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be considered in measuring the plaintiff's damages; sight of compensation in the endeavor to measure the and it has been received in cases of trespass to the per- desert of punishment. It is not redressing the plaintBon, and even of trespass to property. Birchard v. iff's injury, but it is punishing the defendant's misconBooth, 4 Wis. 67; McNamara v. King, 7 III. 432; Smith duct, and it is doing this with the aid of a jury who in v. Wunderlich, 70 id. 426; Bell v. Morrison, 27 Miss. 68; respect to it are held under none of the restraints Rowe v. Moses, 9 Rich. 423; McConnell v. Humpton, 12 which govern judicial action when pnnishment is the Johns. 234. Its reception is generally put upon the ex- avowed object of the proceeding. The anomaly that a press ground that one purpose of the suit in such cases jury may have liberty to puuish at discretion for a tort is to punish the defendant, and that such damages as when, if the act were a crime, the penalty would be might be severe punishment to a poor man would be carefully limited by law, and that they may award the no punishment at all to a man of great wealth. In ac- penalty they agree upon to a private suit, or to swell tions for seduction the plaintiff has sometimes been al- his actual damages, has never received much countelowed to give evidence of the defendant's pecuniary nance in this State. Compensation for the wrong done circumstances. Grable v. Margrave, 4 Ill. 372; S. C., 38 has always been held to be the object to be attained; Am. Dec. 88; White v. Murtland, 71 III. 250; Applegate and while all circumstances of aggravation have been v. Ruble, 2 A. K. Marsh. 128; McAuley v. Birkhead, 13 received in evidence, the reception has been for the Ired. Law, 28; Clem v. Holmes, 33 Grat. 721; 8. C., 36 very sufficient reason that the injury to the plaintiff Am. Rep. 793; Lavery v. Crooke, 52 Wis. 612; 9 N. W. was the greater in consequence thereof, and that his Rep. 599; S. C., 38 Am. Rep. 768. But in England it is compensation ought to be in proportion. The increased held that the pecuniary circumstances of defend damages are sometimes spoken of as exemplary, as in a ant are not to be proved in suits for seduction (Hodsoll sense they are, but in a less misleading and more accuv. Taylor, L, R., 9 Q. B. 79),and Blackburn, J., explains rate sense they are compensatory. Allison v. Chandler, Andrews v. Askey, 8 Car. & P.7, which has been sup- 11 Mich. 542; Detroit Post Co. V. McArthur, 16 id. 47; posed to lay down a different rule, and shows that the Welch v. Ware, 32 id. 77; Elliott v. Van Buren, 33 id. judge in that case pointedly omitted to include the de- 56; S. C., 20 Am. Rep. 668; Livingston V. Burroughs, fendant's means as an element of damages. In Iowa 33 Mich. 511; Friend v. Dunks, 37 id. 25; Bennett v. such evidence has been excluded in actions for assault | Beam, 42 id. 346; 4 N. W. Rep. 8; 8. C., 36 Am. Rep. and battery (Hunt v. Chicago, etc., R. Co., 26 Iowa, 364; 442. Guengerech v. Smith, 34 Iowa, 348), and also in suits for In this case the plaintiff, if sbe established her case, seduction. West v. Druff, 55 Iowa, 335; 7 N. W. Rep. should recover such damages as will fairly compensate 636.

her for the wrong she has suffered. But we do not see In Dain v. Wycoff, 7 N. Y. 191, 193, Gardner, J., in how the wealth of the defendant can add either to the an action for seduction, condemns such evidence in shame and mortification she must suffer or to the invery pointed language. The suit in that case was jurious consequences in after life. If wealth could be brought by the master nominally for loss of service, as inquired into at all, the inquiry could not well go bewas formerly the case here. “The elementary writ- yond general reputation; for a knowledge of actual ers," he says, “concur in saying that damages beyond wealth involves an inquiry into details which in such the mere loss of service may be given for the dishonor of a suit would render necessary a collateral investigathe plaintiff and his family and for the injured feelings. tion more troublesome in many cases than the princiBut those damages are notwithstanding intended as a pal issue. But proof of one's wealth by general repucompensation for an actual though indefinite injury to tation would be only a part of the showing of his which the plaintiff has a right, whatever may be the standing in the community; and the plaintiff in this circumstances of the defendant, and upon principle, case bad the full benefit of this showing without obto nothiug more. If the defendant cannot show his jection. She proved that the defendant was a consid. poverty in mitigation of damages there is no reason erable farmer when he invited her to his house, why the plaintiff should aggravate them by proof of and continued to be such farmer until after the wrong his wealth.” And he adds with much good sense: was made public, and his importance in the commu“There can be no reason why twelve men, wholly irre- nity was apparent. To follow this showing with evisponsible, should be allowed to go beyond the issue be- dence that he admitted his property to amount to a certween the parties litigating, and after indemnifying tain sum was to suggest to the jury the idea of & dithe plaintiff for the injury sustained by him, proceed, vision of this property between the defeudant and the as conservators of public morals, to punish the defend- woman who claimed to have been injured by him. ant in a private action for an offense against society." This is not a very safe idea to suggest to a tribunal

