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good conduct of two are essentially different engage- extent deprived of the use and enjoyment of said mill, ments, both in ordinary understanding and legal ef- held, that though a riparian owner may use the water fect." See 6 Ad. & E. 523. In that case the sureties while it runs over his land, as an incident to the land, on precisely such a bond in legal effect, and on the he cannot unreasonably detain it or give it another disame plea as in this case, were released. See also Bel- rection, and he must return it to its ordinary channel lows v. Ebsworth, 3 Camp. 52; Parham Sew. Mach. Co. when it leaves his estate. Without the consent of the v. Brock, 113 Mass. 194. Insurance Co. v. Scott. Opin- | adjoining proprietors he cannot divert or diminish the ion by Harris, C. J. (See 17 Alb. L. J. 177, 295, 340; 15
quantity of water which would otherwise descend to id. 124; 4 id. 158.--Ed.)
the proprietors below, nor throw the water back upon [Decided Jan. 12, 1884.)
the proprietors above, without a grant, or an uniuter
rupted enjoyment of twenty years (fifteen under our DEED-CONSTRUCTION-JOINT TENANTS.—Where a
statute), which is evidence of it. This is the clear and father conveys lands to his daughter and her children
settled general doctrine on the subject. All the diffiforever she does not take an estate for life, with remain
culty that arises consists in its application. 2 Kent der to the children, but she, with the children, holds
Com. 439. "The primary use of water is for patural the land as joint tenants, and it is immaterial for this
and domestic purposes, and each proprietor of the land purpose that the names of the children were not in
through which it flows may use as much of it as is necserted in the deed. In Davis v. Hardin, 80 Ky. 672,
essary for those purposes, even if it be entirely conthis court said: “A father making provision for his
sumed in tho use; but he is limited as regards child, and that child's children, may well be supposed
other purposes to a reasonable and proportionate use, to have intended them to take jointly. They are all of
which must not be such as to exclude others from a his blood, and tho natural objects of his bounty. If oth
benefit to which they are equally entitled with himers were named in such a grant than the children there
self." Wadsworth v. Tillotson, 15 Conn. 366; Evans v. would then be no room for construction; and that
Merriwether, 3 Scam. 492; Arnold v. Foot, 12 Wend. the word children is used affords no reason for infer
330; Davis v. Field, 12 Ver. 118; Mayor of Philadelphia ring an intention on the part of the grantor to make a
v. Commissioners of Spring Garden, 7 Barr. 348; Wesdifferent disposition of the estate than the plain lan
ton v. Alden, 8 Mass. 136; Colburn v. Richards, 13 guage of the instrument indicates, and then to reverse
id. 420; Cook v. Hull, 3 Pick. 269; Anthony v. Lapthe rule when applied to strangers, for the reason that
ham, 5 id. 175; Evans v. Merriwether, supra. (2) The such a conveyance is susceptible of but one construc
owner of a grist mill on a water-course has a vested tion." See Powell v. Powell, 5 Bush, 619. Bullock v.
right which cannot be taken away without just comCaldwell. Opinion by Pryor, J.
pensation, but this does not impair the right of any ri[Decided Jan. 22, 1884.]
parian owners along the stream to use the water. In STATE-ACTION BY, DEFENDANT MAY SET-OFF-RO
this case the charter of the railroad company, authorJUDGMENT AGAINSTSTATE IN ABSENCE OF LEGISLATION
izing them to construct and maintain their road, did -EXEMPTION FROM TAXATION-WHEN GRANTEE ENTI
not include the right to build dams or otherwise obTLED TO.-(1) When the State undertakes to Jitigate
struct the flow of the water. Anderson v. Cincinnati So. with the citizen the latter may, by way of set-off or
R. Opinion by Lewis, J. counter-claim, make such defense as will defeat the [Decided Feb. 19, 1884.] recovery, but is not entitled to a judgment over against the State in the absence of some legislative enactment authorizing the recovery. (2) Where the charter of a railroad company provides that it shall be
WISCONSIN SUPREME COURT ABSTRACT. exempt from taxation, and that lessees or purchasers shall be vested with all the rights, etc., of the corpora
RECORDING ACT-INDEX PART tion, held, that ordinarily the sale of the property
SION MAY BE REMEDIED --GOOD FROM WHEN -and franchises of a railroad corporation under a decree
EJECTMENT-GRANTEE OF TAX DEED-STATUTE LIMIpasses the rights and privileges usually pertaining to
TATIONS.—(1) The object of the registry laws, viz., to such corporations or necessary to their existence, but give notice to subsequent purchasers, can only be sewhere there is an immunity from taxation inserted in cured by making the correct entries in the index rethe grant, it has been held to be a mere personal privi. quired to be kept by statute. The instrument is lege pertaining alone to the original company, and is
deemed recorded when thus indexed. In the absence not transferable. Such an immunity, as said by Mr.
