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agency of the county to expend this fund. The State was held that money, by an act appropriated to one may change such agencies at pleasure for the expendi- public purpose, is subject to legislative control, and ture of any fund, or the disposition of any property, may be diverted at the will of the Legislature, and which has been derived from the State, or obtained by that public or municipal corporations, in respect to the exercise of the ordinary powers of goverument. public powers and duties granted them or required, Butler v. Pennsylvania, 10 How. 402; United States v. are subject at all times to the control of the LegislaIlartwell, 6 Wall. 385; Newton v. Com’rs, 100 U. S. 548; ture. This was so held in respect to a fund raised by Warner v. People, 2 Denio, 272; People v. Green, 58 N. taxation for public improvements in the county, which Y. 295; Perkins v. Corbin, 45 Ala. 103; People v. Lip- was afterward devoted to geueral county purposes. pencott, 67 Ill. 333; Augusta v. Sueeney, 44 Ga. 463; Co. In Regents , etc., v. Williams, 9 Gill & J. 365, it was Com'rs y. Jones, 18 Minn. 199 (Gil. 182); State v. Vun held that an act making an appropriation of public Baumbach, 12 Wis. 310; State v. Kalb, 50 id. 178. moneys for sanitary purposes, having in view the pub
8th. If the position of the learned counsel of the re- lio health aud the lives of the citizens, confers no vesspondent is tenable, that this fund cannot be trans- ted right on the publio corporation in such fund, and ferred to the town, then the right of the county to it may be revoked at the pleasure of the Legislature. In has never attached, for by the sovereign will of the Supervisors of Walworth Co. v. Village of Whitewater, Legislature this fund has been taken away from the 17 Wis. 193, it was held by this court that the county towns, cities, and villages to which it formerly be- could not recover the moneys received by the village longed, and conferred upon the counties by the same for licenses for the sale of intoxicating liquors, which right.
uuder the charter of the village was given to it, notWe will close this opinion by the citation of authori- withstanding the county bad adopted the county systies deemed pertinent to the question.
tem of supporting the poor. This provision of the 1st. The sale of intoxicating liquors is under the con- charter took effect in 1858, and the general law giving trol of the Legislature in every respect (1 Dill. Mun. all such such moneys to such counties for the support Corp. 362), aud the power to license it may be traus- of the poor was passed in 1855. It made uo dif. ferred from oue municipal body to another, in the dis- ference in the principle that the charter allowed the cretion of the Legislature; and it follows that the city to ouly retain all exceeding 10 per cent of such license moneys may be so transferred. Perdue v. Ellis,
moneys. It was for that exceeding the 10 per cent 18 Ga. 586; Trustees y. Keeting, 4 Denio, 341; and other that the suit was brought. The case was precisely cases cited in note 2 to Dill., supra.
parallel to this, and it was held that the county could 2d. Municipal corporations have no private powers not recover. It is true this constitutional question or rights as against the State. They may have lawfully was not raised, and probably because there was nothentered into contracts with third persons, which con- ing in it. The case of State ex rel. v. Hoefltuger, 31 Wis. tracts will be protected by the Constitution, but be- 257, is analogous to this case in every respect of prinyond that they hold their power froin the State, and ciple, including this constitutional question as well. they can be taken away by the State at pleasure. I Under the law, as it then stood, the proceeds of the Dill. Mun. Corp. 90.
sale of the swamp and overflowed lands were to be 3d. The Legislature can legalize what they could paid by the State to the county treasurers, aud by have originally authorized. Single v. Supervisors, 38 them to the town treasurers, to be used by them for Wis. 363; Knapp v. Grant, 27 id. 147; Kimball v. Town the drainage of the swamp and overflowed lands of Rosendale, 42 id. 412. There can be no doubt but within the same. By a subsequent act all of this fund that the Legislature might have originally authorized in the hands of the town treasurers of certain two the use of this fund by the village for general pur- towns, and all that might accumulate in the next sucposes, and if so, then the use of the fund in this way by ceeding three years, were set apart to be used for the the village may be legalized.
