v. Westcott, 13 Vesey, Jr. 445; Giles v. Little, 104 U. S. 291; Parsons v. Winslow, 6 Mass. 169; Dumey v. Schoeffler, 24 Mo. 170. Mansfield v. Mansfield. Opinion by Barrows, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

DAMAGES-AVERAGING JUDGMENT OF JURORS.—A verdict may be sustained, although the damages were first computed as the average judgment of the jury, if afterward they fairly agreed on the amount. Dodge v. Carroll. Opinion by Bingham, J.

EASEMENT-AQUEDUCT RIGHT BY PRESCRIPTIONDISTURBANCE OF.-The form of the cover of a reservoir used in the enjoyment of an aqueduct easement gained by prescription, is not fixed by the prescription, but may be reasonably changed by the landowner in the improvement of his grounds, no injury being done to the aqueduct proprietors. Kittredge v. Woods, 3 N. H. 503, 505; Conner v. Coffin, 22 id. 538, 541; Needham v. Allison, 24 id. 355, 358; Sawyer v. Twiss, 26 id. 345; Plumer v. Plumer, 30 id. 558, 568; Wadleigh v. Janvrin, 41 id. 503, 514; Brown v. Collins, 53 id. 442, 448, 450. There is no presumed grant of a right to exercise the easement in an unnecessary and unreasonable manner. Washburn Ease. 82. The right of the easement owner and the right of the land-owner are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both Ollcott v. Thompson. Opinion by Doe, C. J.

TITLE-ASSERTION OF BY FORCE.-If one wrongfully takes the chattel of another from his possession, the latter may retake it, using no more force than is necessary for that purpose. State v. Elliot, 11 N. H. 540; Sterling v. Warden, 51 id.217; S.C.,52 id. 197,203; Blades v. Higgs, 10 C. B. (N. S.) 713; Mills v. Wooters, 59 Ill. 234. Hopkins v. Dickson. Opinion by Bingham, J.

PAYMENT APPLICATION OF.-A debtor's application of a payment to a particular item of his debt need not be express, but may be inferred from circumstantial evidence of his intention. Caldwell v. Wentworth, 14 N. H. 431; Carpenter v. Goin, 19 id. 479; Young v. Woodward, 44 id. 250; Bangor B. Corp. v. Whiting, 29 Me. 123; Treadwell v. Moore, 34 id. 112; Phillips v. Moses, 65 id. 70; Emery v. Tichout, 13 Vt. 15; Rohan v. Hanson, 11 Cush. 44; Richardson v. Woodbury, 12 id. 279; Moorehead v. Bank, 3 Watts &

proportions upon the termination of the estate of the wife therein, gives to the widow an estate for life in such property determinable upon her marriage; and she can convey nothing more by her deed of the realty. A life-estate in personal property the ordinary use of which is its destruction, is of course equivalent to an absolute gift when the same has been consumed, and the gift of such life-estate in goods and chattels which *Appearing in 75 Maine Reports.

Sandiford, 7 Wheat. 13; Peters v. Anderson, 5 Taunt. 596; Waters v. Tompkins, 2 C. M. & R. 723; City D. Co. v. McLean, L. R., 9 C. P. 692; Chitty v. Naish, 2 Dowl. P. C. 511; Brazier v. Bryant, id. 477. Lanton v. Rowan. Opinion by Doe, C. J.

EXEMPTION-VENDEE IN FRAUD OF CREDITORS CANNOT CLAIM.-The vendee of chattels sold in fraud of *To appear in 59 New Hampshire Reports.

the vendor's creditors cannot set up the vendor's right of exemption from attachment in defense of an action by the creditors for the recovery of the property. Tilton v. Sanborn. Opinion by Allen, J.

IOWA SUPREME COURT ABSTRACT. DECEMBER 14, 1883.