of this material entry, due notice cannot be said to be Justice Field in the case of Morgan v. Louisiana, 3 given, even though the instrument be copied at length Otto, 217, “is personal, and incapable of transfer with- in the book kept for that purpose. That the entries in out express statutory directions." See also the case of the general index are the material things in determin. Evansville, Henderson & Nashville R. Co. V. Com- ing whether a deed has been so recorded as to be monwealth, 9 Bush, 438, in which the same doctrine is
notice to subsequent purchasers, has been adjudicated recoguized. We find in this case not only legislative by this court. In Shove v. Larsen, 22 Wis. 142, the authority authorizing the transfer, but as an induce
present chief justice, in the opinion of the court, after ment to the purchasers to make the bid under which commenting upon the decisions of the courts of New they claim, it is expressly provided that this immunity York and other States, under laws differing from the from taxation shall follow the road in the hands of law of this State, says: “But we think the object of those who buy it. Commonwealth v. Owensboro. Opin- our statute in requiring the register to keep an index ion by Pryor, J. (As to first point see 1 Perry on
and to make certain entries therein was not only to Trusts (2d ed.], $ 41; 89 N. Y. 36; 26 Eng. R. 265; 27 furnish a ready and convenient means of tracing title, Alb. L. J. 10.--Ed.)
but was also for the purpose of effecting constructive [Decided Jan. 24, 1884.]
notice of the existence of any conveyance properly en
tered in such index. This it appears to us, was the WATER-COURSE-RIGHT OF DIVERSION BY RAILROAD.
object and interest of those sections of the statute -In an action brought for the alleged wrongful and above cited." The sections cited by the chief justice unlawful obstruction and diversion, by reason of a in that case are the ones above cited in this. In that stone dam, of water that hitherto flowed to and sup
case this court held that a mortgage which had beeu plied the power for the operation of plaintiff's mill, properly entered in the index was properly recorded, whereby, as he states, he has been injured, and to a great although where it was spread upon the record there
was a mistake made in the description of the lands Rep. 11, that it is unnecessary to look further into the mortgaged, the description in the index being the cor- authorities on that question. Mr. Justice Taylor says, rect description. In Hay v. Hill, 24 Wis., the question in the opinion in that case, that “the rule in case of a Was between a mortgagee and a subsequent purchaser breach of contract for doing specific work for a speciwithout notice in fact. That it is necessary to make fied price is the profit the person would have realized the proper entries in the general index, as required by had he been permitted to perform the work." This section 142, in order to make a record of a deed under profit, of course, is ascer ained by the difference bethe law, is again asserted in Oconto Co. v. Jerrard, 46 tween the contract price and the cost of doing the Wis. 319. See also Insurance Co. v. Scales, 27 id. 640. work. There can be no other rule of ascertaining it. The cases of Ely v. Wilcox, 20 id. 528; Fallass v. Pierce, It was affirmative with the defendants to mitigate or 30 id. 444; Pringle v. Dunn, 37 id. 449; Girardin v. lessen the damages which approximately and naturLampe, 16 N. W. Rep. 614; Wood v. Meyer,36 Wis. 308; ally followed the breach of their contract. 1 Greenlf. Gilbert v. Jess, 31 id, 110, in no way conflict with the Ev., $74; Knapp v. Runals, 37 Wis. 135; Dickson v. rule established in the cases above cited. The point of Cole, 34 id. 621; Medbery v. Sweet, 3 Chand. 