In Illinois it has been held in one case that the pov- supposed to act with discretionary authority, and erty of the plaintiff, as well as the wealth of the de- whose feeling may be excited by a pathetic story, unfendant, may be an element in aggravation of dama- der the influence of which they act immediately. The ges in cases of malicious torts. McNamara v. King, ñ evidence ought not to have been received. Ill. 432. But there could be no general rule to that The defendant offered to show that his general repueffect. See Chicago v. O'Brennan, 65 Ill. 164. It has been tation for chastity and purity of life had always been decided in that State that evidence of the pecuniary good, but the court excluded the evidence. This is circumstances of one of two joint defendants must be complained of, but no authority in support of its rerejected, because its tendency, if received, would be ception is cited. This absence of authority furnishes to increase the damages as against the defendant, a very strong if not conclusive argument against the whose means were less, and so to work injustice. To evidence. Good reputation is a very obvious defense ledo, etc., R. Co. v. Smith, 57 Ill. 517. This difficulty in in such a case, if it is admissible, and the failure to rethe application of the rule ought to give very satisfac- sort to it hitherto must be referred to a general undertory evidence of its unsoundness, for the rule, if standing that the courts were not at liberty to receire founded in justice and reason, ought to be, and would it. In criminal cases the defendant may prove good be, as applicable in one case as another. The plaint- reputation for what it is worth; but the weight of it ifr"s injury is no greater and no less because two per- in his favor would be much more conclusive in some sons united in committing it, and the measure of his cases than in others. In cases of alleged seduction it redress ought not to depend on a circumstance unim-would be likely to have less importance than in cases portant to the injury. When it is made involving accusations of wrong by violence, for a to do so it is because the court, while nomi- woman would naturally be more on her guard in the nally proceeding to give compensation, is really losing case of a notorious character than when the man was one in whom the community confided. Indeed seduc- corporate authority the majority rules: beyond this tion is often the result of an intimacy originating in they have no right to go, and one may insist upon mutual respect, and which has become dangerous be- stopping at the limits. Colman v. Eastern Cos. R. Co., fore the parties are fairly aware of it, and while repu- | 10 Beav. 1; Salomons v. Laing, 12 id. 339; Beman v. tation on both sides is unblemished. We think that Rufford, 4 Eng. Law & Eq. 106; Stevens v. Rutland & in this regard the court committed no error.

B. R. Co., 29 Vt. 545. (2) Those who become memSome further questions of evidence which are not like- bers of a corporation consent to the rule of the majorly to arise in the same way again are passed by without ity within the powers of the corporation, but not benotice. Various instructions upon the evidence were yond. As the right to restrain going beyond such asked of the trial judge which coucerned the weight powers depends upon the want of consent, if the conand credibility of the proofs merely, and which he was sent is given the right ceases. Therefore when such at liberty to deal with as he saw fit. Too much is fre- restraint is sought, due diligence, in the proper direcquently asked of the trial judge in the line of instruction, to prevent what is sought to be restrained, must tions when no question of law is involved, and we are be shown as a part of the title to relief. Kent v. Jacknot incliued to favor the practice.