building of a bridge across the Wisconsin river, within 4th. There is no constitutional inbibition against one of said towns, and for that purpose they were the passage of retrospective laws as such. The only placed within the coutrol of certain bridge commisquestion in such case is whether the Legislature in- sioners appointed by the act. It did not appear that tended those to have a retroactive effect, and if so, any contracts had been entered into anticipating the such effect is given to them by the courts. The ob- bridge fund. The town treasurer became relator for a jection in respect to such laws is not because they are mandanıus to compel the county treasurer to pay over retroactive, but whether they disturb vested rights or said moneys which had accumulated in his hauds, and impair the obligation of contracts which were acquired which it was claimed belonged to said town for such or assumed under them and dependent upon them. In drainage purposes, on the ground that the act divertsuch cases they are invalid, not because retroactive, ing it for the purpose of building said bridges was unbut on other constitutional grounds. Hasbrouck v. Mil. constitutional and void, as violating a vested right. waukee, 13 Wis. 37; Cooley Const. Lim. 230; People v. The Circuit Court so held, and granted the perempMorris, 13 Wend. 325; Baltimore & S. R. Co. v. Nesbit, tory writ. On appeal to this court it was held that 10 How. (U. S.) 395; Morris v. Crocker, 13 id. 4.29; Wat- such judgment was erroneous, and that such moneys son v. Mercer, 8 Pet. 88; E.c parte McCardle, 7 Wall. 606; constituted a public fund within the full control of Butler v. Palmer, 1 flill, 324; Foster v. Essec Bank, 16 the Legislature. Before the suit was commenced an Mass. 245; Grover v. Weissenburg School-district, 57 act had been passed repealing the bridge act, but it Pewn. St. 432.
had not taken effect before the disposition of the case 5th. There is direct authority for such legislation. in the Circuit Court; but it had taken effect before In State ex rel. v. St. Louis Co. Ct., 34 Mo. 546, it was the disposition thereof in this court, and therefore to held that moneys acquired by a county from the taxa- save another action the judgment of the Circuit Court tion of its citizens is not the private property of the was affirmed. Chief Justice Dixon uses the following county, and an act directing the county to appropriate apt language in the opiniou in that case, in respect to part of such funds to pay a portion of the police ex- legislative control over such public funds: “No prinpenses of a city within its limits is not the application ciple is better settled than that whatever is given by thereof to improper purposes, and that such an act is statute may be taken away by statute.
* * Supnot objectionable for being retroactive or retrospect-posing it to have been competent for the Legislature ive in its operation. “It takes away no vestcd right, to pass the act (the bridge act), of which we entertain nor does it impair the obligation of a contract." In no doubt, the money was that of the State by its LegCounty of Richland v. County of Lawrence, 12 II. 1, it islature to give, and by the same sovereign power to
withhold whenever, in the judgment of the Legisla- always been held that such a grant does not convey a ture, it was deemed expedient to do so."
conditional estate unless coupled with a clause for the Many other authorities might be cited to the same payment of money or tbe doing of some act by the effect, but this opinion is much longer than it should grantee, on which the grant is clearly made to debe already in respect to a question of bowever great pend.” To make the estate conditional, the words importance, yet concerning which there can be but must clearly show such intent. Cook v. Trimble, 9 little doubt when the nature of such public funds is Watts, 15. First Methodist v. Old Columbia. Opinion considered. The very proposition that a municipal by Mercur, C. J. corporation, created and existing for public purposes (Decided Oct. 1, 1883.] only, can hold its public property or funds independent of the Legislature, or as a vested right, unless pri
MARRIAGE-POST-NUPTIAL AGREEMENT-- SETTLING Fate contracts depend upon them, is a contradiction in
DIFFERENCES-CONSIDERATION.-The settlement and itself.
compromise of doubtful and disputed rights has always This court has been greatly aided in the investiga
been held to be a sufficient consideration to support a tion of this question by the very able briefs of the contract whether executed under seal or otherwise. counsel on both sides, and especially by the brief of
Rice v. Bixler, 1 Watts & Serg. 445; Chamberlain v. the learned counsel of the appellant, which reflects McClurg, 8 id. 31; Paxson v. Hewson, 8 Week. Notes, great credit upon his ability, learning, and research.