210. The these cases is that when the record of the instrument defendants did not offer any evidence to this effect or recorded in extenso does not show that it was so exe- ask for any instructions to the jury upon the subject. cuted and acknowledged as to entitle it to record, the (3) Where a part payment is to be made in a certaid entries in the general index do not cure such defect, amount of logs, at a fixed price, neither party may for the reason that as to these matters the statute does show that that was not the value of the Jogs. The not require any entry to be made in the general index. rule in such a case is properly stated in Ganson v. (2) An omission to make the proper entries in the gen-Madigan, 13 Wis. 67, a case where the contract was to eral index, at the time the deed is spread upon the pay for property to be delivered at a fixed price, and record, may be remedied after such recording by is stated also in the following cases: Harrington v. making the proper entries, and when so made the Wells, 12 Vt. 505; White v. Tompkins, 52 Penn. St. record will be good from that date, and the deed need 363; Perry v. Smith, 22 Vt. 30; Pinney v. Gleason, 5 not be again recorded at length. (3) The same notice Wond. 393; Trowbridge v. Holcomb, 4 Ohio St. 38; is required to set the statute of limitations running as Grieve v. Annin, 1 Halst. 463; Smith y. Dunlap, 12 Ill. to be valid against subsequent purchasers. The origi- 184; Fleming v. Potter, 7 Watts, 381. The contract nal owner of lands cannot maintain an action of eject- was in evidence, and the contract price for doing the ment against the grantee in a tax deed until after he work, both in money and in the hemlock logs, is shown takes possession or records his tax deed. Section 6, ch. thereby. Nash v. Hozie. Opinion by Orton, J. 334, Laws 1878, does not change the law and set the [Decided Jan. 29, 1884. ] statute of limitations ruuning in favor of unrecorded
WATER-COURSE-USE LIMITED LEASE-LEGAL deeds issued before the passage of that act, or in favor of the holder of a tax deed of unoccupied lands, where
REMEDY NO BAR TO EQUITABLE INTERFERENCE.-(1) such holder does not have actual possession during the
The rule is settled in this State, that when a complaint statutory nine months, for the reason that the object attempts, but fails to state a cause of action in equity, of this special legislation was in aid of the tax claim
a general demurrer thereto will be sustained. Deuner ant and not hostile to him. Lombard v. Culbertsen.
6. Chicago, 57 Wis. 218; 15 N. W. Rep. 158, and cases Opinion by Taylor, J.
cited.(2) The plaintiffs have subject to defendants leases [Decided Jan. 29, 1884.]
a usufructuary interest in all the undisposed of water
appurtenant to their water-power. The defendant's EVIDENCE-RES GESTAE-ADMISSION
right to draw and use however is given by and necesPROFITS-BURDEN OF PROOF-PART PAYMENT IN PROP- sarily defined and limited in the leases. Whatever ERTY-VALUEOF, CAN NOT BE SHOWN.-The contract has been or may be drawn in excess of the amount was that the plaintiffs, as partners, should saw at their thus authorized, defined, and limited must be regarded mills at the city of New London, during the sawing as wrongfully drawn and used. Being of great value, season of 1881, for the defendants, as partners, 1,000,- and wrongfully used, as alleged, such use must be 000 feet of basswod and elm logs, and 50,000 feet of oak deemed injurious to the owners. This is virtually logs, to be delivered at the plaintiffs' mill for that pur- conceded. It is also conceded that the plaintiffs have pose by the defendants, for and in consideration of a remedy for such injury. It is claimed however that $2.75 per thousand feet for the basswood and elm logs their remedy at law is adequate, and hence that they and of $3.75 per thousand feet for the oak logs, to be are in no position to successfully invoke the aid of paid, when the sawing was done, in cash, except the equity. On the contrary, it is urged by the plaintiffs sum of $300, which was to be paid by the delivery of that they have no adequate remedy at law, and hence 100,000 feet of henılock logs at the rate of $3 per thou- are entitled to the aid of equity. The mere existence sand feet. Defendant failed to perform. (1) Defend- of a legal remedy will not bar equitable interference ant offered to show that at or about the time when where such interference would be more adequate, said contract was pretended to have been made, comprehensive, and effectual. Bunis v. Upham, 13 the defendant, Hoxie, had instructed or advised his Pick. 170; Boston, etc., Co. v. B. W. R. Co., 16 id. 521 ; copartner, Meller, not to enter into any such contract Ballon v. Hopkinton, 4 Gray, 328. Of course, such unless in writing. Held to be no part of the res gesta, preventative remedy is not