son, 14 Beav. 367; Gregory v. Patchett, 33 id. 595. The The only remaining question is the one made under exercise of the rights of a stockholder to influence corthe statute of limitations. The suit was not begun porate action by vote and speech in corporate meetuntil more than six years had elapsed from the time ings, when opportunity was presented or could be of the alleged seduction. The suit, under the statute, had, would lie in the proper direction. Until such might have been brought by some relative for the means should be exhausted or prevented, there would plaintiff (How. St., $ 7779), but if it had been it would be no real oppression of the minority. Hawes r. Oakhave been barred. But the person whose family rela- land, 104 U. S. 450. Cir. Ct., S. D. New York, Jan., tion to the plaintiff was such as naturally to indicatę | 1884. Leo v. Union Pacific R. Co. Opinion by him as the one to bring suit for such an injury on the Wheeler, J. plaintiff's behalf was the defendant himself, and gross TRUST-TAKING TITLE FOR OTHER-PLEADING-REinjustice might result from any rule of law which should SPONSIVE ALLEGATIONS-CONCLUSIVENESS.- A parol make his own inability or unwillingness to take the agreement by which one of several joint purchasers of steps called for by the relation operate to extinguish a land takes the title in trust for the others, imposes right of action for his own misconduct. We have de

upon the grantee an express trust which does not fall cided that in these cases the woman may sue in her within the meaning of a statute of limitations fixing a own name (Watson v. Watson, 49 Mich. 540; 14 N. W. time for the enforcement of constructive trusts. The Rep. 489), and when she is an infant at the time of the rule that responsive allegations in the answer to a bill seduction, and nobody acts for her during her minor- in equity are conclusive evidence in favor of the reity, there is the same equity in this case as in any spondent, unless overcome by the testimony of two other, that she be allowed a reasonable time after com- witnesses or their equivalent, cavnot be invoked when ing of age to decide upon seeking redress. The statute the answer is upon information and belief, or is dis(IIow. St., $ 8719) allows six years for the purpose, and credited by circumstances. The reason of it is, as the action was therefore not barred.

stated by Chief Justice Marshall in Clark's Ex'rs v. For the errors which have been pointed out there Van Riemsdyk, 9 Cranch, 160, that “the plaintiff calls must be a new trial.

upon the defendant to answer an allegation he makes, Campbell and Sherwood, JJ., concurred.

and thereby admits the answer to be evidence. If it Mr. Justice Champliu did not sit in this case.

is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the bal

ance of proof be not in his favor, he must have cirUNITED STATES CIRCUIT COURT AB

cumstances in addition to his single witness in order STRACT.*

to turn the balance." And he affirms that the weight REMOVAL OF CAUSE-REPLEADING-PRACTICE-DIS

to be given to the answer is affected by the same tests TINCTION BETWEEN LAW AND EQUITY IN.-(1) Where which are applicable to a deposition, as for instance, a suit at common law has been removed from a State

whether the respondent speaks from belief or knowlcourt in which it has been conducted under the forms edge. Both are only evidence, and must be weighed of procedure belonging to a court of equity, the Con- in the same scales. This qualification of the weight to stitution and laws of the United States require that be given to an answer upon information and belief there must be a repleading to conform to the practice is also strongly stated in the note to Mr. Bispham's of the Federal court as a court of law. (2) This re

Adam's Eq., on p. 693, on the authority of numerous pleading may require more than one suit, and on both American cases. Cir. Ct., W. D. Penn., Sept., 1882. sides of the docket, but this is unavoidable in a juris- Berry v. Sawyer. Opinion by MoKennan, J. diction keeping up as persistently as the Federal laws do the distinctions between law and equity; and the PENNSYLVANIA SUPREME COURT force and effect of the proceedings in the State court

ABSTRACT. are preserved by moulding them to suit the require. ments of the case in the process of distribution be- NEGLIGENCE-FIRE-ESCAPE- OWNER.”—Under the tween the two jurisdictions. (3) It is only by this provisions of the act of June 11, 1879 (P. L. 128), the construction of the removal acts that the distinctions owner in fee of a factory is not respousible to a person between law and equity jurisdiction can be observed employed in such factory for an injury occurring by in practice, aud that uniformity secured which it is reason of failure to provide a fire-escape, when at the plainly their intention to enforce. There cannot be time of the injury the property was leased and the lesone practice for causes removed from the State courts see was actually in possession. The owner" contemand another for suits originally commenced in the plated by said act, upon whom is placed the burden of Federal court. Cir. Ct., W. D. Termu, Nov., 1883. providing the fire-escape and the liability in case there Whittenton Manfg. Co. v. Memphis, ctc. Opinion by is a failure to provide the same, is the person in actual Hammond, J.

poseession and occupancy of the premises used as a CORPORATION-RULE OF MAJORITIES—RIGHTS OF

factory at the time the injury in question is inflicted. MINORITY.-(1) In corporations within the scope of the

Schott v. Harvey. Opinion by Paxson, J. (See 26 Am.