197. And the law looks with equal favor upon agreeThe judgment of the Circuit Court is reversed, and
ments, the object of which is to promote domestic the cause remanded, with direction to dismiss the peace and harmony, where they are free from fraud or suit.
the suspicion of improper influence. And family [That a license is not a contract, see 34 N. Y. 657. compromises, especially if they are made in good faith -ED.)
and with full disclosure, are favored in equity, and may be sustained by the court, albeit perhaps resting
upon grounds which would not have been satisfactory PENNSYLVANIA SUPREME COURT if the transaction had occurred between strangers. ABSTRACT.
Bispham's Equity, 192. The same principle is dis
tinctly recognized by many of our own cases, among REAL ESTATE-CONDITIONS NOT FAVORED-WORDS
which may be mentioned, Share v. Anderson, 7 S. & CONSTRUED AS COVENANT.-A. covevanted with B., R. 62; Barton v. Wells, 5 Whart. 225; Smith v. WarC., and D., by av instrument under seal, that he would, den, 7 Harris, 430; Worrall's Accounts, 5 W. & S. 111: when they required, convey to them a certain piece of Ackla v. Ackla, 6 Barr. 232; Fulton v. Moore, 1 Casey, land in fee simple in trust for the sole use of a com.
476; Walworth v. Abel, 2 P. F. S. 370. It is said howpany thereafter to be formed for supplying a certain
ever that in the present case the differences were borough with water, said ground to be for a reservoir purely domestic, that no property rights were involved of a certain size specified. B., C., and D. covenanted and that it was the duty of the wife to return to her that A. sbould, upou erecting a bydrant at his own
husband. This is assuming the whole case, and it is exponse, have a supply of water from the reservoir for assuming it against all its probabilities. The “differhis use. The water company was formed, and B., C.,
ences which caused the separation are not specified in and D. released all their rights under the above agrees the preamble of the agreement, but there is much went to said company, which thereupon constructed a
upon the face of that instrument to show that rights of reservoir of the size specified on the premises. Several property were the foundation of the whole trouble. 2. years after A. coustructed a hydrant, and drew water if a husband's couduct is such that his wife is legally from the reservoir for his own use for a few years. He justified iu leaving him, she has the right to remain then discontinued the use of said hydrant, and subse- absent, and her agreement to return is a sufficient conquently died. Fifty years after the date of the origl. sideration to support a post-nuptial contract entered nal agreement, and twenty-five years after the discon- into by her with him. Burkholder' Appeal. Opinion tipuance of the use of the hydraut, the water com- by Paxson, J. pany abandoned the premises, filled up the reservoir, [Decided Feb, 4, 1884.] and conveyed the land to a religious corporation for church purposes. In ejectment against the church by purchasers from the heirs of A., Held, that the agree. ment between A. and B., C. and D., did not consti
WISCONSIN SUPREME COURT ABSTRACT. tute a base fee determinable on the cessation of the use of the premises for a reservoir, but that it passed a ACKNOWLEDGMENT DEFECTIVE, HOW fee. The agreement to furnish a supply of water to There is in this certificate an absence of the clause, “to A. was a covenant merely, which they could not be me known to be the person who executed the foregocalled on to fulfill unless A. constructed a hydrant. A. | ing instrument. In Smith v. Garden, 28 Wis. 685, it and his heirs having failed to construct and maintain was properly held by this court that an acknowledge a hydrapt for a quarter of a century, the defendant ment made in said distriot, leaving out these words, was entitled to judgment. Whenever words can be was no such ackrowledgment as entitled the deed to construed either as a condition, reservation, or a covo record in the territory of Wisconsin by the laws enant, the tendency of the courts is to construe them thereof. The last clause of the requirement of the as one of the latter, rather than as the former. Hoyt law in that case is significant as to proof of the idenv. Kimball, 49 N. H. 