"from No. 12 Atlantic dock." A por- tion of the wheat required to fill this order was taken from a lot of wheat belonging to the plaintiff, stored with J. W. & Co. in building No. 11 Atlantic dock. It was taken by the direction of J. W. the store-keeper, and not by the direction or authority of D. & G. or their principals, C. & B., and there was no proof that either of them knew that the wheat deliv- ered to H. G. & Co. had not been taken from building No. 12, until after the purchase money was paid by H. G. & Co. to D. & G. and by them paid over to their principals, C. & B. In an action by the plain- tiff against D. G. C. & B. to recover the value of the wheat so taken from No. 11 as for a conversion, on the ground that D. & G. without the authority or consent of the plaintiff, took the plaintiff's wheat from the storehouse as the property of C. & B. and sold the same and paid over the proceeds of the sales to C. & B. without the authority, knowledge or consent of the plaintiff; Held, that the action would not lie. Cobb v. Dows, 230
To maintain an action for the con- version of goods, under such circum- stances, the plaintiff must do some- thing more than establish his right of property. He must show that the goods were taken by the defend- ants, or that they have done some other act which in law will amount to a conversion.
But the proof need not show a tor- tious taking, or that the defendants acted in bad faith. If it appears that they obtained the goods fairly, from a person whom they had rea- son to think was the true owner; or if they acted under a mistake as to the plaintiff's title, or under an hon- est but mistaken belief that the property was their own, they are still liable to the true owner, if their acts in regard to it amount to a con- version; as if they have taken the property into their own hands, or disposed of it to others, or exercised any dominion whatever over it. ib
1. A creditor ought not to be required, as a condition to entitle him to costs,
to ask executors to refer a claim af- ter the latter have rejected it, as un- just and not due. Fort v. Gooding, 388
2. Where a suit was brought against executors, upon a claim for personal services rendered the testator, and the defendants unnecessarily sever- ed in their defenses, employing three separate attorneys, thereby increas-2. ing the labor of the plaintiff's attor- ney threefold, and the trial of the cause occupied sixteen days; Held that it was an "extraordinary case," justifying an extra allowance under 308 of the code. ib
See EXECUTORS, &c. 2, 3.
1. Although natural love and affection, between near relatives, is a sufficient consideration to support a deed, or an executed contract, yet it will not render obligatory a mere covenant or promise, or executory agreement. Duvoll v. Wilson, 487
3. Where, upon the trial of an indict- ment, no proof is given, as to the general character of the defendant, the law assumes that it is of ordi- nary fairness. Ackley v. The Peo- ple, 609
2. Accordingly, where a father, in con- sideration of natural love and affec- tion, executed a deed to his grand- children, which contained a cove- nant that the grantor was seised of a good and indefeasible estate of in- heritance, in the premises conveyed, 5. free and clear of all incumbrance, and it turned out that the premises were, at the date of the deed, sub- ject to a mortgage executed by a previous owner; Held that the gran- tees could not maintain an action against the executors of the grantor, to compel them to pay off that mortgage, out of the assets of their testator.
A prisoner on trial may show what his reputation is, and then the ques- tion is open to the prosecution, and for the jury to determine, like other controverted facts. But if the pris- oner chooses to give no evidence on the subject, the jury are not at lib- erty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the partic- ib ular crime charged.
An indictment for forgery lies for making and issuing a false instru- ment in the name of another, re- questing persons to whom goods have been sent by the owner, to deliver them to the defendant; the latter having induced the owner so to send the goods, by falsely repre- senting that he was directed by those to whom the goods were sent, to buy the same for them. Harris v. The People, 664
6. And it is sufficient to alledge in the indictment, that the forgery was with intent to defraud the persons to whom the goods were sent, and to whom the order was directed.
1. Where a defendant, by a subse- quent deposition, expressly contra- dicts and falsifies a former one made by him, and in such subsequent de-7. position expressly admits and al- ledges that the former one was intentionally false, at the time it was made; or in such subsequent deposition testifies to such other facts and circumstances as to ren-
An indictment for obtaining by false pretenses, the signature of a per- son to a deed of real estate, should aver that the prosecutor owned, or had some interest in the lands des- cribed in the deed, or that the deed contained covenants rendering him
9. Where such an indictment did not alledge that the grantor in the deed owned or claimed any title to the lands conveyed thereby; and the description of such lands was in the most general terms, as, certain lands in the state of Texas and United States of America; and the date of the deed was nowhere averred, so that it would be impossible to iden- tify the instrument; and it did not appear that the deed would tend to the hurt or prejudice of the prosecu- tor; it was held-in the absence of any averment that the deed could not be more particularly described -that the indictment was defective.