Rep. 562 n. ; 21 Eng. R. 37.-ED.] *Appearing in 19 Federal Reporter.

[Decided Jan., 1884.]

NOTICE-POSSESSION-RESULTING TRUST.--In a scire Coombs, 15 Norris, 430. Pierce v. Black. Opinion by facias zur mortgage the terre-tenant defended on the Paxson, J. ground that the mortgagor had bought the premises [Decided Feb., 1884. ] with her money, fraudulently taking title in his

WILL-DISTRIBUTION-PER STIRPES.— A died in name instead of hers, and subsequently making the 1873, leaving a daughter, B., and a grandson, C., “only mortgage in question. It appeared that the terre-ten- heir” of a deceased daughter D. By the first clause of ant had actually entered upon the' premises immedi- bis will he devised and bequeathed a house, furniture, ately upon the purchase thereof by the mortgagor, and etc., to B. By the second clause he bequeathed $30,000 that she was actually residing thereon at the time the

to C. “in addition to” what he should thereafter give mortgage in suit was given. Held, that this coustitu

him. By the third clause he directed that his residuted a good defense, as the mortgagee was under the ary estate fshould be “equally divided between the circumstances bound to take notice of the resulting heirs of the said B. who might be living at the time of trust in favor of the terre-tenant. Equitable titles, rest

said division and said C.,e:ch to share and share alike." ing in parol, are always more or less insecure, even Held, that the residue should be divided per stirpes. It when the beneficial owner is in actual and exclusive is rather difficult under the authorities to indicate any possession; and the general principle undoubtedly is fixed line between language which shall establish a per that such possession, when distinct and unequivocal, capita distributioh on one side, and a per stirpes disputs purchasers and mortgagees on inquiry, and thus tribution on the other. That in the present case the visits them with notice of the occupant's title. Since whole will sufficiently shows the testator intended a per Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35, this princi- stirpes distributiou we are well satisfied. This conclu ple has been recoguized in many cases, among which sion is sustained by Lackland v. Downer, 11 B. Mon. are the following: Billington's Lessee v. Welch, 5 Bin- 82; Walker v. Griffiv's Heirs, 11 Wheat. 375; Alder v. ney, 129-32; Sailor v. Hertzog, 4 Whart. 259; Woods | Beall, 11 Gill & Johnson, 123; Baskin's Appeal, 3 Barr. v. Farmere, Ÿ Watts, 382-4; McCulloch v. Cowher, 5 | 304; Minter's Appeal, 4 Wright, 111; Risk's Appeal, 2 W. & S. 427-9; Patton v. Hollidaysburgh, 4 Wr. 206; P. F. Smith, 269; Young's Appeal, 2 Nor. 59. The apMeehan v. Williams, 12 id. 238; Jamison v. Dimmock, plication of these authorities to the facts before us is et ux., 14 Norris, 52-6; Hottenstein v. Lerch, 12 Week. in no wise impaired by Dible's Estate, 32 P. F. Smith, Not. 4. While the principle is differently stated in 279. Osburn's Appeal. Opinion by Mercur, J. (See 36 some of these cases, it is substantially the same in all. Am. Rep. 716; 29 id. 688; 23 Eng. R. 513.-ED.) Iu Woods v. Farmere, supra, Chief Justice Gibson, [Decided Nov., 1883.) speaking of the unlimited effect given by the Euglish courts to possession as an index co title, says: “The duty of inquiring into the foundation of a notorious MINNESOTA SUPREME COURT ASTRACT. possession is not a grievous one, and it is soon performed. Why then should a purchaser be suffered to

ADMINISTRATOR-PROPERTY RECEIVED BY, AS INDIact on probabilities as facts at the risk of any one but