3:20; Wheeler v. Dascomb, 3 Cush. tity of the grantor. The evident purpose of any such 285; Paschall v. Passmore, 3 Harris, 295; McKnight v. legal requirement is that the identity of the grantor as Krutz, 1 P. F. Smith, 232. Words relied on as creat- the persou who executed the deed and the person who ing a coudition must not only be such as of themselves makes the acknowledgment, shall be authenticated or would create a condition, but must be so connected proved as a fact to the extent possible by the certifiwith the grant as to qualify or restrain it. Laberee v. cate of the officer. If then the certificate is sufficient Carleton, 53 Me. 211. It was said by Mr. Chief Justice of such identity, it is substantially in the form reBigelow in Packard v. Ames, 16 Gray, 327, "we know quired by the statute. Under the strict statute of of no authority by which a grant declared to be 1847 of the State of Illinois, which requires the person for a special purpose, without other words, can who executed the instrument to be known to the acbe held to be a condition. On the contrary, it has knowledging officer, and that he should so certify, and
to his identity, it has been held that reference may be valid in its inception, and not tainted with any gamhad to the deed and its attestation to help out any such bling intent, the mere fact that at the time for its ful. defect in the certificate. Carpenter v. Dexter, 8 Wall. fillment, instead of delivering and receiving the arti513. This authority bas been approved, as said by the cle according to the terms of the contract, one of the learned counsel of the appellant, in Logan v. Williams, parties makes default, and thereupon the parties set76 Ill. 175; Nelson v. Graff, 44 Mich. 433; S. C., 6 N. W. tle on the basis of actual differences in the contract Rep. 872; Wells v. Atkinson, 24 Miun. 161; Kelley v. price and the market value at the time of the breach, Rosenstock, 45 Md. 389; and in Chase v. Whiting, 30 does not render the contract void as a gambling conWis. 544; in which last case the omission of the year of tract. Brua's Appeal, 55 Penn. St. 294; Smith v. November 1st was helped out or supplied by reference | Bouvier, 70 id. 325; Fareirs .v. Gabell, 89 id. $9; to the date of the deed, on the authority of Carpenter Clarke v. Foss, 7 Biss. 540; Gilbert v. Gaugar, & id. 214; v. Dexter, supra, and Brooks v. Cbaplin, 3 Vt. 281. In Williar y. Irwin, 11 id. 57; Sawyer v. Taggart, 14 Bush, Carpenter v. Dexter, stress was laid upon the fact that 727. The mere fact that delivery was to be made at the acknowledging officer was an attesting witness to such time as the seller might elect for the price stipu. the execution of the deed. In Jackson v. Gumaer, 2 lated, did not make the contract invalid apon its face. Cow. 552, and in Thurman v. Camerou, 24 Wend. 87, It has been repeatedly held that where the only under the statute of New York, requiring such words option the seller has is as to the precise time of delivto be used in the certificate, and where it was stated ery, and the legal effect of the agreement is that the therein only that the grantor “was known" to the delivery must be made within a limited period, the officer without the addition of the words “to be the contract is not thereby rendered illegal. Pixley v. person who executed the instrument," the certificate Boynton, 79 Ill. 353; Logan v. Musick, 81 id. 415; Bigewas held sufficient. But these cases may have been low v. Benedict, 70 N. Y. 204; 26 Am. Rep. 523; Story disapproved in Smith v. Garden, supra. From the au- v. Saloman,71 N.Y. 420; Harris v. Tumbridge,83 id.99; thorities therefore as well as reason, the deed and its 38 Am. Rep. 398. Nor does the mere fact that the conattestation may be resorted to, if necessary, to show, tract authorized the seller to exact margins as security together with the certificate, that the officer knew that make the contract illegal within the authorities, if it the person who makes the acknowledgment is the per- was otherwise valid. Hatch v. Douglas, 48 Coun. 116; son who executed the deed, and has substantially so 40 Am. Rep, 154; Corbett v. Underwood, 83 III. certified. Hiles v. La Flesch. Opinion by Orton, J. 324; Uuiou National Bank v. Carr, 15 Fed. Rep. [Decided Jan. 29, 1884.)