given merely by reason of and could have no bearing on the question as to past injury, but to prevent its continuance. Cobb v. whether a contract had been made or not; it did Smith, 16 Wis. 692. Where the continued use or not tend to prove the issue, or constitute a link in the threatened danger is such as to cause reasonable fear chain of proof. It was merely an offer to show that of irreparable injury, it is not essential that there the one party was so situated that it was improbable should be actual damage, or even a completed violathat he should have so contracted. (2) The, instruc- tion of the plaintiff's rights, in order to entitle bim to tion that “admissions are weak testimony" is awk- the protection of equity. Webb v.Portland Maufg.Co., wardly expressed, but was intended and understood | 33 Sumn. 189; Gould Waters, $$ 513-517, and cases to mean that the testimony by which admissions are there cited. An injury is irreparable, and will be enproved is a weak kind of testimony, and should be re- joined if of such a nature that it cannot be adequately ceived with the greatest caution. The rule of damages compensated in damages, or cannot be measured by in such a case has been so recently laid down by this any certain pecuniary standard. Wilson v. Mineral court, in Nilson v. Morse, 52 Wis. 255; 8. C., 9 N. W. Point, 39 Wis. 160. Where the injury is continuous,
and under a claim of right, restraint in equity seems City of Brunswick, 1 Hughes, 270; Forrest Home v. to be essential in order to prevent vexatious litiga- Keeler, 9 Rep. 432. The fact that there is other busition, and a multiplicity of suits. Garwood v. Ry., 83 ness entitled to precedence on the docket does not obN. Y. 404; Tipping v. Eckersley, 2 Kay & J. 264; Clark viate the necessity of filing the petition for removal at v. Stewart, 56 Wis 154; S. C., 14 N. W. Rep. 54. So it the first term when the caso could otherwise be tried. has been held that where parties have regulated their Preston v. Ins. Co., 58 N. H. 76; Murray v. Holden, 10 rights in water by contract or grant, the meaning and Rep. 162. Nor does the time when a cause may first breach of which is clear, it is not a question of dam- be tried depend upon the diligence of counsel in comage, but the mere breach affords sufficient ground for pleting the pleadings. Fulton v. Golden, 8 Rep. 517. equitable intervention. Tipping v. Eckersley, supra; The object of the statute of 1875 was to abridge the Dickenson v. Grand Junction Can. Co, 15 Beav. 260; right of removal by fixing a definite time within which Olmstead v. Loomis, 9 N. Y. 423. So it has been held it might be exercised. Stebbins V. Lancashire Ins. Co. that where there is an admitted common right among Opinion by Smith, J. several owners of the same water-power, equity will interpose to regulate the common use, to determine
FORMER ADJUDICATION-DECREE IN EQUITY CON. the extent of their respective rights, and the proper
CLUSIVE AS TO ALL MATTERS PARTIES BOUND TO LITImode of exercising and enjoying them, as tending to
GATE-NEGLECT TO PRESENT CLAIM-SOPPLEMENTAL preveut litigation, and as affording a more complete
BILL.-A final decree in a bill in equity is conclusive and perfect remedy than could be obtained at law, and
upon all the parties in respect to all matters of claim as furnishing, in fact, the only adequate means of as
and defense determined by it, and as to all incidental certaining and determining the respective rights of
matters which the parties were bound to litigate and the parties. Burnham v. Kemptom, 44 N. H. 100;
bring to decision. Neglect to present a claim, which Caulet v. Cook, id. 512; Hanna v. Clarke, 31 Grat. 36;
might have been litigated in a bill in equity, until Adams v. Manning, 48 Conn. 477; Sanborn v. Braley,
after a final decree, on a motion for a rebearing, is a 47 Vt. 170; Markham v. Stowe, 66 N. Y. 574; Comstock
waiver of the claim, and after such decree leave will v. Johnson, 46 id. 615; Corning v. Troy I. & N. Fact.,
not ordinarily be given to file a supplemental bill to 40 id. 191; Erie Canal Co. v. Walker, 29 Peun. St. 170;
enforce it. Freem. Judg., $ 249; Story Eq. Pl., $$ 790, Lehigh Valley R. Co. v. Society, 30 N. J. Eq. 145;
791; Story Eq. Juris., $ 547; Clemens v. Clemens, 37 N. City of Emporia v. Soden, 25 Kan. 588. In Lyon v.