VIDUALESTATE NOT LIABLE-COVENANT FRAUDU. himself when a moment's share of attention would

LENT REPRESENTATION.—The complaint in an action prevent miscouception or loss? The doctrine of con

was so framed that it did not disclose whether it was structive notice is undoubtedly a sharp one; but it is intended to charge the defendant in a representanot more so in regard to a notorious possession than it tive capacity as administrator of an estate or personis in regard to a registry. Nor is it less reasonable; for

ally. Before the trial, in deciding a motion for judgit certainly evinces as much carelessness to purchase ment on the pleadings, the court construed the action without having viewed the premises as it does to purchase without having searched the register.” In the declared this as its construction. The plaintiff, merely

as being against the defevdant as administrator, and language of Woodward, P. J., adopted by this court in

excepting to the decision of the court, proceeded to McColloch v. Cowher, supra: "The possession of land

trial without indicating his election to prosecute the is notice to the world of every title uuder which the

action against the defendant personally, and without occupant claims it unless he has put a title on record

offering any amendment to cure the equivocal characinconsistent with his possession. When, as in this ter of the complaint. Held, that the plaintiff should case, an individual is in possession under uo recorded

not afterward be heard to say that the action was title, his possession is notice of every title which he can

against the defendant personally. (2) The mere delivset up to protect himself, sufficient at least to put a pur

ery of property to one who is the administrator of an chaser on inquiry." A full discussion of the subject by

estate, the estate not being entitled to it, does not our brother Green may also be found in Hottenstein

make the estate responsible for such property to the v. Lerch, supra. The constructive notice spoken of in

person entitled to it, it not appearing that the propthese cases is in the nature of evidence of notice, the

erty was treated or used as assets of the estate, or that presumptions of which are so violent that they cannot

the estate received any benefit from it. (3) Represenbe controverted. It is that notice which the law im

tations of freedom from incumbrance made without putes to a person without regard to whether he has fraud during the negotiations for the sale of real propactual knowledge or not; in other words, when inquiry

erty are merged in the deed of conveyance by which becomes a duty the means of knowledge which it af

the sale is consummated. That embracing no covefords is regarded as the legal equivalent of actual no

nants respecting incumbrances, uone cau be shown. tice. Rowe v. Ream. Opinion by Sterrett, J. (See 45 Rawle, Cov. (4th ed.) 565, 566; Dart, Veud. (5th ed.) Am, Rep. 188.-Ev.)

777; Howes v. Barker, 3 Johns. 506; Houghtaling v. (Decided March, 1884.)

Lewis, 10 id. 297 ; Share v. Anderson's Ex'rs, 7 Serg. & JUDGMENT-SECURITY-NEW LOAN-CREDITORS.-(1)

R. 43; Coleman v. Hart, 25 Ind. 256. No covenants are A judgment, although paid in full, may by contract be

implied. Gen. Stat. 1878, ch. 40, $ 6. (4) For the fraudkept alive to secure a new loan, and parol evidence of ulent representations of au administrator the estate is such contract is admissible in an action between the not responsible in damages. Fritz v. McGill. Opinion parties. (2) While such a contract is void as to subse by Dickinson, J. quent lien creditors of the debtor, he himself is estop- [Decided March, 1884.] ped from denying it. Anderson v. Neff, 11 8. & R. 208; NEGLIGENCE-CONTRIBUTORY-QUESTION OF FACT('raft v. Webster, 4 Rawle, 255; Irwin v. Tabb, 17 S. & HIGH RATE OF SPEED OF RAILWAY TRAIN-EXPERT R. 419; Scheuk's Appeal, 9 Casey, 371; Mitchell v. EVIDENCE.-The plaintiff driving upon a public street