438. But although the contract in question did
expressly stipulate for actaal performance, and ASSIGNMENT-VOID - INVENTORY NOT
did not expressly make such differences the TIME.---The statute provides that " within ten days
exclusive subject or object of the coutract, still it after the execution of the assignment the assignor does not necessarily follow that the contract was not shall make and file in the office of said clerk a correct
for a fictitious transaction, but was made with a bona inventory of his assets and a list of his creditors, * * *
fide intention on the part of the seller to deliver the and a failure to make and tile such investory and list article and receive the price, and on the part of the shall render such assignment void, but no mistake buyer to receive the article and pay the price. We are therein shall invalidate such assignment or affect the
not aware of any adjudicated case going to the extent right of any creditor.” The construction which should
of holding that such mere secret intention of one party be given to this section has been considered by the
to the contract, not communicated to the other party, court in two cases : Farwell v. Gundry, 52 Wis. 268;
is sufficient to invalidate such contract. In Barnard S. C., 9 N. W. Kep. 11; and Steinlein v. Halstead, 52
v. Backhaus, 52 Wis. 597, it was clearly and satisfactorWis. 289; S. C., 8 N. W. Rep. 881. Both cases hold
ily proven , that in respect to some of the transactions that the statute is imperative; that a correct inven
none of the parties intended an actual sale and purtory of the assets and list of creditors must be made
cbase of the wheat. As indicated by this court in and filed within the ten days, otherwise the title of Lowry v. Dillman, 18 N. W. Rep. 4, it is only “where the assignee, under the assignment, will be divested, neither party intends to deliver or accept,” that the unless it appear that the want of correctness in the in
contract is illegal. To the same effect are Murry v. ventory or list arose through a mistake or fact or law
Ocheltree, 59 Iowa, 435; S. C., 13 N. W. Rep. 411; made by the assignor. The cases cited by the learned
Clarke v.Foss,supra; Williar v. Irwin,supra; Sawyer v. counsel for the appellant from Minnesota, Kingman v.
Taggart,supra; Williams v.Carr. 80 N.C. 294; Williams Barton, 24 Mino. 295; Swart v. Thomas, 26 id. 141;
v. Tiedemam, 6 Mo. App. 269; Rountree v. Smith, 2 S. C., 1 N. W. Rep. 830, have but little bearing upon
Sup. Ct. Rep. 630; Grizewood v. Blane, 73 Eng. C. L. the construction of our statute. By the statute of that 541. In irry v. Ocheltree, supra, it was held that State, although there is a provision requiring the as- although the defendant intended simply to gamble on signee to make and file an inventory, etc., within ten
the fluctuations of the markets, yet since the evidence days after the assigument, there is no declaration that
showed affirmatively that the transaction on the part the failure to do so shall render the assignment void. of the plaintiffs was a bona fide sale of grain to be See Gen. St. Minn. 1878, ch. 41, $ 24. A conclusion
actually delivered at a future time, they were entitled directly contrary to the decisions in Minnesota was
to recover. Wall v. Schneider. Opinion by Cassoarrived at by the Court of Appeals of the State of New
day, J. York upon a statute in all respects like the statute of
[Decided Jan. 29, 1884.] Minnesota. Julian v. Rathbone, 39 N. Y. 369; Brennan v. Wilson, 71 id. 502. See chapter 348, Laws N. Y.
EMINENT DOMAIN-AWARD-APPEAL NEED NOT BE 1860. Under our statute there is no room for construc
JOINT-IF RAILROAD APPEAL ALL PARTIES IN COURT.tion, as it expressly declares the failure to make and
In this case the railroad compauy moved to Jismiss file a correct inventory shall render the assignment the plaiutiff's appeal from the award on the ground, void. Haben v. Harshand. Opinion by Taylor, J. among others, of a failure of others to join in the ap[As to N. Y. Stat., see Laws 1877, ch. 466. as amended
peal. Held, that there is no duty imposed upon a perLaws 1878, ch. 318.-ED.)
son who is made a party to such proceeding by the [Decided Jan. 29, 1881.]