ECCLESIASTICAL LAW-EPISCOPAL CHURCH-SALARY OF RECTOR CANNOT BE REDUCED BY VESTRY OR CHURCH.-By the canons of the Episcopal Church in the United States of America, a rector canonically elected and in charge, or an instituted minister, may not be removed from his parish by the parish or vestry against his will except by the bishop, etc. Held, that where plaintiff was elected rector by the vestry of defendant, an Episcopal Church incorporated and connected with the Episcopal Church of the United States, his salary agreed upon could not be reduced by the vestry or the church. It was not competent for the vestry of the parish, in violation of the canons of the church, to dissolve the pastoral relation, against the plaintiff's will. These canons became just as much a part of the contract of employment of plaintiff, as if they had been specifically referred to or written out in full therein. The salary upon which the plaintiff was employed constitutes an essential part of the contract. If the defendant could be permitted to reduce the plaintiff's salary without his consent, it could force him to agree to a dissolution of the pastoral relation, and thus accomplish, indirectly, what they could not do directly. The right to the salary stipulated at the time the plaintiff accepted the position of rector, is a valuable property right secured to the plaintiff by contract. One party to the contract cannot ignore its provisions or violate them with impunity. The civil courts will not revise the decisions of churches or religious associations upon ecclesiastical matters, but they will interfere with such associations when rights of property or civil rights are involved. Chase v. Cheney, 58 Ill. 509; O'Hara v. Stack, 90 Penn. St. 477; Avery v. Inhab. of Tyringham, 3 Mass. 159; Sheldon v. Congregational Parish, 24 Pick. 281; Lynd v. Menzies, 33 N. J. Law, 162; Batterson v. Thompson, 8 Phila. 251. Bird v. St. Mark's Church of Waterloo. Opinion by Day, C. J.

HOMESTEAD-WHEN APPROPRIATED FOR RAILROAD MONEY FOR, EXEMPT.-Where a railroad company appropriated a homestead for its right of way, held, that the damages paid for such homestead was exempt from execution, and that this was so, although a portion of the homestead was not taken. A clear distinction exists between the proceeds of exempt property, exempt from attachment when such property has been sold by the debtor, and when it has been sold by proceedings 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 of action and the money collected are also exempt from attachment, the same as the property itself. Stebbins v. Pealer, 29 Vt. 289; Keyes v. Rines, 37 id. 263; Mitchell v. Milhoan, 11 Kans. 617; Houghton v. Lee, 50 Cal. 101; Cooney v. Cooney, 65 Barb. 524. Substantially the same rule is held in Tillotson v. Wolcott, 48 N. Y. 188. Kaiser v. Seaton. Opinion by Adams, J. MORTGAGE-SUFFICIENCY OF IDENTIFICATION NOTE IN. Where a note secured by a mortgage was therein referred to by its date, the name of the maker, the day of its maturity, and the rate of interest provided for, and the time it becomes payable, held, that such reference was sufficient to identify the note and authorize it to be read in order to determine the terms of the mortgage. The record of the mortgage

OF

imparted notice that the amount of the note was to be determined by that instrument itself, to which reference was made. Kellogg v. Frazier, 40 Iowa, 502; Clark v. Hyman, 55 id. 14; Bourne v. Littlefield, 29 Me. 302; Ricketson v. Richardson, 19 Cal. 330; Gill v. Pinney's Admr., 12 Ohio St. 38; Tousley v. Tousley, 5 id. 78; Hurd v. Robinson, 11 id. 232; Babcock v. Lisk, 57 Ill. 327; Booth v. Barnum, 9 Conn. 286; Stoughton v. Pasco, 5 id. 442; S. C., 13 Am. Dec. 72. See also Michigan Ins. Co. v. Brown, 11 Mich. 266; Webb v. Stone, 24 N. H. 282. Fetes v. O'Loughlin. Opinion by Beck, J.