across a railroad track was struck by a train of cars, such a stipulation by an extension of the privilege. The the approach of which he did not discover until imme- time limited for acceptance or payment is in such case diately before he drove his horses across the track. part of the contract or option, and equity cannot inThe view of the track iu both directious was partially terfere unless in cases where its jurisdiction can be obstructed, the evidence going to show that the properly invoked on the ground of fraud or mistake, plaintiff was mindful of the danger and watchful, ac- which is not alleged here. Nicholls v. Maynard, 3 Atk. cording to his reasonable judgment, to avoid it; that 519; Adams, Eq. *108, 109. It differs from the case of at the time when he might first have seen or heard the penalties which are annexed to contracts to secure their train he had reason to suppose that no train was com- performance, or from the case of a forfeiture of some ing from that direction, while his attention to the estate or interest already acquired, and from which a track in the opposite direction was more apparently party may seek relief on equitable terms. Robinson v. necessary; that the cars were even close at hand, run- Cropsy, 2 Edw. Ch. 147; Wells v. Smith, T Paige, 22; ning at a high rate of speed, and he in a place where he Davis v. Thomas, 1 Russ. & M. 506; Kerr v. Purdy, 51 could not safely turn his horses, por hold them before N. Y. 629; People's Bank v. Mitchell, 73 id. 406. The the passing train, it is considered negligence was not fact that defendants paid considerable sums to plaintconclusively imputable to the plaintiff by the law, but iff to secure the optional privileges of purchase constithat it was for the jury to determine whether the plain- tute no ground for an equitable accounting and relief. tiff was negligent. We cannot, as an imputation of the Leonard v. Morgan, 6 Gray, 412; Ketchum v. Evert. law, pronounce his conduct to have been negligence. son, 13 Johns. 359. The payments were made upon a Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 72; Con- valuable consideration, and the failure to consummate tinental Imp. Co. v. Stead, 95 U. S. 161. (2) To run a the purchase according to the terms of the agreement locomotive and train of cars, which cannot be readily was not the fault of the plaintiff, but the fault or misstopped, at a high rate of speed, and without any sig- fortune of the defendants. The plaintiff is not enforcnal by bell, whistle, or otherwise, across a much-trav- ing a forfeiture. He is not rescinding a contract alelled public street in a village, where the crossing is ready made. He is not in the position of a party indangerous to travellers by reason of obstructions cou- voking equitable relief, entitling the court to impose cealing the approach of trains, no excuse appearing for any conditions. He stands upon the legal title with the omission to give signal of its approach, is negli- which the court finds he is invested, and the continued gence, although there exists no statutory requirement possession of defendants must be referred to the lease respecting the giving of such signals. Phil. W. & B. and not to the proposed purchase, which was never R. Co.v. Stinger, 78 Penn. St.219, 225, 227; L.& N.R.Co. consummated. Stewart v. Murray, 13 Minn. 426 (Gil. v. Com., 13 Bush, 388; Phil. & Trenton R. Co. y. Hagan, 393). Steele v. Bond. Opinion by Vandenburgh, J. [See 47 Penn. St. 244; Roberts v. C. & N. W. R. Co., 35)Wis. 17 Am. Rep. 97.-En.] 680. (3) It was not error for the court to charge that [Decided April 3, 1884.) one who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, hare regard to the probable or apprehended con- RHODE ISLAND SUPREME COURT duct of such other persons and to the presumption that

ABSTRACT.* they will act with reasovable caution, and not with culpable negligence. Ernst v. Hudson R. R. (0., 35 N.

DEED-REPUGNANT CONDITION.-A. executed and Y.9: Reeves v. Delaware, L. & W. R. Co., 30 Penn. St.

delivered a deed to his son B. purporting to be made in 451; Langhoff v. Milwaukee & P. du C. Ry. Co., 19 Wis.

consideration of a life lease of eveu date with it, of a 489; Kennayde v, Pacific R. Co., 45 Mo. 255. The

reservation contained in it, and of love and affection. court instructed the jury to disregard the opinions of

In it he conveyed certain described realty to B., “his expert witnesses, based upon hypothetical statements

heirs and assigns forever," and then provided if “ B. of facts, if the jury should find the hypothesis to be not

should die without having any lawful heirs of his own in accordance with the facts. Held, no error. The

body then, and in that case, my daughter N. * plaintiff having been a farmer for many years, and en

shall come in as equal heir of the aforesaid described gaged iu carrying on a farm, was competent to testify

and granted premises; that is to say, equal with my as to the value of his own labor. It was a proper sub

two daughters A. aud J.