Y. 59, 74; Malloney v. Horan, 49 id. 111, 116; Cromwell McLaughlin, 32 Vt. 425, both parties had rights to the
v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 privilege of water under their respective deeds, and
id. 688; King v. Chase, 15 N. H. 9, 15. Ashuelot the court aptly stated the rule thus: “It would seem
Ruilroad Co. v. Cheshire Railroad Co. Opinion by to be well settled, as shown by the text-books and the
Clark, J. cases, that when the evasion of a right in this kind of PRIVATE WAY-OBSTRUCTION DEVIATION FROM property is threatened and intended, which is neces
NECESSITY-NEED NOT REMOVE NOR SUE FOR DAMsarily to be continuing and operating prospectively AGES.- An obstruction of a private way of prescripand indefinitely, and the extent of the injurious con- tion, by the land-owner, making the way impassable, sequences is contingent and doubtful of estimation,
may create a reasonable necessity that the owner of the writ of injunction is not only permissible, but is
the way should deviate from it, and go over another the most appropriate means of remedy. It affords, in part of the land. The dootrines of reasonable necesfact, the only adequate and true remedy. For the
sity, reasonable care, and reasonable use prevail in very doubtfulness as to the extent of the prospective this state in a liberal form, on a broad basis of general injury, and the impossibility of ascertaining the meas- principle. Brown v. Cram, 1 N. H. 169, 172; State v. ure of just reparation, render such injury irreparable, Elliot, 11 id. 540; Graves v. Shattuck, 35 id. 257; A. Y. in the sense of the law relating to this subject." Law- Company v. Goodale, 46 id. 53; Closson v. Morrison, 47 son y. Menasha. Opinion by Cassoday, J.
id. 482; Sterling v. Warden, 51 id. 217; 52 id. 197; Ald. [Deoided Jan. 29, 1884.)
rich v. Wright, 53 id. 398; Brown v. Collins, id. 442; Hoit v. Stratton Mills, 54 id. 109, 116; Jones v. Towne,
58 id. 462, 465; Garland v. Towne, 55 id. 55; Gilman v. NEW HAMPSHIRE SUPREME COURT Lacopia, id. 130; Rowe v. Portsmouth, 56 id. 291; BasABSTRACT. *
sett v. 8. M. Company, 43 id. 569; Swett v. Cutts, 50
id. 439; Hayes v. Waldron, 43 id. 580; Varney V. ManMORTGAGE-WHEN PAYMENT OPERATES AS ASSIGN
chester, 58 id. 430. The rights of necessity are a part
of the common law. The necessity is generally a reaMENT.-Payment of a mortgage debt by one having an
sonable one, and determined by the application of reainterest to protect will operate as an assignment of the
son to the circumstances of the case, and not premortgage whenever justice requires it. Stantons v.
scribed as an arbitrary, verbal formula. Daniels v. Thompson, 49 N. H. 272; Moore v. Beasom, 44 id. 215;
Brown, 34 N. H. 454. A ground on which, in many Rigney v. Lovejoy, 13 id. 247; Robinson v. Leavitt, 7 id. 73, 100. Bacon v. Goodnow. Opinion by Smith, J. ) judicial procedure, is the inadequacy of such process
cases, the law allows a remedy without legal process or REMOVAL OF CAUSE-PETITION WHEN TO BE FILED.
and procedure. The law adopts the natural right -A petition for the removal of a cause to the Federal
of self-defense, because it considers the future process court filed at the fifth term, the pleadings being com- of law an inadequate remedy for present injuries acplete at the second term, is not filed at the term when compauied with force. It adopts the natural right of the cause can first be tried. The term at which a recapturing property, real and personal, by the mere cause can first be tried is the term at which the cause act of the party injured, because legal process may be is first triable on its merits. Huddy v. Havens, 3 W. an inadequate remedy. It adopts the natural right of N. C. 432; Am. Law Reg., May, 1879, p. 312. It is the abating nuisances by the more act of the party injured, first term at which the case is at issue for trial and because he cannot reasonably be required to wait for might be ordered to be tried. New York Warehouse the slow progress of the ordinary forms of justice. 3 & Security Co. v. Loomis, 122 Mass. 431. It is the term BI. Com. 3-6; Cooley Torts, 45-58. The owner of the when the cause is ready for trial, although the court right of way could lawfully go round the nuisance and and parties may not be ready to try it. Gurnee v.
out of the way, doing no unreasonable damage, be
cause such deviation, like an abatement of the nuiTo appear in 59 New Hampshire Reports.
sance, was a remedy of necessity. If he removes the obstruction and makes the way passable, the necessity profitable use of the money, or unreasonably detain of going out of the way will cease (State v. Northum- | it.” In this case, it is claimed that the administratrix berland, 44 X H. 628, 631, 632); but there is no reason- should be charged with interest on the $198.61 found able necessity for leaving the owner of the right of in her bands upon the settlement of her first account. way to the inadequate remedies of his own removal of But she was not required to pay this sum to the credithe obstruction, and a suit for damages. Haley v. tors till after a decree of distribution, and she could Colcord. Opinion by Doe, C. J.