PARTNERSHIP-INDIVIDUAL DEBT OF PARTNER AND DEBT DUE FIRM.-A partner has no right to release a debt due his firm in consideration of the release of his individual indebtedness to the firm debtor. A partner has authority to bind the firm in all matters pertaining to the partnership business. But it is not properly partnership business to release indebtedness due to it in consideration of the release of indebtedness due to its debtor from one of its members. The precise question arose in McNair v. Platt, 46 Ill. 211. In that case the court said: "The rule is firmly es tablished, and not to be controverted, that where a member of a copartnership is indebted to a person owing the firm, he cannot apply the indebtedness due to the firm for the purpose of cancelling his indebtedness, nor can he apply the funds or property of the firm for such purpose without the consent of his copartner, or at least his subsequent ratification;" citing Brewster v. Mott, 4 Scam. 378, and Hilliard v. Walker, 11 Ill. 644. See also Weed v. Richardson, 2 Dev. & B. Law, 535; Pierce v. Pass, 1 Port. (Ala.) 232; Caldwell v. Scott, 54 N. H. 413; Todd v. Lorah, 75 Penn. St. 155; Everingham v. Ensworth, 7 Wend. 329; Dob v. Halsey, 16 Johns. 34; Viles v. Bangs, 36 Wis. 135. Thomas v. Stetson. Opinion by Adams, J.

PRACTICE-RETURN MUST BE ANNEXED TO ATTACHMENT. Where there is no return indorsed on or annexed to a writ of attachment by the officer, the attachment must be discharged. The writ and return constitute essentially one record and must go together. Dickson v. Peppers, 7 Ired. Law, 429; McCrory v. Chaffin, 1 Swan, 307; Union Bank v. Barnes, 10 Humph. 244. Filing the writ with no indorsement of the proceedings is no return, but a return may be made by leave of court upon payment of costs. Hall v. Ayer, 19 How. Pr. 91; Nelson v. Brown, 23 Mo. 13. If the officer fail to make a return the court may doubtless direct him to do so. If he refuse, or make

a false return, he becomes liable to the party injured. Under the statute and adjudications, without a return an essential record is wanting, and the court has before it no proper evidence upon which it can base any proceedings against specific property or credits. Rock v. Singmaster. Opinion by Adams, J.

MINNESOTA SUPREME COURT ABSTRACT.

SEIZING

ATTACHMENT -LIABILITY OF OFFICER PROPERTY OF THIRD PERSON-FRAUDULENT CONVEYANCE- - SURETY BOND NOT SIGNED BY PRINCIPAL(1) It is well established that where an officer, in order to justify a seizure of goods under an attachment, attacks the plaintiff's title on the ground that it is acquired by a conveyance from the defendant in the writ, which was fraudulent and void as to creditors, he must show not only the indebtedness in favor of the plaintiff in the writ, and the writ itself, but the preliminary proceedings which authorized the issuing of it. Nobles v. Holmes, 5 Hill, 194; Van Etten v. Hurst, 6 id. 311; Matthews v. Densmore, 43 Mich. 461; Thornburgh v. Hand, 7 Cal. 554; 2 Phil. Ev. Cow. &