* The habendum was ject for the opinion of witnesses. Loucks v. Chicago,

to B., his heirs and assigns forever, to his aud their etc. Opiniov by Dickinson, J.

use and behoof forever.” The deed contained a cove[Decided March, 1884.]

nant of warranty to " B., his heirs and assigns against CONTRACT-TIME, ESSENCE OF-WHEN COURT WILL NOT the lawful claims and demands of all persons.” Held, INTERFERE.-Where a lease contained a stipulation that the provision in the deed in favor of the daughters grauting to the lessees “the right and privilege to pur- was bad as a reservation, not being in favor of the chase the leased premises of and from the party of the grantor. Young, Petitioner, 11 R. I. 636. Held, furfirst part at any time before the expiration of this lease ther, that the provision in the deed in faror of the for $11,117, to be paid down in cash to the party of the daughters was repugnant to the grant, and thereforo first part upon the demand of a deed prior to the expi- null and void. Littlefield v. Mott. Opinion by Durration of this lease, held, that payment of the stipu- fee, C. J. lated sum or tender of the same within the time lim.

CONTRACT-EVIDENCE-STATEMENT MADE AFTER, ited was an essential condition to the consummation of

INADMISSIBLE.-In a single, undivided and continuany binding contract of sale. It was plainly the mean

ous negotiation between A, and E., A. at one time reping of these agreements that the privilege of purchas

resented one principal and at another time a different ing the property should not remain open after the ex

one. Held, that A., notwithstanding the change of piration of the time limited. Time was made essential

principal, was entitled to assume that all statements of upon the face of the writings. It amounted substan- fact made to him by B. were repeated so long as they tially to a written proposition or offer to sell upon the

were not corrected. The negotiations resulted in a proposed terms. The assent or act of acceptance, written contract signed by the parties. Held, that whether by payment or the fulfillment of some other statements made by B. after the contract were inadcondition, was necessarily to be made within the time

missible to show what influenced A.'s principal to sign limited; otherwise no contract could be consummated, Com. Cont., $ 387. Equity cannot vary the terms of

*To appear in 14 Rhode Island Reports.

* *

the contract, but were admissible to corroborate evi- | ing freight at a private wharf, without the consent and dence as to what statements B. made before the con- against the protest of the owner of the wharf, thereby tract, it being admitted that B., before and after the seriously interfering with his business of sawing, recoutract, made statements as to the same matters, and ceiving and delivering lumber and ties, and they it being shown that the subsequent statements were threatened to continue this practice, held, that the asked and given as a repetition and confirmation of the wharf owner might maintain injunction. The State preceding. See 13 R. I. 316. Fuller v. Atwood. Opin courts have jurisdiction of all trespasses committed ion by Carpenter, J.

upon real estate within the limits of the State. The STOCK-LEVY UNDER EXECUTION —

fact that the real estate in question is a wbarf does

SALE-TRANSFER ON BOOKS.-(1) A statute provided that when an execu

not make it a matter of admiralty jurisdiction and so tion is levied upon corporate stock “the said stock or

cognizable alone in the courts of the United States.

State Savings Bank v. Kercheval, 65 Mo. 682; Damshares, or so much thereof as shall be necessary, shall be advertised and sold in the same manuer as other

schroeder v. Thias, 51 id. 100; Echelkamp v. Schrader,

45 id. 505; Hayden v. Tucker, 37 id. 214; McPike . personal property levied on by execution, and a deed or deeds thereof given by the officer aforesaid sball

West, 71 id. 199; Wright v. Moore, 38 Ala. 593; Watson vest in the purchaser all the right, title and interest of

v. Sutherland, 5 Wall. 78. Turner v. Stewart. Opinion the defendant in such shares so sold as aforesaid, and

by Martin, Comr. shall be recorded by the recording officer of such com- PRIORITIES BETWEEN PARTNERSHIP AND INDIVIDpans." Held, that the officer's deed vested in the pur- UAL CREDITORS.-A creditor of one partner only, as to chaser all the defendant's title, and that a transfer on the separate property of such partner, has no priority the corporation books was superfluous. (2) A pur

over a partnership creditor, where there are no firm chaser at an execution sale of corporate stock, after re- assets and the other partners are insolvent. Phelps v. ceiving his deed from the officer, filed a bill in equity MoNeely, 66 Mo. 554; Hilliker v. Francisco, 65 id. 598; against the corporation to compel it to transfer the Wiles v. Maddox, 26 id. 77; Eaton v. Walsh, 42 id. 272; stock on its books. The bill did not charge that the Thornton v. Pigg, 24 id. 246; Kansas City Sav. Asso.y. deed had been presented for record and the record re- Mastin, 61 id. 435; Wilcox v. Todd, 64 id. 388. Shackelfused. Held, that the bill stated no case for equitable ford v. Clark. Opinion by Martin, Comr. relief. Lippitt v. American Wood Paper Co. Opinion by Durfee, C. J.