not settle the estate till after the sale of the real propTRESPASS — ACTION BY MORTGAGEE – ACTS DONE
erty. Not having unreasonably detained the money, WHEN OUT OF POSSESSION-LICENSE BY MORTGAGOR.— or invested it, or in a conveyance of his title to the A mortgagee of land, who has entered and taken
plaintiff in mitigation of damages. Bartlett v. Fitz. actual possession under his mortgage, may maintain
Opinion by Foster, J. trespass for an injury done to the freehold while the [Decided June, 1880.] mortgagor was in possession; and it is no defense that PAYMENT_TARING NOTE NOT, UNLESS AGREEDthe acts causing such injury to the freehold were done WHEN ACTION NOT PREMATURE-OFFER TO RETURN.by license from the mortgagor, given subsequent to The plaintiffs, by taking two notes, equal in amount the execution of the mortgage. Jones Mort., § 687; to the bill, neither of which was due and payable when Pettengill v. Evans, 5 N. H. 54; Smith v. Moore, 11 id. this suit was commenced, did not extend the time of 55; Sanders v. Reed, 12 id. 558. Bellows v. Railroad. payment, and this action was not for that reason, preOpinion by Clark, J.
mature. A note is not payment of a pre-existing debt, [Decided Dec. 1879.)
unless specially agreed to be received as such. Wright DAMAGES-MITIGATION TEND ER OF PROPERTY.
v. First Crockery Ware Co., 1 N. H. 281; Jaffrey v. In an action for damages for withholding property Cornish, 10 id. 505; Johnson v. Cleaves, 15 id. 332; from, or not conveying property to the plaintiff, a Clark v. Draper, 19 id. 423; Randlet v. Herren, 20 id. tender of the property or part of it, or a conveyance of
103; Whitney v. Goin, id. 354; Smith v. Smith, 27 it or part of it, to the plaintiff, may be allowed at the
id. 244; Ladd v. Wiggin, 35 id. 421, 426. Whether a trial in mitigation of damages, when such a course is
note was agreed to be received in payment is a quesreasonable. Towle v. Laurence. Opinion by Doe, C.
tion of fact. Wilson v. Hanson, 20 N. H. 375; Foster J. (See Moak's Underhill on Torts, 95-8.-ED.)
v. Hill, 36 id. 526. So is the question, whether it was [Decided June, 1880.]
agreed to extend the time of payment for the goods.
The mere reception of the notes, assuming them to BOUNDARIES-QUESTION OF FACT.-The location on
have been given for the goods, as it was not a payment the ground of boundaries described in deeds is a ques
for them, did not have that effect. The offer to return tion of fact. Madden v. Tucker, 46 Me. 367; Abbott
the notes to be cancelled was seasonably made, and V. Abbott, 51 id. 575; Tebbetts v. Estes, 52 id. 566;
the plaintiff, on filling them with the clerk, is entitled Willistou v. Morse, 10 Meto. 17, 27. Tasker v. Cilley. to judgment. Moore v. Fitz. Opinion by Stanley, J. Opiniou by Bingham, J.
[Decided June, 1880.] [Decided June, 1880. ]
MONEY PAID-REFUSAL TO PERFORM CANIJOT RECOVER- ESTOPPEL.—Money paid on a contract for the MICHIGAN SUPREME COURT ABSTRACT. purchase of land cannot be recovered by one who refuses to complete the contract aud take a deed, the
NEGLIGENCE-GETTING OFF REAR OF CAR NOT PER SE other party being in no fault. Lane v. Shackford, 5
DUTY OF RAILROAD COMPANY TO PROVIDE ASSISTANCE N. H. 133; Ayer v. Hawkes, 11 id. 148, 152, 153;
--QUESTION FOR JURY.-Plaintiff, a woman sixty years Ketchum y. Evertson, 13 Johus. 365; Green v. Green,
of age, was travelling on defendants' road. The night 9 Cow. 46; Rounds v. Baxter, 4 Greenl. 454. Having
was dark and cloudy. On arriving at her destination abandoned the contract and refused to perform, and
she and her husband who was with her got out at the not being entitled to recover the money which he has
rear end of the car. There was a crossing there, and paid, he has no interest to protect, and equity will not
she was familiar with the locality. Instead of being uphold the mortgage for that purpose. Refusing to
over the level road as she expected, the end of the car perform the contract on his part, and standing by and seeing the property sold without claiming title or in- foot left the step she went down so far that her hold
was a depression at the side of the road, and when her terest, he is estopped from setting up or making claim under a mortgage, which, to the extent of his claim at
of the iron was broken and she fell to the ground.