Hill's Notes (5th Am. ed.) 366; Braley v. Byrnes, 20 Minu. 435. (2) In an action to recover the value of personal property wrongfully taken from the plaintiff, the defendant may, when, at least, he has acted in good faith, show in mitigation of damages that the property had been, by legal process, in favor of a third person, and against the plaintiff, lawfully taken from the defendant and sold, and thus legally applied to discharge an obligation of the plaintiff. Higgins v. Whitney, 24 Wend. 379; Sherry v. Schuyler, 2 Hill. 204: Ball v. Liney, 38 N. Y. 6; Irish v. Cloyes, 8 Vt. 30; Curtis v. Ward, 20 Conn. 204; Kaley v. Shed, 10 Metc. 317; Howard v. Cooper, 45 N. H. 339; Hopple v. Higbee, 23 N. J. Law, 342; Colton v. Read, 2 Wis. 458; Bates v. Courtwright, 36 Ill. 518. Or the officer may show in mitigation that the property belonged to another than the plaintiff, and that it had been lawfully taken from him (the defendant) and disposed of, upon legal process against the owner, in favor of one who had a right, as against both the owner and the plaintiff, to have the property so appropriated. (Squire v. Hollenback, 9 Pick. 551; Perry v. Chandler, 2 Cush. 237; Hanson v. Herrick, 100 Mass. 323; Stewart v. Martin, 16 Vt. 397. (3) A statute requiring a bond with sureties, is complied with if there are sureties though there was not a principal obligor. Keene v. Deardon, 8 East. 298; Dixon v. Dixon, 2 Bos. & Pul. 443; Taylor v. Ricards, 9 Ark.378; Barnett v. Warren, Circ. Ct. Hardin, 180; Thorn v. Savage, 1 Blackf. 51; People v. Judges Com. Pl., 5 Cow. 34; Chandler v. Smith, 14 Mass. 313. Howard v. Manderfield. Opinion by Dickinson, J.

[Decided Dec. 29, 1883.]

COVENANT AGAINST INCUMBRANCE AND QUIET ENJOYMENT — BREACH OF― EVICTION — DAMAGES.— An outstanding contract between the vendor and a third person giving the latter the right to cultivate the land sold for a share in the crops during the coming season, is an incumbrance constituting a breach of a covenant against incumbrances, and the inability of the vendee to obtain possession during the season because of the contract constitutes a breach of a covenant of quiet enjoyment. An incumbrance, within the meaning of the covenant against incumbrances, includes any right or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. Rawle, Cov. 94, 95; 2 Greenl. Ev. $242; Bouv. Law. Dict. tit. "Incumbrance; " Prescott v. Trueman, 4 Mass. 630. Hence an outstanding lease is an incumbrance. Grice v. Scarborough, 2 Spear, 649; Batchelder v. Sturgis, 3 Cush. 201; Porter v. Bradley, 7 R. I. 538. It is generally stated that "an eviction is necessary to a breach of the covenants for quiet enjoyment or of warranty." And no doubt the original and technical meaning attached to the word " eviction" was an expulsion by the assertion of a paramount title and by process of law. But the idea that the ouster must be process of law has been long since abandoned. The rule now is that these covenants are broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible title. Moreover, the eviction may be constructive. Constructive eviction is deemed to be caused by the inability of the purchaser to obtain possession by reason of the paramount title. When at the time of the conveyance he finds the premises in possession of one claiming under paramount title, the covenants for quiet possession or of warranty will be held broken without any other act on the part of either the grantee or the claimant, for the latter can do no more toward the assertion of his title, and as to the former the law will compel no one to commit a trespass in order to establish a lawful right in another action. Rawle, Cov. 154; Murphy v. Price,

48 Mo. 250; Clark v. Estate of Conree, 38 Vt. 475; Russ v. Steele, 40 id. 315. Where the incumbrance is an unexpired term or lease, the general rule, at least in the absence of any special circumstances, is that the measure of damages will be the fair rental value of the land to the expiration of the term. The underlying principle is that the damages should be estimated according to the real injury arising from the existence of the incumbrance, which, in the case supposed, is presumably and ordinarily the value of the use of the premises for the time during which the vendee has been deprived of such use. Rawle, Cov. 291, 292; Rickert v. Snyder, 9 Wend. 423; Batchelder v. Sturgis, 3 Cush. 205; Porter v. Bradley, 7 R. I. 542. Fritz v. Pusey. Opinion by Mitchell, J.

[Decided Jan. 10, 1884.]