railroad company to see to it that other parties claim
ing an interest in the premises are made parties CONTRACT-FUTURE DELIVERY-WHEN VALID BONA thereto. That duty is cast by the statutes upon the FIDE OF ONE PARTY-BREACH-DAMAGES.-It seems to company. Section 1849, Rev. St. 1878, clearly probe settled that where a contract for future delivery is vides that one or more of several parties to an award
may appeal from sucb award without joining all the ESTOPPEL-ASSIGNEE MORTGAGE--PAYMENT parties thereto. The words "any party may appeal," MERGER-CREDITOR OF PURCHASER.–The assignee of followed afterward by the words “the appeal shall be a mortgage having purchased the mortgaged premises considered an action pending in court, subject, etc., and assumed tbe payment of the mortgage debt, after* * * and shall be entered by the clerk upon the ward representing the mortgage as valid and subsisting records of the court by setting down the owner or and transferring it as such to a purchaser iu good faith owners of the land for which such award was made, without notice of any defect, is estopped as against and who are parties to the appeal as plaintiffs, and the such purchaser from showing or insisting upon the fact railroad corporation as defendant,” are conclusive of the payment of the mortgage debt, or claiming that upon this question. It is very clear to us that if the the mortgage title has merged in the fee. Jones on statute had intended to require all the land-owners to Mort., $ 947 ; International Bank v. Bowen, 80 Ill. 541; make a joint appeal, the words “and whɔ are parties Powell v. Smith, 30 Mich. 451. (2) Such estoppel exto the appeal" would not have been inserted in the tends to a levying creditor of such purchaser of the statute. Wooster v. Railroad Co., 57 Wis. 311; 8. C., mortgaged premises, claiming to hold the same under 15 N. W. Rep. 401; Watson v. Railroad Co., 57 Wis. a levy made subsequent to the transfer of the mort347; S. C., 15 N. W. Rep. 468. Those who do not gage. Parker v. Crittenden, 37 Conn. 148. In Benson choose to appeal must be deemed to have elected to v. Tilton, 58 N. H. 137, and Bowman v. Manter, 33 id. take such share of the money awarded by the com- 530, there was no concealment of facts and no estopmissioners for the whole of the property taken as their pel. Graves v. Rogers. Opinion by Clark, J. interest in the land entitles them to; and upon the [Decided Dec., 1879. ] trial of the action upon the separate appeal of one party he can only recover damages for such an inter- DECEDENT'S ESTATE-SETTLING WITHOUT ADMINISest or estate in the lands taken as he can establish in TRATION-WHEN BOUND.-All the persons interested himself on such appeal. In this case the railroad com- in a decedent's estate, fairly settling it without adminpany has also appealed from the whole award, and all istration, are bouud by their settlement. Hibbard v. the parties to the original proceeding were therefore Kent, 15 N. H. 516; Clarke v. Clay, 31 id. 393; George in court; and if the company wanted their pres- V. Johnson, 45 id. 456; Mercer v. Pike, 58 id. 286. ence upon the trial of the one appellant's case, an order Woodman v. Rowe. Opinion by Doe, C. J. should have been obtained to try both appeals [Decided Dec., 1879.] together. Washburn v. Milwaukee. Opinion by Taylor, J.
WATER-COURSE-RIGHT TO TAKE FROM ONE SOURCE (Decided Jan. 29, 1884.)
EXCLUDES EVERY OTHER.–The deed from the defendant to the plaintiff describes the water-right conveyed. Its language, construed in the light of surrounding cir
cumstances, shows that the parties understood a right NEW HAMPSHIRE SUPREME COURT
was granted to take water from the fish pond only. ABSTRACT, *
The water running from the reservoir to the Warden
place at the time of the conveyance must have been VERDICT-RULING OF COURT AS TO OPENING AND CLOS- drawn from the reasonable supply reserved for the ING-VENUE CHANGED—IMPARTIAL TRIAL-REMARKS Stone house. The express mention of the right to take OF COUNSEL.—(1) A verdict will not ordinarily be set water from one source excludes by implication the aside on exception to the ruling of the court giving the right to take water from any other. Hare v. Horton, right to open and close to either party unless it appear 5 B. & Ad. 715; Coolidge v. Hager, 43 Vt. 9. The that injustice has been done. Boardman v. Woodman, plaintiff acquired by his deed no other water-right 47 N. H. 120, 143; Hardy v. Merrill, 56 id. 227, 244; than that expressly described. The deed to Ricker was Schoff v. Laithe, 58 id. 503; Day v. Woodworth, 13 competent to show the state of the defendant's title at How. 363, 369. (2) When the venue has been changed the time of his grant to the plaintiff as evidence on the for the purpose of securing a fair trial, that purpose question of the construction of the grant. Warden v. cannot be defeated by irrelevant statements and argu- Balch. Opinion by Bingham, J. ments of counsel addressed to the jury in relation to [Decided Dec., 1879. ] the change of renue calculated to withdraw their attention from the true issue, to excite in their minds a