During all this time, no one connected with the least, was understood by the defendants and himself
train or employed by the defendant was giving her to have been paid. Thompson v. Sanborn, 11 N. H.
assistance or looking after passengers at the rear end 201 ; Parker v. Brown, 15 id. 184. Bill dismissed. Hill
of the car. Held, that under such circumstances it v. Grosser. Opinion by Allen, J.
cannot be said that it is negligence per se for a passen[Decided Jupe, 1880.]
ger to leave the car at the rear. If there was negliADMINISTRATOR FAILURE TO INVEST - WHEN gence in this case it must arise from the fact of the CHARGEABLE WITH INTEREST.-In Lund v. Lund, 41 darkness, the known fact that the rear of the car was N. H. 355, 359, it is said: “The true rule to be ap- not at the landing, and the uncertainty in respect to plied, in charging administrators with interest, is well the ground where it stood. If the front end of the car settled. In all cases where the administrator, without had been at the platform, there would have been more any just reason or excuse, retains the money in his reason for insisting that the plaintiff should have gone own hands unemployed, when it ought to be paid over, in that direction, But we think a woman is excusable in all cases where he receives interest for money which for not desiring to pass through the smoking car, and belongs to the estate, and in all cases where he applies she has a right to assume it is not expected of her. We money belonging to the estate to his own use, he also think that passengers, where not notified to the ought to be charged with interest," citing Stearns v. contrary, may rightfully assume that it is safe to alight Brown, 1 Pick. 630; Wyman v. Hubbard, 13 Mass. 232; from the car wherever it is stopped for passengers to Griswold v. Chandler, 5 N. H. 492, 497 ; Mathes v. Ben. leave it. And if no light is given them to leave the nett, 21 id. 188, 199; Wendell v. French, 19 id. 205, 213. car by, they are not to be charged with fault for leavIn the last case it is said: "An administrator is not ing in the darkness. If a car in which there were pas. chargeable with interest except he receive it, or make sengers was not standing where it would be safe for
them to alight without assistance, it was the duty of had been any. Gompertz v. Gompertz, 2 Phil. 107, the company to provide assistance, or give warning, or and Lassence v. Tierney, 1 M. & G. 551, followed. to move the car to a more suitable place. This was Williams v. Gorvin. Ch. Div. Opinion by Pearson, J. decided in Cockle v. London & S. E. R. Co., L. R., 7 (50 L. T. Rep. [N. S.] 22. C. P. 321, a case on its facts very similar to this; and
WILL-CONSTRUCTION-FORFEITURE OF ESTATE IN the same principle has often been laid down in other
CASE OF NON-RESIDENCE--WHAT IS RESIDENCE.-TesNicholson v. Lancashire, etc., R. Co., 3 Hurl. tator gave bis real estate, including specifically his & C. 534; Foy v. London, etc., R. Co., 18 C. B. (N. S.) house, to the use of his son for life, provided as a sine 235; Brassell v. N. Y. Cent., etc., R. Co., 84 N. Y. 241;
qua non that he should, within six calender months S.C.,3 Am. & Eng. R. Cas. 380; Penn. R.Co.v.White,88 after the testator's decease, take actual possession of Penn. St. 32; and Balt. & 0. R. Co. v. State (Md. Ct. the house as his residence and place of abode, and App.), 12 Am. & Eng. R. Cas. 149, are among those so
should thereafter, during his life, continue to reside holding. There was therefore evidence to go to the
there for at least six calendar months (but not necesjury on the question of negligence in the defendant.
sarily consecutively in every year). After the son's And the peculiarity of the case is such that the same
death, or his failing to take possession of, and reside facts which tend to show negligence in the railroad
in, the house, the estate was given to his first and company tend in the same degree to show that the
other sons in tail male. There were also certain artiplaintiff was without fault. If she had a right to as- cles given to go as heirlooms with the estate. The tessume that the landing place was safe, she was not neg- tator's son took possession of the house within the ligent in stepping down as she did. It must be con- time required, but during the year following his doing ceded that she did not exhibit a very high degree of so he only spent a few days there. He had however caution, but we cannot say that it was not as much as kept the house and garden in good order, paid the the average passenger would have shown under like rates and taxes, and kept a sufficient staff of servants circumstances. Cartwright v. Chicago. Opinion by to wait upon himself and his family if they should Cooley, C. J.