SLANDER-EVIDENCE-POPULAR MEANING OF WORD IN FOREIGN LANGUAGE.- In an action for slander, held, that the popular meaning in which a German word was used could be shown, as could also the meaning of a gesture. When the slanderous words contain a word or phrase in a foreign language, which has, in common parlance among the people who speak that language, a meaning somewhat different from the definition by lexicographers, and commonly understood by them in common speech, it is competent to prove that fact. Townsh. Sland., § 334; Wachter v. Quenzer, 29 N. Y. 547. This is but an application of the general rule that words are to be construed in the sense in which the hearers would naturally understand them. The general rule, doubtless, is that the jury and not the witness are to determine the meaning and application of the words. But where, as is often the case, the slanderous charge is not made in direct terms, but by equivocal expressions, insinuations, gestures, or even tones of the voice, which often have a potent meaning incapable of description, it is competent for witnesses who heard and saw them to state what they understood [by them, and to whom they understood them to be applied. Leonard v. Allen, 11 Cush. 241; Smith v. Miles, 15 Vt. 245; Barton v. Holmes, 16 Iowa, 252; Townsh. Sland., § 384. Blakeman v. Blakeman. Opinion by Mitchell, J.

[Decided Jan. 14, 1884.]

66

WARRANTY ON SALE OF PERSONAL PROPERTY.To constitute a warranty in law, neither the word warranty," nor any equivalent word, is indispensable. A clear and positive affirmation or representation of the quality of a thing sold, when made by a seller as a part of a contract of sale, and relied upon by the purchaser, is a warranty. Hawkins v. Pemberton, 51 N. Y. 198; Zimmerman v. Marrow, 28 Minn. 367; Forkelson v. Jurgenson, 28 id. 383; Benj. Sales, § 929. Warder v. Bowen. Opinion by Berry, J. [Decided Dec. 28, 1883.]

RECENT ENGLISH DECISIONS.

CARRIER LIABILITY FOR LOSS BY ISSUE OF TWO ADVICE NOTES FOR SAME CONSIGNMENT-HOLDERS FOR

VALUE. The Great Eastern Railway Company sent to B. and Co., who were consignees for certain wheat, an advice note stating that the wheat had arrived, and was held to B. and Co.'s order. The note contained no entry of weight or charges for carriage, but across the spaces for these was written "account to follow." At the foot of the note was a delivery form to be signed by consignees, "Please deliver to

or

bearer." B. and Co. indorsed this document, and handed it to S. and Co., and the railway company agreed to hold the wheat to the order of S. and Co. Afterward B. and Co. obtained an advance from the plaintiffs upon the security of a delivery order for the wheat signed by S. and Co. The plaintiffs lodged this

order with the railway company, who accepted it. Subsequently to this the railway company sent another advice note to B. and Co., which differed from the first in some particulars, and across the top of which was written "charges only," but which was upon the same printed form as the first. The two advice notes in reality related to the same consignment of wheat. B. and Co. obtained a second advance from the plaintiffs upon the security of the second advice note by fraudulently representing that it related to another consignment of wheat. B. and Co. thereupon signed the delivery form on the second note, and filled in the plaintiffs' names, and handed it to them, and they lodged it with the railway company, who accepted this order also. In an action by the plaintiffs against the railway company for the amount lost by them on the second advance to B. and Co., held, by the Court of Appeals (affirming the judgment of Pollock, B.), that the railway company having been guilty of culpable negligence, and such negligence having been the proximate cause of the plaintiffs' loss, the defendants were estopped from alleging that the two advice notes related to the same consignment of wheat; and that the plaintiffs were therefore entitled to recover. Held, also, that although the advice notes were not negotiable instruments, yet from the form in which they were drawn, and the mode in which the defendants dealt with them, they could not be taken to be in the nature of mere invoices of the goods. Court of Appeals, June 18, 1883. Coventry v. Great Eastern R. Co. Opinions by Brett, M. R., and Lindley and Fry, L. JJ. (49 L. T. Rep. [N. S.] 641.)