LIMITATION-PART PAYMENT-NEW PROMISE.—Part prejudice against the defendant which was not based payment of a note on Sunday and an indorsement of on the evidence, and if they had the slightest weight it on the same day are not evidence of a new promise on the mind of a single juror the defendant did not
to remove the bar of the statute of limitations. Clapp have that fair and impartial trial which was his right,
v. Hale, 112 Mass. 368. Whitcher v. McConnell. Opinand which it is the duty of courts to give. The ion by Allen, J. verdict was not a true verdict according to the law and the evidence given to the jury. Tucker v. Henniker, 41 N. H. 317; State v. Foley, 45 id. 466; State v. Smith, NEVADA SUPREME COURT ABSTRACT. 75 N. C. 306; Coble v. Coble, 79 id. 589; Ferguson v. State, 49 Ind. 33; Hennies 7. Vogel, 66 Ill. 401;
MARRIAGE-DIVORCE_" EXTREME CRUELTY"-HUSRolfe v. Rumford, 66 Me. 564. It is neither the duty
BAND COMPLAINANT.-In actions for divorce on the nor the right of counsel to appeal to prejudices, just or unjust, against his adversary, outside the case he has life, limb or health must exist to constitute legal
ground of extreme cruelty, the element of danger to to try. The fullest freedom of speech within the limits cruelty; but actual or threatened physical violence is of the evidence should be accorded to counsel; but it
not necessary to produce this effect; it may be accomis license, not freedom of speech, to travel outside the plished by any continued course of insults and humilirecord, basing his argument on statements not sup- | ations-health and even life may be destroyed thereby. ported by evidence, and appealing to prejudices which The statute contemplates cases where a husband may find no warrant in the case. Brown v. Swineford, 44 be complainant as well as a wife, because he may possiWis. 282.
Hilliard v. Beattie. Opinion by Stan- bly be the weaker party, and because if not be may be ley, J. (Decided Dec., 1879.]
tempted to use violence in self-defense. Richards v.
Richards, 37 Penn. St. 228; Evans v. Evans, 1 Hagg. * Appearing in 59 New Hampshire Reports,
Cons. 35; Butler v. Butler, 1 Pars. Sel. Cas. 344; Forth v. Forth, 36 L. J. 122. Kelly v. Kelly. Opinion by be clearly and satisfactorily established before it can Belkuap, J.
avail, where the evidence otherwise makes out a clear [Decided July 11, 1883.]
case against him. This defense cannot be made out in
a case where the evidence to show the same is, in SALE-DECLARATION OF VENDOR AFTER, INADMISSI
many important particulars, conflicting or uureliable. BLE.—The declarations of a vendor made after a sale
(2) Where a burglary has been committed, and money by him and after he has parted with the possession to
and other property taken, it is not indispensable to the vendee, cannot, for the purpose of impeaching the the conviction of one accused of the crime to trace the bona fides of the transaction, be received in evidence, fruits of the crime to his possession. Convictions of and a verdict obtaiued upon such material illegal testi- this kind are frequently sustained without such evimony cannot stand. A party cannot question the truth dence, especially when the criminating evidence is of his own allegations and attempt in the appellate strong. (3) Unless this court is able to see that the court to show that a sale which he alleges was made at jury, in finding a defendant guilty of the crime a certain date was really made at a different time. charged, have clearly erred in their couclusions of fact, Hirschfield v. Williamson. Opinion' by Leonard, J.
it will not feel authorized to interfere with the ver(30 Kaug. 353; 49 N. Y. 661.—ED.)
dict. (4) Where the evidence of the guilt of one con[Decided July 25, 1883.)
victed of crime is strong and satisfactory, the judgment will not be reversed for mere improper remarks of counsel for the people tending to prejudice the jury
against the accused. Ill. Sup. Ct. Garrity y. People. RECENT ENGLISH DECISIONS.
Opinion by Mulkey, J. (107 III. 162.)
AGENCY-FACTOR'S LIEN-RESTRICTED AUTHORITY.
INDICTMENT-RAPE-WHEN ALLEGATIONS INSUFFIWhere agents were intrusted with the possession of
CENT.-The indictment charged that the accused, for goods for the purpose of sale, and acted under special the purpose and with the intent of having carnal instructions from their principal to sell the goods at a
knowledge, “unlawfully and forcibly detained her," particular price, and to sell in their priucipal's name,
but did not aver anywhere that the deteution was the court held that they did not thereby lose their against her will. Held insufficient, it should have character of factors or the right of lien attaching been alleged, that the detention was against ber will, thereto. Matter of Dixon, L. R., 4 Ch. Div. 103, 137.
for she may have apparently opposed while she really Ct. of App., Nov. 7, 1883. Stevens v. Miller. Opinion inclined to favor the detention. Kentucky Ct. of App. by Cotton and Lindley, JJ. (50 L. T. Rep. [N. S.) 36.)