NEGLIGENCE-BINS NEAR RAILROAD TRACK.-It is chap. 41, section 2, exempts from taxation “buildings,

negligence on the part of a railroad company to perfor free public schools, buildings for religious worship mit bins to stand near its track when it was using and the land upon which they stand and immediately

open cars, the step on the side of which came within surrounding the same, to an extent not exceeding one

two inches of the bins. Plaintiff had a right to assume acre, so far as said buildings and land are occupied and

that the defendant would perform its duty in guardused exclusively for religious or educational purposes." | ing the safety of its passengers and servants, and it Held, that a building for religious purposes is exempt

was only because it bad failed to do so in this instance from taxation although used for educational purposes

that the danger was encountered. The plaintiff had had so long as the use is merely incidental or occasional,or

no warning, except to look out a little for the switch, so long as the use, if habitual, is purely permissive and

until the bins were so near that it was impossible to voluntary, and does not interfere with the use for re

avoid striking them; and why should he have looked ligious purposes, there being no alienation of the build

for dangers whose existence he could not have anticiing in whole or part for educational uses as e. g., by pated ? It is not claimed that the caution in respect to lease. (2) Real estate is by statute assessed in distinct

the switch was a caution against striking against it; parcels. The tax on each parcel is a distinct tax, and

more likely it referred to a jolting motion in passing if void for illegality and paid under protest may be re

it. The cases of Hickney v. Boston, etc., R. Co., 14 covered back in assumpsit. American Bank v. Mum

Allen, 429, and Camden, eto., R. Co. v. Hoosey, 29 ford, 4 R. I. 478; Greene v. Mumford, 5 id. 472. See

Penu. St. 492; 44 Am. Rep. 120, upon which the dePub. Stat. of R. I., chap. 42, $$ 4, 8; Young v. Joslyn,

fendant has greatly relied, we do not think are neces13 R. I. 675. St. Mary's Church v. Tripp. Opinion by

sarily inconsistent with these views. Dickinson F. Durfee, C. J.

Port Huron, etc. Opinion by Cooley, C. J.



CUMSTANTIAL EVIDENCE-HUSBAND AND WIFE.-(1) DAMAGES-MALICIOUS PROSECUTION.-In an action Where a party asserts that an instrument was obfor malicious prosecution, the jury, if they find for tained by undue influence, the law excluding all prethe plaintiff, may, but they are not bound to allow sumption of undue influence over a person of sound him counsel fees paid in defending against the prose- mind, he is required to prove affirmatively that it was cution. Bradlaugh v. Edwards, 11 C. B. (N. S.) 377; 80 obtained; but in order to do this he should be perColyer v. Huff, 3 Bibb, 34; Mostin v. Coles, 7 Hurl. & mitted to show the previous relations of the parties N. 872. Gregory v. Chambers. Opinion by Philips, within a reasonable time. In most instances this Comr.

proof would be made by circumstantial evidence, and TRESPASSES ON REALTY-INJUNCTION-ADMIRALTY

the exclusion of such testimony in this case is error. JURISDICTION.-To maintain injunctiou against tres

This proof must be made out in most if not in all in.

stances by circumstantial evidence; by proof of facts pass upon property real or personal, it is not necessary that the defendant should be insolvent or the wrong

and circumstances, which standing alone, might prove irreparable. The statute gives the right wherever an

nothing, but when taken together, and in relation to adequate remedy cannot be afforded by an action for

other facts, might tend to satisfy a jury of the exisdamages. Rev. Stat., $2722. Thus where the owners

tence of the principal fact of undue influence. Beauof a steamboat were in the constant habit of discharg

bien v. Cicott, 12 Mich. 459; Porter v. Throop, 47 id.

313, 326; S. C., 11 N. W. Rep. 174. (2) The undue in*To appear in 78 Missouri Reports.

fluence which operates to defeat a will must be such as

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