reason assigned is, that many of the most profound constitutional lawyers in the Union, were in congress at the time, and participated in its enactment.
I have bestowed more attention upon the case of Parker v. The Commonwealth than the occasion would seem to justify, were it not that it has been the great source of mischief, and confusion of ideas, upon subjects of this character. But since the supreme court in that state have wisely retreated from the posi tion there assumed, I trust that it will no longer be permitted to vex and confound us here.
The decisions in the supreme court of our sister state are now clearly in favor of the constitutionality of the act under consideration. The case of Cargo of the Brig Aurora v. The United States, (7 Cranch, 382,) is also a strong case in support of the same general principle. In every one of these cases, even that of Parker v. The Commonwealth, the constitutional power of the legislature to enact laws to take effect at a future time, upon the happening of some event which is uncertain and contingent, is fully recognized and asserted. But it seems to me that no authority is necessary to sustain such a proposition. The exigencies of the government, both state and national, must often call for the exercise of such a power by their respective legislative bodies, and it can not be doubted that it is clearly within the large grant of legislative power conferred by our constitution. It has also the sanction of long usage, without dissent or question till recently.
I am therefore clearly of the opinion that the act in question is constitutional, and that the judgment of the county court should be reversed, and that of the justice affirmed.
A mistake in the names of the plain- tiffs is not a ground of nonsuit. The only remedy of the defendant is by a plea in abatement. Barnes v. Perine, 202
1. The rule that a man may lose his own property by mixing it with the property of another, applies only to cases where the property of one can not be distinguished from that of the other, after the admixture. Frost v. Willard, 440
2. How far the admixture of property mortgaged, with other property, will destroy the lien of the mortgage. Dunning v. Stearns, 630
Where the grantee in a deed for lands in fee enters in the lifetime of the grantor and holds both the lands and the deed, for a period of time suffi- cient-if adverse-to bar an entry, in the absence of all other evidence, the character of his possession may be ascertained from the language of the deed; and if that professes to convey an absolute estate in fee, the inference is inevitable that both the entry and the possession were ad- verse. BARCULO, J. dissented. Cor- win v. Corwin, 219
made on the ground that the defend- ant has assigned or secreted his property with intent to defraud his creditors," although according to the words of the statute, is insufficient, unless the facts and circumstances stated therein are enough to justify a belief that the defendant has as- signed or secreted his property with intent to defraud his creditors.
1. It is not necessary that a considera- tion should exist at the time a prom- ise is made. Thus if one party promise another to pay him a sum of money if he will do a particular act, and the latter does the act be- fore the revocation of the promise, the promise thereupon becomes binding, although the promisee does not, at the time, engage to do the act. Barnes v. Perine, 202
2. In such a case the doing the act is a good consideration for the previous promise; and the promise amounts to a request to do the act.
3. On the 21st of April, 1842, a sealed note for $350, made by S. and oth- ers, payable to the defendant B. with an indorsement thereon by B., guar- antying the payment thereof to P. was delivered by P., the owner thereof, to B. "to collect or secure, as soon as convenient or may be;" and B. agreed to pay over to P. $88 of the first money that should be collected or secured, as soon as he should collect or secure the same or any part thereof. But he was not bound to sue the makers of the note unless there should be a reasonable prospect of collecting the same, or some part of it. In an action against B. for his neglect and refusal to per- form the agreement to collect or se- cure the note, and for his refusal to pay over the money due, or deliver up the note, it was proved that when the defendant received the note and executed the agreement he said that he presumed the makers of the note were good, but did not know-that they were good when they moved out of the state, and that he would go and see them immediately. Held
12. Where the plaintiffs had possession of 190 barrels, 40 of which were their property, and under a contract with F. the manufacturer, they had an absolute right to sell the others, retain out of the proceeds what was due them from F., and account to him for the surplus, and the defend- ant, by virtue of an attachment against the goods of F. took the barrels out of the plaintiffs' posses- sion; Held that the plaintiffs were entitled to recover the amount of their advances to F. Frost v. Wil- lard, 440
13. Contracts for the sale of land are, in their nature, executory; and gen- erally, the acceptance of a deed, in pursuance of a contract, is prima facic an execution thereof, and the rights and remedies of the parties are to be determined by the deed, and the agreement thenceforth be- comes void, and of no further effect. But parties may enter into cove- nants collateral to the deed; and cases may arise in which the deed would be regarded as only a part execution of the contract, where the provisions of the two instruments clearly manifest such to have been the intention of the parties. v. Willard,
not look to, nor be connected with the title, possession, quantity, or emblements of the land which is the subject of the contract. If it does so, the execution of the deed, in pursuance of the contract, will operate as an extinguishment of it. ib
16. An agreement was made between the plaintiff and defendant, by which the latter, upon certain payments being made by the plaintiff, was to convey to him a certain quantity of land therein described. And the defendant further covenanted and agreed, that he would redeem that part of the land (amounting to about 17 acres) which had been sold for taxes; and that if it should be redeemed by the plaintiff, the amount paid by him should apply as so much paid on the contract; and that if the land could not be redeemed, a deduction should be made from the contract. Held, that this covenant was inserted for the benefit of the vendee, for the pur- pose of removing an incumbrance then resting upon a portion of the premises, and that it looked solely to the title which the purchaser was to receive. That the defend- ant was legally bound to make the redemption; and the title to the 17 acres having been lost, by his ne- glect to redeem, held also, that the plaintiff was not bound to pay for that part of the land, nor to take a deed including it.
17. Held further, that the vendee hav- ing voluntarily paid the purchase money for the 17 acres as well as for the rest of the land, and de- manded and received a deed for the whole, he could not maintain an ac- tion upon the contract, to recover the value of the 17 acres sold for taxes; his only remedy being upon the covenants in his deed ib
See COMMON CARRIERS. GIFT.
RELIGIOUS SOCIETIES, 2, 3, 4.
1. Aliens are incapable of taking by de- vise, any interest in real property, in this state. But this disability
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