1. A conveyance not founded upon a pecuniary consideration is not good as a bargain and sale. Corwin v. Corwin, 219
2. Natural love and affection is a suffi- cient consideration to support a con- veyance as a covenant to stand seised to uses; but the considera- tion of love and affection must be founded upon the relation of blood. A marriage between the grantee and the daughter of the grantor is not such a consideration as will support a covenant of that nature. ib
An assignment of property in trust for the payment of the debts of the assignor, directed the assignees to take possession of the premises forthwith, and within convenient time as to them should seem meet, by public or private sale for the best price that could be procured, to convert the property into money, &c. The assignment also contained a clause authorizing the assignees to ask, demand, sue, &c. and com- pound and agree for all or any part of the debts due and owing to the assignor, as the assignees should deem meet. Held, that the assign- ment was fraudulent in law and in fact, and therefore void as against creditors. Woodburn v. Mosher, 255
2. Where a right of action exists in favor of a person for the recovery of the possession of real estate, and such person dies, and the estate descends to his heirs, they may re- cover upon the seisin of their ances- tor. And, the writ of right being abolished by statute, the action of
7. Where it appears, on the trial of an ejectment suit, that the individual defendants were in possession of separate rooms in a dwelling-house 2. on the premises, and of separate parcels of land as tenants of a co- defendant, the plaintiff is bound to elect against which of the defend- ants he will proceed; and a verdict
must be rendered in favor of the other defendants. A general ver- dict in such a case, can not be sus- tained.
8. In an action brought since the adop- tion of the code, to recover the pos- session of land, founded on a legal title in the plaintiff, an equitable right in the defendant to a convey- ance is not a defense, any more than it was previously. Crary v. Good- man, 657
When one takes as co-heir and ten- ant in common, by descent, he can not in an action by his co-heir, prove that the ancestor had no title. Cor- win v. Corwin, 219
Where a party presenting a petition to the court, praying for the parti- tion of lands held in common, stated therein that he, together with L. and the other defendants in the partition suit, were possessed of the lands as tenants in common, and such petition was sworn to, and filed, and became a matter of record, and the foun- dation of the subsequent proceed- ings; Held that the petitioner was estopped by the record from after- wards denying that L. was a tenant in common with him, at the time of filing the petition. Van Orman v. Phelps, 500
4. A person entering upon premises, under the title of another, is estop- ped from controverting his land- lord's title at the time he entered;
but not from showing that the title afterwards passed from his landlord, to another person. Ryerss v. Far- well, 615
5. Estoppels in pais generally consist of acts, declarations, or admissions which have been acted upon by others, and are conclusive against the party making the declarations &c., in all cases between him and the person whose conduct he has thus influenced. ib
6. It is of the essence of this species of estoppel that the representation or act should have influenced the con- duct of the individual setting up or alledging it. ib
See GIFT.
REDEMPTION, 4, 5.
1. Where the reasons given by a party for his refusal to pay over moneys, upon a demand being made thereof, are an essential part of the refusal itself, they are admissible in evi- dence in favor of such party. But the rule is otherwise where a long series of facts is sought to be made evidence, on the ground that they are an answer to the demand. Wal- rod v. Ball, 271
2. If, in such a case, any part of the reasons given are admissible, under the above rule, there should be a specific offer to prove that part, by itself. ib
3. A notice, in a newspaper published in this state, of the death of a person in Texas, is no evidence of his death. Fosgate v. The Herkimer Man, and Hydraulic Company, 287
4. The book of a notary public, kept by his clerk, containing entries of the daily transactions of the notary, in the course of his business, and made by his clerk at the time, is admissible in evidence for the pur- pose of proving the taking of the requisite steps to charge an indorser, in connection with the oath of the clerk; although the latter swears that he has no recollection of having made the entries, or performed the service, but that the entries would
not have been made if he had not done what is there stated. Cole v. Jessup, 395
5. When it is intended that a notarial certificate of the protest of a prom- issory note or inland bill of exchange shall be used as evidence of the facts therein contained, the acts which it attests must be those of the notary, and of him alone. ib
6. When the steps necessary to charge an indorser have been taken by a notary, in person, his entries in his register, signed by him, will be sec- ondary evidence, and presumptive evidence, of the fact, in case of his death, insanity, absence, or removal. But when the demand and notice are made and given by the clerk of the notary and not by the notary himself, they do not fall within the purview of the statute, and must be proved by such evidence as is ad- missible at common law.
7. Where the memorandum book of a notary is kept by his clerk, and the entries are in the hand-writing of the latter, and were made at the time they bear date, such book may be treated as the memorandum book of the clerk for the purpose of per- mitting him to refresh his memory ib by examining it.
8. In an action upon a note or contract for the payment of a specified sum, in wagons, the defense was that the wagons had been delivered by the defendants, according to contract. It was proved that the plaintiff's im- mediately on seeing the wagons, wrote a letter to their attorneys, at the place where the defendants re- sided, declining to accept the wag- ons on the contract, pointing out their defects, and suggesting a course for the defendants to adopt ; and directing the attorneys to com- municate it to the defendants, which they accordingly did. Held, that such letter was admissible in evi- dence, as being the notice by the plaintiffs of their non-acceptance of the wagons, and of their specific ob- jections to them. Newcomb v. Cra- mer, 402
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