come there, and rooms were always kept ready for his [Decided Feb. 8, 1884. ]
son, who frequently spent two or three days there,
and generally the place was kept up and regarded as RECENT ENGLISH DECISIONS.
one of his actual places of residence. The question
was raised whether he had forfeited his interest in the WILL-GIFT-INDIVIDUALS OR CLASS— LAPSE.- A real estate and heirlooms by not residing in the house testator, by his will, gave his residuary estate to trus- for six months of the year. Held, that it was not tees "in trust for my son George, my daughters, necessary for him to reside personally upon the estate Lydia, Mary Ann, Alice, and Frances, and such of my for the whole period, but it was sufficient to satisfy child or children, if any, hereafter to be born, as shall the condition if he kept it up as one of his actual attain the age of twenty-one years or marry, in equal places of residence during the time; this he had done, shares as tenants in common, but subject as to the and his interest under the will was not forfeited. share of any daughter whether now living or a child Warner v. Moir, Ch. Dir. Opinion by Bacon, V. C. (50 hereafter to be born, to the trusts following." Then L. T. Rep. [N. S.] 10). followed the trusts of the share of “such daughter."
ANNUITY—PROPERTY GIVEN SUBJECT TO-RIGHT TO The testator had six children only, those named in the
HAVE SECURED.-The testator gave all his real and will and one other, all of whom had attained twenty; personal estate to his son upon trust to pay thereout one at the date of the will. Two of the children named weekly and every week to the testator's wife duriug in the will died in the testator's life-time without is
her life the sum of 1l. 10s., and subject thereto, upon sue. Held, that the gift was a gift to a class and not
trust for his said son absolutely. The testator had as individuals, and that the residue was divisible
been dead four years, and the weekly payment had amongst the three children who survived the testator.
been regularly made during all that period. The widow Re Stanhope's Trusts, 27 Beav. 201, followed. Shires
now asked that its future payment should be secured V. Ashworth, Ch. Div. Opinion by Chitty, J. (50 L. T.
by the sale of the property and the investment of the Rep. (N. S.) 18.)
proceeds. The estate consisted substantially of a WILL-ABSOLUTE GIFT-QUALIFICATION OF LAPSE- leasehold public-house, and the business carried on Where in a will there is an absolute gift, followed by a there, and the total amount of it, if realized, would qualification of the mode of its enjoyment to secure not have been equal to the amount of the capitalized certain objects for the benefit of the legatee, then if value of the annuity. Held, that the property was the objects fail, the absolute gift remains. But if given to the son absolutely, subject only to the paythere is an absolute gift followed by a clause diminish- ment of the annuity, and so long as be paid that he ing the estate so given to the first taker, the absolute was entitled to the quiet possession of his property, gift has, in effect, been cut down, and the court can and the widow was not entitled to have it sold.. Potonly give effect to it as so diminished. A testator gave ter v. Potter, High Ct. Justice, Ch. Div. Opinion by property to trustees upon trust out of the rents and Bacon, V.C. 150 L, T. Rep. (N. S.] 8.) income to pay annuities to his wife and daughter H., for their lives, and subject thereto to invest and accu
CRIMINAL LAW. mulate the rents and income, and stand possessed of the property and accumulations on trust for the chil- LARCENY-WANT OF CONSENT-CIRCUMSTANTIAL EVI dren of the daughter absolutely as tenants in common; | DENCE OF-PLEADING PURCHASE-ERROR IN CHARGE. "provided always that as to such of the children of A. -The prisoner was convicted of horse stealing. “Ou as may be born in my life-time the share of each such the trial it was proved by the State that the alleged child, instead of being in fee simple, shall go and be- owner, who was an aged lady, in very feeble health, long to such child for his or her life only," with re- was not able to appear in court and testify iu the case. mainder absolutely to the children of such child in it was further shown that W. C. Turnbo, her son, at equal shares and proportions as tenants in common. the time of the alleged theft, was managing and conH. had several children, who were all born in the tes
trolling her business affairs, and that said son had not tator's life-time, and one of whom survived him and consented to the taking of the alleged stolen horse by attained twenty-one, but died unmarried. Held, that the defendant or any one else. The court instructed there was a lapse of so much of the property as would the jury that it devolved upon the State to prove sathave been taken by the children of such child if there l isfactorily and beyond a reasonable doubt that the