My attention has been called to the communication in your last issue of Judge Goepp of this city. There must be some mistake in the matter if the Institute library be the one referred to in the letter. А сору of Chandler's American Criminal Trials has been the property of the Law Institute for nearly forty years. The reference in Burrill to Chambers' Trials, is to the expression of a threat against the deceased by one of the parties indicted.

The Carawan case is a pamphlet copy of the evidence in a murder trial, which took place over thirty years ago in an inferior court of North Carolina. As the court exercises appellate jurisdiction only over the decisions of its own clerks and justices of the peace, it is not surprising that as yet no reports of its decisions are in print.

Chandler's Criminal Trials was prepared for popular reading. It is an abridged narrative of trials divested of the technicalities of legal proceedings. Its use in court would be as novel as that of a copy of Spicer's Judicial Dramas, Cowley's Famous Divorces, or Burke's Romance of the Forum. The Carawan pamphlet may be found very likely in the library of every

lawyer who makes a specialty of collecting criminal trials. Every reference in Burrill clearly indicates that the pamphlet is simply a narrative of the facts or report of the evidence in this murder trial.

It is therefore at par with ephemeral publications which in their time were hawked or sold in the street as reports of the trials of Walworth, McFarland, Stokes, Monroe Edwards and Rozenweig.

A pamphleteer of the day, would entitle it "Sinful Desires; an Account of the wicked Career of a Clergyman." If the law of the land is only to be ascertained from such sources, perhaps it would be as well that the law be permitted to remain unrevealed.

The question of evidence in the Carawan case was no doubt the same as in the Spooner case cited by Burrill from Chandler's Trials. Both references are made by Burrill in the same connection, and this is therefore a reasonable presumption. Even were these records of evidence valuable for coart purposes, they would still be superfluous, as the books are full of authorities regarding the admissibility in like cases of the defendant's declaration of intent and threats. Witness, Wharton, Bishop, Greenleaf, Archbold, Bennett and Heard, Horrigan and Thompson, Starkie, Hawley, Taylor, Russell, Hume, Roscoe, Robinson, etc.

These authorities are equally complete in elucidation of the following and kindred topics, as to whether the expressions of mental and bodily feelings are hearsay- the admissibility of the declarations of a party whenever the condition of his mind is at issue and the declarations tend to throw light upon such conditionthe expediency of admitting evidence which goes to show the state of feelings of the parties toward each other at the time of the act committed-the relevancy of all facts which tend to prove a real motive of the defendant in killing the deceased, whether such evidence be offered by the prosecution or the defensethreats by the deceased when the evidence is favorable to the slayer-defendant's declarations and threats and of declarations generally and the circumstances under which they are admissible as evidence in trials for murder.

The hindrances to the free exercise of will and determination, constraint of personal action by force or fear, the various kinds of duress and as to what constitutes duress at law, the application of the rule of duress per minas, the legal limitations of fear in actions, civil and criminal may be found exhaustively, lucidly and most skillfully discussed by many of the most noted American and English law writers in the following references, which are taken from the annotated catalogue of the New York Law Institute Library of 1884, and which I trust you can spare the space to print, as they may be of interest and use to the profession:

What is and what is not duress-who may take advantage of duress-effect of duress. A. C. Freeman Note of Cases, 26 Am. Dec. (1881) 374-378.

What constitutes compulsory payment-compulsion must be illegal, unjust or oppressive-must exist when-must proceed from the party receiving payment-must consist of actual or threatened exercise of power over person or property-compulsion of legal process-commencement of suit or threat thereof, not compulsion-duress of actual or threatened imprisonment-menaces-duress of goods-duress of realtyduress as to third person-necessity, sufficiency and utility of process-recovery of illegal taxes paid under compulsion-as to money paid for redemption of land, etc.-license fees-illegal fees exacted colore officiiillegal distress money wrongfully demanded as rent-excessive freight exacted by carriers-other examples of involuntary payments. A. C. Freeman, Note of Cases, 45 Am. Dec. (1883) 153-171.

Civil duress and undue influence. 1 Ky. Law Re