Wilder v. Commonwealth. Opinion by Hargis, C. J. (4
Ky. L. R. & J. 635.) EASEMENT-WATER SUPPLIED BY PIPES-ENTERING
REPAIR-INJUNCTION - COSTS.- Plaintiff's estate VERDICT-COURT DIRECTED ACQUITTAL - DISCREwas entitled to a supply of water from a distant spring TION-ACCOMPLICE UNCORROBORATED.-Where there by means of pipes passing under the intervening land is no evidence against the accused, except the uucorof the defendant. Held, that the plaintiff's right, car- roborated testimony of an accomplice, it is discretionrying with it the right to enter upon the defendant's ary with the trial court whether to direct an acquittal land for the purpose of cleansing or repairing the or not. Ingalls v. State, 48 Wis. 647; 4N. W. Rep. 785, pipes, the defendant might be restrained from so Mack v. State, 48 Wis. 286; 4 N. W. Rep. 449; Mercer building over the line of pipes as to render the plaint- v. Wright, 3 Wis. 645. Wis. Sup. Ct. Black v. State. ift"s access thereto materially more inconvenient and Opinion by Cassoday, J. (18 N. W. Rep.) costly. Plaintiff brought his action for injunction without first making applicatiou to the defendant.
EVIDENCE-BURDEN OF PROOF-WHETHER TENANT Held, that plaintiff was not thereby disentitled to his OR NOT.-Whether a husband, carrying on a farm costs of action. Ch. Div., Nov. 1883. Goodhart v. owned by his wife and held by her to ber own use, ocHyett. Opinion by North, J. (50 L. T. Rep. (N. 8.] 95.) cupying with her the dwelling-house thereou, taking
the crops annually, and having the general manageAUCTION-FIRST SALE ABORTIVE-ON SECOND MAY
ment of the premises, is tenant, or servant, of his wife, ADD COSTS OF FIRST.-At a sale by auction by a mort
is a question of fact, and on that question there is no gagee the property was knocked down to P., who gave
presumption of law changing the burden of proof his check for the deposit and falsely signed the memu- from the State to the defendant. If the contrary rule randum as purchasing as agent for E. P. was not
is laid down in Albin v. Lord, 39 N. H. 196, 205, it cancalled upon by the auctioneer for any references as to
not be sustained. Bickford v. Daue, 58 N. H. 135; his alleged agency. P.'s check was returned, he bav. Noyes v. Hemphill, id. 536; State v. Hodge, 50 id. 510; ing 110 assets. The mortgagee brought an action for Savings-Bank v. Getchell, ante, 59 id. 281. State v. foreclosure or sale, and claimed to add to his security Hayes. Opiniou,by Bingham, J. (59 N. H. 450.) the costs of the abortive sale. Held, that there had been no negligence on the part of the plaintiff or the auctioneer either in accepting P.'s check or in not requiring any reference, and that the plaintiff was entitled to add the costs of the abortive sale to his secur
INSURANCE LAW. ity. Ch. Div., Nov. 24, 1883. Farrer v. Lacy. Opinion by North, J. (50 L. T. Rep. [N 8. ] 121.)
LIFE-POLICY FOR THE BENEFIT OF CREDITOR-PRESUMPTION OF DEATH-EVIDENCE TO OVERCOME.-Absence of a person alone does not raise a presumption of
his death; but such absence, in connection with surCRIMINAL LAW.
rounding circumstances such as the failure by bis family
and friends to learn of his whereabouts, his character ALIBI-ONUS-BURGLARY- POSSESSION NOT ESSEN- and business relations, together with the fact that TIAL TO CONVICTION-WHERE WILL NOT INTERFERE he was last known to be seen hear the place where a WITH VERDICT-IMPROPER REMARKS OF COUNSEL.-(1) murder is supposed to have been committed, and the It is well settled that the onus of proving an alibi in a reputation in his family and with his friends that he is criiniual caso devolves upon the accused, and it must dead, creates a very strong presumption of death, the